1 BARBARA J. PARKER, City Attorney, CABN 069722

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JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

BARBARA J. PARKER, City Attorney, CABN 069722 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) 238-3601 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 7677Oakport Road, 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: February 22, 2021 Time: 3:00 p.m. Courtroom 2, 17th Floor Hon. William H. Orrick

Case 3:00-cv-04599-WHO Document 1423 Filed 02/12/21 of 49

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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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i 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) ......................................................................................................... 1

II. TASK 5 (COMPLAINT PROCEDURES FOR IAD) .................................................. 3

III. TASKS 24 (USE OF FORCE REPORTING POLICY) & 25 (USE OF FORCE

INVESTIGATIONS AND REPORT RESPONSIBILITY) .............................................. 15

IV. TASK 41 (USE OF PERSONNEL ASSESSMENT SYSTEM AND RISK

MANAGEMENT) .............................................................................................................. 16

V. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY) ............................................ 19

CONCLUSION .................................................................................................................. 20

THE CITY’S STATEMENT ........................................................................................... 24

OVERVIEW ....................................................................................................................... 24

I. THE CITY’S ONGOING EFFORTS TO REDUCE RACIAL DISPARITIES ........... 25

A. Internal Race and Equity Work ............................................................................ 25

1. Academy Update .............................................................................................. 26

2. Efforts to Recruit and Hire African American and Female Officers ............. 27

B. Reducing Racial Disparities in Policing ............................................................... 29

II. POLICY DEVELOPMENT AND PUBLICATION .................................................... 31

A. Training Bulletins .................................................................................................. 31

B. Internal Affairs Division (IAD) and Criminal Investigation Division (CID)

Policies ......................................................................................................................... 32

III. STOP DATA AND PAS/RISK MANAGEMENT—TASKS 34 AND 41 .................. 33

IV. INTERNAL AFFAIRS TIMELINES—TASK 2 ........................................................ 34

A. Recent Complaint Trends ...................................................................................... 36

V. FORCE INVESTIGATION AND REPORTING—TASKS 24 AND 25 ................... 38

A. Type 32 Use of Force Reporting Update ............................................................... 41


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ii JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

B. OIG Review of the Department’s Oversight of its Canine Program ................... 41

CONCLUSION ................................................................................................................. 43

THE OPOA’S STATEMENT ......................................................................................... 44


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1 JOINT CASE MANAGEMENT STATEMENT Case No. 00-cv-4599 WHO

PLAINTIFFS’ STATEMENT

PLAINTIFFS’ CURRENT POSITION

The Independent Monitor for the OPD has issued two status reports (the 71st

and 72nd Reports) since the last Case Management Conference statement was filed.

OPD remains out of full compliance with six tasks that were out of compliance as of

the last Case Management Conference Statement: 1. Task 2 (Timeliness Standards

and Compliance with IAD Investigations – not in compliance); 2. Task 5 (Internal

Affairs Division (IAD) Complaint Procedures – deferred); 3. Task 24 (Use of Force

Reporting Policy – in partial compliance); 4. Task 25 (Use of Force Investigations

and Report Responsibility – in partial compliance); 5. Task 30 (Executive Force

Review Board—deferred); 6. Task 34 (Stop Data – in partial compliance); and 7.

Task 45 (Consistency of Discipline – in partial compliance). Four of these tasks

(Tasks 2, 24, 25, and 30) were in full compliance as recently as January of 2019.

Task 41 (Use of Personnel Assessment System and Risk Management) remains

deferred while OPD completes the transition to Vision, its new risk management

database.

Plaintiffs’ will outline their concerns regarding specific NSA tasks, as well as

developments that impact multiple NSA tasks, below:

I. TASK 2 (TIMELINESS STANDARDS AND COMPLIANCE WITH IAD

INVESTIGATIONS)

Task 2 requires that the Internal Affairs Department of the OPD complete

internal investigations in a timely manner, and had been inactive between 2015

and 2019. The IMT reports that, per a recent discussion with the Office of Inspector

General, the IMT learned “that the Department has been assessing its investigative

timeliness by calculating the number of days between the intake date and the

approval date for each case – not the complaint receipt date and approval date.”

(71st IMT Report, p. 3). The intake date is not always the same as the complaint

date (for example, if a complaint was received over the weekend or on a holiday, the


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Internal Affairs Department might not learn of that complain until several days

later); moreover, the IMT found that, upon examination of complaints where the

complaint date and intake date fell on different days, it also “appeared that there

were other delays that did not result from weekends or holidays.” (71st IMT Report,

p. 3)

As noted in Plaintiffs’ previous Case Management Conference Statement,

Plaintiffs’ received an email on August 12, 2019 from then-Chief Anne Kirkpatrick

stating that “we do not have a backlog anymore in IA.” This email was incorporated

in Plaintiffs’ CMC statement at the time, and Plaintiffs’ took the statement at face

value. Eighteen months and two Chiefs later, it appears that OPD remains unable

to calculate investigative timelines properly, much less complete investigations

within said deadlines. It is therefore unsurprising that OPD remains out of

compliance with Task 2.

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 45 Class I misconduct cases during the period covered by

the 69th IMT Report, and determined that 30 of these cases were completed in a

timely manner. This represents a 67% timely-completion rate. The IMT previously

described a 69% timely completion rate as "still far below compliance.” (69th IMT

Report, page 3), and the current compliance rate is even worse. In fairness to the

new leadership at IAD, these figures represent a marked improvement over OPD’s

staggering 38% timely-completion rate during the period covered by the 66th IMT

Report, but it still falls short of the 85% compliance threshold required by the NSA.

This is progress, but more obviously needs to be done.


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Similarly, of the 77 Class II cases reviewed by the IMT during the period

covered by the 71st IMT Report, 58 were in compliance with established timelines.

This represents an 84% compliance rate with IAD policy and is barely short of the

85% compliance threshold mandated by the NSA. This 84% compliance rate for

Class II investigations remains unchanged from the previous reporting period. The

Department’s most recent biweekly compliance update (280th compliance update,

January 10, 2021 to January 23, 2021) notes that there was one Class 1

investigation and two Class II investigations approved during that two week

reporting period that missed the 180 day timelines.

Although it appears on paper that OPD is making progress toward once

again achieving compliance with Task 2, Plaintiffs’ remain baffled by IAD’s inability

to complete investigations within the 180-day time limit for more than one calendar

year now, particularly when the OPD was in compliance with this task for so long

that it became inactive for four years.

II. TASK 5 (COMPLAINT PROCEDURES FOR IAD)

OPD had been in partial compliance with Task 5, which pertains to

Complaint Procedures for the Internal Affairs Division, since May 2015. On March

23, 2016, the Court issued an Order indicating that irregularities and potential

violations of the NSA occurred in IAD investigation 15-0771. The Order noted that

the investigation raised issues of accountability and sustainability of compliance.

The IMT previously assessed this task in the 64th IMT Report, published on

October 25, 2019. This report deferred Task 5 compliance “based on the provisions

of the March 23, 2016 Order, our general concerns, and the findings of our

forthcoming analysis of the Department’s investigation of the officer-involved

shooting of March 11, 2018”. (64th IMT Report, p. 9). The IMT most recently

assessed Task 5 compliance in their 71st Report, submitted December 2020, and

stated that this Task remained deferred as “OPD is currently challenged by

investigations emanating from demonstrations in May and June [2020] – to include


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a Level 1 use of force – as well as an officer-involved shooting outside City limits.”

The final (278th) Biweekly Compliance Update issued by OPD in 2020

indicates that total complaints rose from 1435 in 2019 to 1589 in 2020. This

includes an increase in misconduct complaints and service complaints. OPD

attributes the increase in misconduct complaints to the 53 total cases generated

during the George Floyd protests between May 29 and June 1, 2020, and OPD has

explained to Plaintiffs’ attorneys that increase in service complaints is in part due

to an overstretched and understaffed Department during the current pandemic.

While both of these explanations may be correct, they nevertheless miss the point:

the 53 cases related to the George Floyd protests are still complaints against OPD,

and even those 53 complaints do not account for the total increase year-over-year.

Moreover, the most recent (280th) Biweekly report, for the period between January

10th and January 23, 2021, indicates that year-to-date misconduct complaints have

nearly doubled from 31 to date in 2020 to 59 so far this year, 2021. It therefore does

not appear as if the upward trend can be attributed to a ten day period last

summer.

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 comes on the heels of reporting by local journalist Darwin Bond-

Graham, news editor of The Oaklandside, who revealed 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”. The very name of the account implies

institutional knowledge of OPD, as the “Crime Reduction Team” (or CRTs) is an

entity specific to OPD. CRTs are OPDs primary means of addressing and reducing


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violent and other serious crime in the City, as well as OPD’s first responders to

crowd management events.

It is therefore extremely inappropriate and concerning that several

“@crimereductionteam” posts explicitly mocked OPD policies regarding use of force

reporting and police brutality. Although it is not definitively clear when this

Instagram account was created, Plaintiffs’ attorneys are in possession of a

Department-wide email from September 23, 2020 that states OPD command staff

“have come across a page on Instagram that some officers in our department

‘follow’”, with appended screenshots of “@crimereductionteam” posts.

Later that very day, September 23, the @crimereductionteam Instagram

account referenced that email in a post:

The comment to the right, also posted by the person or persons operating the

@crimereductionteam Instagram account, implies that it “only took five days” for

the account to be reported to OPD command staff, with an icon that suggests this

was the handiwork of a “rat”.

Three days later, on September 26, 2020, another reference to the September


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23, 2020 email was published on the @crimereductionteam Instagram account:

The implication here, apparently, is that only “a fucking idiot” would heed a

Departmental directive about following Instagram and/or other social media

accounts.

Subsequent posts go beyond insubordination, making a mockery of

foundational principles of equitable policing. One post likened use of force reporting

regarding “how many times you punched a suspect in the face” to complex

mathematical equations, and suggested boilerplate language about “using the

necessary force to effect the arrest” to obscure the amount of force used.


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Multiple other posts allude to OPD Use of Force monitoring and reporting,

including one published October 21, 2020, that implies two squads of police officers

who witnessed uses of force would, in clear contravention of OPD policies, pretend

and/or testify that they did not witness any use of force:

A subsequent post, dated November 1, 2020, makes light of “some dude you

guys beat up after you had just told the sergeant that you should be taken off Use of

Force monitoring”, a clear reference to the Use of Force monitoring process

discussed in Risk Management Meetings attended by Plaintiff’s attorneys and

Judge Orrick over the last several years:


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OPD’s very own Office of Inspector General (OIG) has determined that

officers’ systematically under-reported use of force incidents,1 and that “the

percentage of African American subjects of force that went unreported is higher

than the percentage of African American arrestees.” (p. 2, OIG Audit). In fact, in

every instance where the 2019 OIG Audit determined that officers did not properly

report Use of Force, the subject of every unreported force was either Hispanic or

African American. (p. 2, OIG Audit). Given these sordid findings, Plaintiffs’

attorneys demanded a top-down review, but then-Chief Anne Kirkpatrick assured

community members that OPD “officers’ patience and professionalism in their

community interactions reflect the cultural change within the Department.”

(Kirkpatrick Response, p. 2) The above posts belie that assertion. They suggest

that certain officers routinely lie about force usage.

Other posts from the @crimereductionteam Instagram account direct ire at

OPD’s Internal Affairs Division (IAD) and its Investigators. A September 29, 2020

posting depicts someone describing an Internal Affairs investigator as “a garbage

person”, to the apparent dismay of their attorney, while a September 30, 2020 post

compares sustained complaints related to protests to Oprah Winfrey giving away

cars to audience members:

///

1http://www2.oaklandnet.com/oakca1/groups/police/documents/report/oak072446.pdf


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The comment appended to the lower post admonishes officers: “No face, no

case. Except in this instance where you recorded yourself and then uploaded it…”.

The other comment suggests that body-worn cameras (BWCs) should not be worn

and/or turned on during crowd control operation. Such behavior would be a


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violation of OPD Departmental Order I-15, which states that “during crowd control,

protest, or mass arrest incidents members shall use their PDRD consistent with

this policy unless otherwise directed by the Incident Commander.” (OPD GO I-15, p.

4)

Although many of the @crimereductionteam posts pertain to use of force and

IAD investigations, others are overtly sexist. A September 30, 2020 post depicts

various officers (some “with wives” or “with girlfriends”, others “single”) and

command staff personnel declaring a “new female recruit” is “Mine?”

An October 5, 2020 image depicts a scene from a pornographic film where a

white woman – captioned “Cop that just wants to fight crime” – is about to be gang-

raped by five African American men, who are labelled “Internal Affairs”, “Police

Commission”, “Command Staff”, “Spineless Cops”, and “Criminals taking advantage

of the situation”.

///


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These posts call to mind the sordid recent history of the Department. In

2016, following a scandal that involved multiple Oakland Police Officers having sex

with a minor, Oakland cycled through three Police Chiefs in the span of a week. At

the time, Mayor Schaaf likened the Department to a “frat house” and decried the

culture at OPD as “toxic” and “macho”. More recently, OPD has had trouble

recruiting female candidates, as well as retaining and promoting female officers

within the Department. As Plaintiffs’ attorneys informed the Court in September,

the most recent graduating class at that time contained no female African American

officers. This was also true for at least the preceding three graduating classes. In

her statement before the Court in September, Mayor Schaaf stated that “we will

have at least two African American females in the 184th Police Academy,” and

promised to present a “targeted recruitment plant” to the Court at this Case


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Management conference. (09.22.20 WHO CMC Transcript, p. 46) Plaintiffs’

attorneys look forward to hearing about these specific plans at this Case

Management Conference.

The above images suggest that the “toxic” and “macho” culture Mayor Schaaf

described half a decade ago has not been stamped out. It is, frankly, unsurprising

that female and minority candidates are repulsed by such a hostile atmosphere. It

is incumbent on OPD to ensure that there is no room for such a toxic culture to take

root within the Department.

The foregoing misogyny is, unsurprising, coupled with another ugly prejudice

that has no place in Oakland: racism. A November 6, 2020 post mocked the killing

of George Floyd, who died after Minneapolis Police Department Officer Derek

Chauvin knelt on Mr. Floyd’s neck while Mr. Floyd was handcuffed and prone on

the ground:

Plaintiffs’ attorneys have identified at least one Oakland Police Officer who

apparently liked at least one of the above-copied posts in his own name. Per this

Court’s January 14, 2021, Plaintiffs’ attorneys await the results of the Compliance


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Director-supervised Internal Affairs investigation into this matter. It should be

noted, however, that the @crimereductionteam Instagram fiasco is not the only

social media morass that OPD finds itself in at the moment.

Another former Oakland Police Officer, Jurrel Snyder, was involved in the

January 6, 2021 insurrection at the United State Capitol in Washington, D.C., and

is affiliated with the anti-government “Boogaloo” movement. Although there is no

known connection between Snyder and the @crimereductionteam Instagram

account (in fact, the author(s) of the @crimereductionteam account appear(s) to be a

current employee with real-time access to Department-wide emails sent only to

current staff), it is worth noting that Snyder was himself assigned to OPD’s Crime

Reduction Team, and was involved in at least one fatal officer-involved shooting as

a member of the CRT in 2013.2 He also shot and killed another Oakland resident

while working as a Police Officer in 2007.3

At least three current Oakland Police Officers “liked” and/or commented on

posts made by Snyder about the insurrection at the US Capitol. OPD subsequently

released a statement on January 7, 2021, which read, in part:

“It has come to our attention that a former employee made statements that

he attended the events in Washington DC and defended the actions of the

takeover at the Capitol. The statements made by the former employee were

reprehensible and we wholly disavow his remarks. This former employee was

separated from his employment with the City of Oakland nearly six years

ago. We want to assure our community that those statements offend the morals

and ethics of the women and men of our Department.”

(emphasis not original)

2 https://oaklandside.org/2021/01/07/former-oakland-police-officer-defends-capitol-mob-and-spreads-conspiracies-earning-likes-from-opd-officers/ 3 https://oaklandside.org/2021/01/07/former-oakland-police-officer-defends-capitol-mob-and-spreads-conspiracies-earning-likes-from-opd-officers/


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The ugly reality is that some of Snyder’s statements are apparently embraced

by current OPD members, as reflected in their comments on Snyder’s online posts

as well as in the @crimereductionteam posts excerpted above. Moreover, the

Boogaloo movement that Snyder openly supports counts among its adherents the

murderers of Federal Protective Services officer David Underwood on May 29, 2020,

as he guarded the Ronald Dellums Federal Building in Oakland. The fact that OPD

personnel would publicly align themselves with domestic terrorists who murdered a

Federal Officer in the very city they have sworn an oath to protect speaks to a

festering and rotten institution.

This is completely unacceptable to Plaintiffs’ attorneys, as it must be to all

stakeholders, including OPD command staff, elected officials, rank-and-file officers,

and the community at large. This Court wrote that the investigation into these

matters “may well demonstrate the defendants’ commitment to accountability and

the sustainability of the reforms in the NSA.” (Dkt. 1419). While this may be true,

the very existence of these persistent cultural problems after almost two decades of

external oversight do not bode well for OPD’s ability to reform and self-govern

moving forward.

Finally, it is not lost on Plaintiffs’ attorneys that OPD apparently did not

initiate an Internal Affairs investigation regarding the above-described social media

accounts until the contents were reported on by Mr. Bond-Graham and other

journalists. OPD was on notice that personnel were engaging these accounts since

at least September 2020, when the Department-wide email regarding the

@crimereductionteam Instagram account was circulated. In the intervening

months, they either 1. Did not continue to monitor these accounts, or 2. Determined

that no further investigation was warranted until journalistic reporting on these

accounts provoked widespread public outrage and condemnation. Both options are

equally damning, and represent a cataclysmic failure of judgment, and leadership.

The very point of the NSA is to establish a framework for effective self-governance


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without the oversight of Plaintiffs’ attorneys, the Monitor, and this Court. Time

and again, OPD demonstrates that it is unwilling or unable to rise to this challenge.

III. TASKS 24 (USE OF FORCE REPORTING POLICY) & 25 (USE OF

FORCE INVESTIGATIONS AND REPORT RESPONSIBILITY)

OPD had been in compliance with Tasks 24 (Use of Force Reporting Policy)

and 25 (Use of Force Investigations and Report Responsibility) of the NSA since

2015. In November 2018, this Court reactivated these Tasks as a result of Plaintiffs’

and the Monitoring Team’s concerns about Use of Force Reporting procedures at

OPD. Specifically, OPD had reported ever-decreasing uses of force numbers even as

the total number of uses of force, especially those pertaining to weaponless defense

techniques and pointing of a firearm at a subject, were systematically

underreported for years. Following interventions by the IMT and Plaintiffs’, OPD

completed policy revisions to rectify some of the deficiencies uncovered in an OIG

Use of Force audit, including the publication of Special Order 9196, which clarified

use of force policies regarding the pointing of a firearm.

The IMT reviewed 109 Level 3 and Level 4 use of force reports during the

reporting period covered by the 72nd IMT report, and did not identify any instances

where they believed the use of force was inappropriate. They did, however, “identify

a number of instances where officers who assisted in restraining a combative person

did not report having used force.” (72nd IMT Report, p. 9). Plaintiffs’ attorneys

worked with the IMT and OPD to address this issue, and a revision was made to

OPDs Use of Force policy in order to clarify reportable uses of force. The IMT notes

that they have nevertheless “continued to identify concerns and deficiencies” (72nd

IMT Report, p. 10) regarding use of force reporting, although all but two of the

Level 3 and 4 Uses of Force that have been reviewed to date – inclusive of the 109

reviewed for the 72nd IMT report – occurred prior to the revisions to OPD’s Use of

Force policy in February 2020. The IMT’s review of these same 109 use of force

events also revealed two incidents where the IMT concluded “the force may not have


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been appropriate.” (72nd IMT Report, p. 12) OPD had already initiated an internal

investigation in both of these instances.

The aforementioned revisions to OPD’s Use of Force (specifically, the

publication of Special Order 9196, which clarified use of force policies regarding the

pointing of a firearm and classified such incidents as Type 32 uses of force that had

to be reported) precipitated a massive increase in total uses of force during 2020.

The final biweekly compliance update issued in 2020 (278th Biweekly Report)

indicated that there were 2,996 total uses of force, up from 1,555 in 2019. Level 4

uses of force were primary driver of this surge: while there were 1,429 total in 2019,

that figure jumped by over 1,200 to 2,631. This can largely be attributed to Special

Order 9196, and these numbers undoubtedly paint a more accurate picture of the

department’s use of force totals than figures from previous years when pointing-of-

firearm uses of force were massively undercounted. However, it must be noted that

use of force numbers increased at all levels- there were five more Level 1 uses of

force in 2020 than the previous, three more Level 2 uses of force, and a whopping

231 more Level 3 uses of force year-to-year. The Level 3 increase represents a more

than three-fold jump in total in such uses of force, from 101 in 2019 to 332 in 2020.

OPD attributes this surge to “the use of chemical agents” during protest events in

May and June 2020. These events are under investigation, and Plaintiffs’ attorneys

look forward to reviewing the results of these investigations.

IV. TASK 41 (USE OF PERSONNEL ASSESSMENT SYSTEM AND RISK

MANAGEMENT)

Task 41 compliance remains deferred, due to the ongoing reconstruction of

the Vision database. The recently-hired Data Manager is in place, and the City of

Oakland’s Information Technology Department (ITD) continues to troubleshoot data

input and presentation problems as they are identified. The IMT reports that the

construction of data reports is continuing, and that approximately 80% of Vision

reports and 66% of reports related to the PAS risk review process have been


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completed. (72nd IMT Report, page 24) Such data problems are not new. The IMT

described data-retention and transition issues while moving from PRIME to Vision

almost one year ago, in April 2020. This data is also the fundamental building

block of the whole system. Unless it is there, in real time, and accessible, Vision

cannot evolve into the risk management tool envisioned by all parties.

Like the IMT, Plaintiffs’ attorneys hope that Vision can be used to improve

the Risk Management Meetings (RMMs) that take place at all supervisory levels of

the Department. Plaintiffs’ attorneys regularly attend these meetings, including

the most recent such meeting in February 2021. During a recent RMM, the IMT

“raised significant questions about the importance and clarity of some data –

particularly the stop data.” (72nd IMT Report, p. 25). The IMT rightly notes that

this is a “refreshing critique” that does not discount OPD’s impressive use of data to

discuss stop data, possible patterns of bias in stops, complaints, the ratio of

intelligence-based and non-intelligence based stops, pursuits, and, officers who are

under supervisory monitoring and/or intervention. Further progress is nevertheless

necessary.

As Plaintiffs’ attorneys have previously mentioned, there is no general order,

training bulletin, or any other writing known to us which explains what a Risk

Management Meeting is, what is expected of the people who run it, or the people

who are assigned deliverables. This should be codified. Further, while problem

officers are often identified and discussed, there is insufficient clarity about

subsequent remediation efforts, and little inquiry about the details (including the

successes!) that are derived via Supervisory monitoring. Further, Risk

Management Meetings often focus so narrowly on individual officers and numbers

that larger trends are missed and/or ignored altogether. For example, the massive

uptick in complaints described above should also be noticed, discussed, and acted

upon by OPD in real-time. Plaintiffs’ attorneys recently inquired with IAD about

the large uptick in complaints, and learned that this was already on OPD’s radar.


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Such proactive efforts are commendable, and a departure from the norm in previous

years. Plaintiffs’ attorneys and the IMT should not be relied upon as the driving

force for investigating important big-picture developments. We are heartened to see

OPD proactively perform such analyses when it comes to complaints, and hope that

this will be replicated going forward.

Finally, Plaintiffs’ attorneys once again note that Stop Data plays an outsized

role during Risk Management Meetings. Stop Data is critically important, and

deserves OPDs attention. Stop data is not, however, the only – or even primary –

component of Task 40 of the NSA. Task 40 requires that OPD collect twenty

specific kinds of data that must be incorporated into the Personnel Assessment

System (PAS). Some of these, such as complaints and pursuits, are documented

comprehensively, and then discussed at Risk Management Meetings. Others have

never been mentioned at any RMM attended by Plaintiffs’ attorneys.

For example, Task 40 requires that OPD collect data on

• “All civil suits and/or tort claims related to members’ and

employees’ employment at OPD, or which contain allegations which

rise to the level of a Manual of Rules violation” (Task 40, item #7)

• “All charges of resisting or obstructing a police officer, assault on a

police officer, or assault-with-a-deadly-weapon on a police officer.”

(Task 40, item #13)

• “Criminal cases dropped due to concerns with member veracity,

improper searches, false arrests, etc.” (Task 40, item #19)

Plaintiffs’ attorneys previously queried whether this information tracked in

the Vision system, and did not receive a definitive answer. To the knowledge of

Plaintiffs’ attorneys, none of these data points are routinely discussed at Risk

Management Meetings or otherwise incorporated into OPD’s risk management

assessments.

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V. TASK 45 (CONSISTENCY OF DISCIPLINE POLICY)

OPD remains in partial compliance with Task 45, which requires that

discipline is imposed in a fair and consistent manner. Plaintiffs’ attorneys continue

to follow OPD’s response Police Discipline Disparity Study” (Disparity Study)

drafted by the Hillard Heintze consulting firm, which previously determined that

“black sworn employees were more likely to have their allegations result in a

sustained finding than other employees.” Specifically, this report found that:

• “Over the five-year time period, black employees were 37% more

likely to have an allegation against them result in a sustained

finding.” (Disparity Study, p. 10).

• For Class One complaints (the most serious complaints), black

individuals are almost 39% more likely to have the complaint

sustained, while controlling for gender and years of service.”

(Disparity Study, p. 10).

• The IAD policy allowed sergeants to be “fact finders and

adjudicators has the potential to lessen an investigator’s neutrality”

and that this system “is not consistent with promising practices

used in departments similar in size to Oakland.” (Disparity Study,

p. 11)

• “Twice as many black trainees were released [from OPDs Academy]

than white or Hispanic trainees. (Disparity Study, p. 41)

• FTO (Field Officer Training) completion rates for black and Asian

trainees lagged behind those for Hispanic and white trainees.”

(Disparity Study, p. 42)

• Just 18.68% of sworn respondents believe that OPD’s disciplinary

process is fair, while 81.32 percent of respondents disagreed with

the statement “OPD’s disciplinary process is fair.”


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Plaintiffs’ believe that the above-described findings violate NSA Task 45,

which requires consistency of discipline. The Hillard Heintze Report concluded

with series recommendations that it urged the OPD to adopt, and OPD reports that

nearly all of these recommendations have now been implemented. (72nd IMT Report,

p. 29) However, Plaintiffs’ attorneys have not independently verified that this has

in fact occurred. Several Departmental policies germane to the requirements of

Task 45 are currently being revised, and Plaintiffs’ attorneys will review these

revisions as they are completed.

At the conclusion of our most recent Case Management Conference before

this Court, Judge Orrick noted that “racial disparities” are the “hardest” issue, as

well as the issue that “started this case.” (09.22.20 WHO CMC Transcript, p. 49).

Plaintiffs’ attorneys agree. It is critical that OPD take decisive action to resolve

internal racial disparities, as well as systematic differential treatment of Oakland

citizens on the basis of race.

CONCLUSION

Once again, OPD has a new Chief of Police. As ever, the new Chief has

inherited a department in turmoil, reeling from yet another self-inflicted scandal.

Oakland is experiencing an exponential increase in violent crime, including a

1400% increase in homicides between January 2021 and January 2020. Long-

promised “cultural change” and reforms have never fully-materialized, as evidenced

by the sexist, misogynist, and insubordinate social media posts highlighted above.

Public trust in the Department remains low, and OPD is out substantially farther

from compliance with all NSA Tasks than it was just two years ago, in January

2019.

At his swearing-in ceremony on February 8, 2021, Chief Armstrong stated:

“Under my leadership, OPD will have a laser focus on getting each [NSA] task in

compliance, while practicing constitutional policing, fair and unbiased treatment of

our community. This reflects the strong values of the City of Oakland. Moving the


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Department into compliance with the Settlement Agreement is one of my top

priorities. But in order to achieve that goal, it requires a cultural change within the

organization And that change starts today.”4

Plaintiffs’ attorneys have worked with Chief Armstrong for many years. We

know him as a man of integrity and a dedicated public servant. He has long been

an advocate for substantive, sustainable change within the Department. Plaintiffs’

attorneys hope that he can, finally, bring OPD into compliance with the NSA. We

wish him nothing but success as Chief of Police, and stand ready to work with him

in every and any way to attain these goals. His success would be the success of all

Oaklanders, but there is much work to be done.

There is some reason for optimism. RMMs have been an unequivocal force

for positive change at OPD. Pursuits are down. A KTVU investigation found that

Bay Area law enforcement agencies engaged in long-term reform efforts “are paying

much less in civil penalties in recent years for injuring or killing people than many

departments left to police themselves”, and cited Oakland’s “stunning turnaround”

from paying $57 million in damages for excessive force or wrongful death between

2000 and 2010 to just $3 million in the last five years.5 The number of officer-

involved shootings and stops of African Americans and Latinos have seen

significant drops since the beginning of the NSA.

On the other hand, the Los Angeles Times recently performed an analysis of

California Department of Justice statistics and determined that a number of the

state’s largest law enforcement agencies, including Oakland, sustained zero racial

profiling complaints between 2016 and 2019.6 Statewide, approximately 8% of such

complaints were sustained. Since that there were 251 such allegations in Oakland

4 https://sanfrancisco.cbslocal.com/2021/02/08/oakland-native-leronne-armstrong-sworn-in-as-chief-of-police-in-emotional-ceremony/ 5 https://www.ktvu.com/news/payouts-for-killings-and-injuries-plummet-for-bay-area-police-departments-undergoing-reforms 6 https://www.latimes.com/california/story/2020-12-14/california-police-racial-profiling-complaints-rejected


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between 2016 and 2019, one might expect roughly 20 of those complaints to be

sustained given the (already improbably-low) statewide rate (8% of 251 = 20). The

fact that not one such complaint was sustained is, statistically, unlikely. It is also

intuitively incongruent with the overtly racist memes that OPD officers are

apparently positing to, and liking on, Instagram. And it is generally incompatible

with Dr. Jennifer Eberhardt’s study during this same time period, which found that

African Americans are handcuffed more frequently than Whites in analogous

situations, and that some OPD officers talk to African Americans differently than

they talk to Caucasians.

More generally, the raw data is not a cause for optimism. The recent rise in

total number of out-of-compliance tasks, and the lack of progress getting those

Tasks back into compliance, is worrying. Complaints against OPD personnel

persist relentlessly upward. Surging ShotSpotter activation numbers and the

corollary spike in homicides and other violent crimes are alarming. The City of

Oakland faces enormous financial shortfalls in the near term, including a proposed

$15 million cut to the OPD budget that will include a reduction in discretionary

overtime for crime prevention.

During the most recent Case Management Conference in September 2020,

referring to deficiencies in OPD’s handling of the shooting of Joshua Pawlik, Judge

Orrick stated:

The fact that these deficiencies existed points to a culture that lacks

accountability, a culture more interested in burying problems than

confronting them. That kind of a culture can only exist when the leaders

allow it to. Leaders demand accountability, integrity, and results.

Without that OPD is going to stay in an endless loop that fails to reach

the goals that it agreed to in implementing the NSA.

Plaintiffs’ attorneys hope that Chief Armstrong, Mayor Schaaf, and all other

stakeholders heed this advice. It is well past time for the NSA to draw to a close. It


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is imperative that OPD, and the elected officials that oversee the Department, take

the necessary steps to finally bring OPD into full and final compliance with all

outstanding Tasks mandated by the NSA.


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THE CITY’S STATEMENT

OVERVIEW

The City is thrilled to announce that Chief of Police LeRonne Armstrong will

lead the Oakland Police Department. On February 5, 2021, Mayor Schaaf

announced her selection of Chief Armstrong from among four candidates that the

Oakland Police Commission approved for selection following a nationwide search.

Chief Armstrong was born and raised in Oakland and has served the Department

for more than 20 years, most recently as Deputy Chief. Chief Armstrong was sworn

in on February 8, 2021, and on the same date announced his executive team:

Darren Allison will remain Assistant Chief, veteran Captain Christopher Bolton

will serve as Deputy Chief of Bureau of Field Operations (BFO) 1, veteran Captain

Nishant Joshi will serve as Deputy Chief of BFO 2, and previously Interim Deputy

Chief Drennon Lindsey will serve as Deputy Chief of the Bureau of Investigations.7

This marks the first time since 2013 that the Department will operate with no

executives in an acting or interim capacity. The City is confident that under Chief

Armstrong’s leadership the Department will continue to demonstrate its

commitment to fair and equitable policing, community safety, and sustained

improvement.

In this status report, the Department and the City’s leadership respectfully

update the Court on the following: (1) steps the City is taking to achieve equity

within the Department, as well as to examine and reduce disparities in policing; (2)

policy development and publication; (3) the City’s continuing work to collect and

best utilize stop data (Task 34) and maximize its new risk management system

(Task 41); (4) the City’s efforts toward achieving sustainable compliance with

Internal Affairs investigation timelines (Task 2) and recent complaint trends; and

(5) overall improvements in force reporting and investigations (Tasks 24 & 25).

7 The City will file an updated NSA task-responsibility list as soon as any changes to task assignments are finalized.


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I. THE CITY’S ONGOING EFFORTS TO REDUCE RACIAL DISPARITIES

The City takes to heart that “the nut of this case remains what it was in the

beginning, which is racial disparity.” Dkt. 1404 at 3:22-23, Sept. 22, 2020 Court

Hr’g Tr. We appreciate the ongoing, pervasive nature of racism and racial disparity,

and the pernicious effects of both. The City will not cease its efforts to identify and

root out systems, policies, practices, and individuals that encourage or promote

disparate treatment based on race, and to cure their effects. This includes achieving

sustained positive change in the culture of the Department. It is from this position

that the City approaches the internal investigation into recent allegations that

Department employees have posted or commented on objectionable and

offensive social media content that is contrary to core City values of equity and

respect for all people. The City has engaged outside counsel with experience

conducting internal investigations to lead the Department’s investigation with the

assistance of select highly qualified and experienced Department personnel. The

City’s Community Police Review Agency is conducting a concurrent investigation.

The City understands its responsibility in ultimately ensuring the efficacy of the

investigation, including not only responding appropriately and promptly to any

findings but ferreting out to the extent possible what fostered this conduct by

officers and how the Department can identify and prevent similar conduct in the

future. The City will continue to update the Monitoring Team on its progress.

A. Internal Race and Equity Work

Following the Department’s May 2020 release of the Oakland Police

Department Police Discipline Disparity Study, the Department has continued its

internal race and equity work. The Department has now implemented eleven of the

Study’s fourteen recommendations in whole and two in part, as well as two

additional measures: anonymizing race, ethnicity, and gender information during

(1) the Character Review portion of the Hiring and Background process, and (2)


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when appropriate during Internal Affairs case presentations. The final outstanding

recommendation from the Study is to separate the fact finder and adjudicator on

internal investigations. The Department has decided to run a pilot program on a

subset of internal investigations to evaluate both the efficacy as well as the

workload impact of having an investigator operate solely as fact finder with a

supervisor making the recommendation as to the ultimate adjudication. While the

investigator will reach a conclusion, that conclusion will not be shared with the

supervisor. The Department will, however, compare the investigator’s

determination with the supervisor’s adjudication to determine whether and to what

extent the determination changes when the factfinding and adjudicative functions

are separate. A chart summarizing the ongoing progress of this race and equity

work is attached as Exhibit A. Additions made between September 2020 and

February 2021 are featured in yellow. Ex. A, Race and Equity Work on Discipline

Disparity Study Recommendations (Feb. 2021).

The working group remains engaged—with critical assistance from Stanford

University—in evaluating the effectiveness of interventions already implemented

by the Department over the last several years, conducting further analysis of

existing data, working to determine how to meaningfully measure the impact of

more recent interventions, and assessing the overall impact on discipline disparity.

The Department is currently working to finalize its dataset for all complaint

findings for sworn members in 2020. The Department intends to analyze the 2020

data to make meaningful comparisons to data from previous years and identify

useful benchmarks and metrics for tracking data into the future.

1. Academy Update

In December 2020, the Department commenced its 185th Basic Academy.

The tables below reflect the demographics of police officer trainees in the 185th

Academy.

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Table 1: OPD’s 185th Basic Academy Demographics

Table 1A: Race/Ethnicity and Gender in OPD’s 185th Academy

Significantly, 8% of the officer trainees in the 185th Academy are African

American women. One-third of trainees have an Oakland connection—they were

born in Oakland or currently live in Oakland. The average trainee age is 29. Fifty-

five percent speak one or more languages other than English. And 89% of trainees

have at least some college education.

2. Efforts to Recruit and Hire African American and Female

Officers

The Department is keenly aware of the lack of female applicants for sworn

positions, particularly African American female applicants. While the Department

does have a slightly higher percentage of female officers (14.2%) in comparison to

Gender Race/Ethnicity Residency Language Education

Female 7 Asian 7 Oakland 8 Cantonese 2 Some College 11

Male

29

Black or African

American

12

Other 28 Spanish

11 Associate’s 6

Hispanic or

Latino

11 Other 7 Bachelor’s 12

Pacific

Islander 1

English

Only

16 Master’s 3

White or

Caucasian 4

High School/GED

4

Other or

Undeclared 1

Total

36 Total

36 Total

36 Total

36 Total

36

Race/Ethnicity Female Male Asian 0 7

Black or African American 3 9

Hispanic or Latino 3 8 Pacific Islander 1 0

White or Caucasian 0 4 Undeclared or Other 0 1

Total 7 29


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the 2019 California state (13%) and national (12.8%) average percentages,8 the

Department has struggled to attract women, failing to enlist even a single African

American woman in some previous academy classes.

The Department determined that a critical component of effectively

improving the recruitment of African American women is a grassroots effort to

individually connect current African American officers with potential applicants via

community organizations that focus on engagement with African American women.

Unfortunately, the pandemic has reduced officers’ ability to make and have the

ongoing meaningful in-person connections and conversations that the Department

has found critical for successfully recruiting African American women.

The Department has experienced some success in hiring African American

police officer trainees in recent years. The Department mined existing data from

recruitment and hiring cycles since 2015 to determine whether there are particular

points in the cycle that reduce the number of African American applicants or result

in exclusion of African American applicants at higher rates. An analysis of the data

shows that between 2015 and 2018, the Department hired 68% of African American

applicants, while between 2019 and 2020, the Department hired 87% of African

American applicants—an overall 19% increase. While 3% of African American

applicants withdrew from the hiring process between 2015 and 2018, none

withdrew from the process between 2019 and 2020.

The Department believes its success in increasing African American hires is

the result of using a “whole person assessment” during the background

investigation and character review. The Department uses the latitude provided by

the Commission on Peace Officer Standards and Training (POST) to consider all of

8 Based on the Department’s June 30, 2020 statistics, https://www.statista.com/statistics/195324/gender-distribution-of-full-time-law-enforcement-employees-in-the-us/ (last visited Feb. 4, 2021), and https://www.ppic.org/publication/law-enforcement-staffing-in-california/ (last visited Feb. 10, 2021).


https://www.statista.com/statistics/195324/gender-distribution-of-full-time-law-enforcement-employees-in-the-us/

https://www.statista.com/statistics/195324/gender-distribution-of-full-time-law-enforcement-employees-in-the-us/

https://www.ppic.org/publication/law-enforcement-staffing-in-california/

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the characteristics and information about an applicant beyond those that might

tend to weigh against hiring but do not require disqualification under law or policy.

Notwithstanding this improvement in hiring, the Department recognizes that

there remains a higher rate of attrition among African American officers after they

are hired. Accordingly, the Department understands that it must remain attentive

to racial equity concerns beyond recruitment and hiring, and provide mentorship

and support for officers after they are hired. The Department is engaged in

addressing these concerns and improving this support as part of its ongoing internal

race and equity work.

B. Reducing Racial Disparities in Policing

Between 2017 and 2019, the City reported an overall reduction in stops as

well as a significant reduction in the racial disparity in the Department’s stop rates,

with both reductions having the greatest impact on African Americans. In 2020, the

Department largely maintained its reduction in stop-rate disparities, as reflected in

Figure 1, below, Non-Dispatch Stop Percentages by Race, 2014-2020.9

///

9 The Department has not processed all the stop data forms for 2020 but estimates there are 270 or fewer additional non-dispatch stops (less than 2.5% of the total) not currently reflected in Figures 1 and 2 herein.


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Fig. 1

The actual raw numbers of stops underlying these percentages are depicted

in Figure 2, below, Non-Dispatch Stops by Race, 2014-2020.

Fig. 2


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Notably, the 2020 data reflects an overall average 29% decrease from 2019 in

stops across all races. This decrease is likely due in large part to police officers

making fewer non-dispatch stops during the pandemic. And, while it is true African

Americans saw the greatest reduction in the number of stops in 2020, we are

mindful that the reason for that impact is African Americans are still stopped at a

much higher rate than any other race. We previously noted an uptick in the stop

rate for Latinos in 2019 and acknowledge that this trend has persisted through

2020. The Latino non-dispatch stop rate remains at 26% for a second consecutive

year. The Department is continuing to analyze the data to better understand this

continued increase.

II. POLICY DEVELOPMENT AND PUBLICATION

The summary table below reflects the current status of Department policies

discussed in the City’s previous Court filing and during the last Court hearing.

Table 2

A. Training Bulletins

Following the Executive Force Review Board for the fatal shooting of Joshua

Pawlik, in early 2019 the Board identified and recommended officer and supervisor

training on (1) encounters with armed unresponsive persons, (2) operating

POLICY STATUS

Training Bulletin (TB) III-P.01 –

Armed Unresponsive Persons

Published. Effective March 1, 2021 to allow time for training.

TB III-P.03 –Dedicated Arrest Teams

Published. Effective March 1, 2021 to allow time for training.

TB III-P.04 – Armored Vehicles Police Commission approved on February 11, 2021.

Internal Affairs Policy &

Procedure Manual

Draft sent to Police Commission on February 9, 2021.

CID Level 1 Investigations Policy

& Procedure

Remains in development.

Chief’s Directive Memorandum

Re Administrative Leave and

Modified Duty After Major Force Incidents

Remains in development.


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designated arrest teams (DATs), and (3) using the BearCat—an armored vehicle.

The Department’s drafts of these three “training bulletin” policies were reviewed

and approved by the Monitoring Team after its October 2019 site visit. Thereafter,

the Department shared these policy drafts with the Police Commission and, in late

2020 through early 2021, the Department collaborated with the Commission in ad

hoc committees on all three policies. The committees included community members

in addition to Commissioners and Department members. The Police Commission

voted unanimously on January 7, 2021 to approve Training Bulletins (TB) III-P.01,

Armed Unresponsive Persons, and III-P.03, Dedicated Arrest Teams. The

Department has published these policies and started training in advance of March

1, 2021, the date both policies take effect. On February 11, 2021, the Police

Commission voted to approve TB III-P.04, Armored Vehicles. After fulfilling any

required meet and confer obligations, the Department will publish this policy as

well.

B. Internal Affairs Division (IAD) and Criminal Investigation Division (CID) Policies

An updated IAD Manual has gone through final review by the City Attorney,

Monitoring Team, and the Executive Team. The Department submitted the Manual

to the Police Commission on February 9, 2021. See OPD Critical Policy Tracking

Chart, Oakland Police Commission Feb. 11, 2021 Agenda Packet, Attachment 10,

https://cao-94612.s3.amazonaws.com/documents/Police-Commission-2.11.21-

Agenda-Packet.pdf (last visited Feb. 10, 2021).

After commencing work on the portion of CID’s homicide section’s policy and

procedure governing officer-involved shooting investigations, the Department

decided instead to create a stand-alone policy for investigating all officer-involved

uses of lethal force (Level 1 uses of force). The policy will synthesize the various

policies and procedures that relate to investigations of in-custody deaths and Level

1 uses of force. The Department is actively working to complete a final draft and

begin the review process. This policy is a priority.


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The Department continues its longstanding compliance with the NSA’s OIS

Investigations Review Protocol (Task 31). Task 31 requires certain notifications and

responses in the event of an officer-involved shooting (OIS). On April 16, 2020, five

OPD officers and a Richmond Police Department officer were involved in an OIS.

The incident stemmed from pursuit of a kidnapping and attempted-murder suspect

that ultimately ended with an OIS in Richmond. On November 3, 2020, one OPD

officer was involved in an OIS in Oakland. The incident occurred after several

officers responded to a reported robbery-in-progress at a marijuana dispensary and

the officers encountered a large group traveling in a caravan attempting to gain

access to the dispensary. In each of these two OIS incidents, the Monitoring Team

agreed that the Department complied with all Task 31 requirements and protocols.

See Dkt. 1420 at 19, 72nd Report at 19 (Feb. 5, 2021); Dkt. 1387 at 31, 69th Report

(Jul. 28, 2020).

Finally, the Department is close to finalizing a draft memorandum containing

a Chief’s directive setting forth the Department’s practice regarding placing

involved officers on administrative leave and returning them to duty following

major force incidents. The Department anticipates sending the draft memorandum

to the Monitoring Team in the next month.

III. STOP DATA AND PAS/RISK MANAGEMENT—TASKS 34 AND 41

The Monitoring Team last evaluated Task 34 in July 2020 and found the

Department in partial compliance. See Dkt. 1387 at 22, 69th Report. The Monitoring

Team has deferred its compliance assessment of Task 41 due to the ongoing

reconstruction of the Vision database. See 69th-72nd Reports (Jul. 28, 2020-Feb. 5,

2021).

The Department welcomed Dr. Leigh Grossman in October as its new data

manager. Dr. Grossman’s position is housed within the Department’s Office of

Inspector General (OIG). With Dr. Grossman’s addition, the Department has now

completed all 50 Stanford recommendations.


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As Dr. Grossman engages with the data, and as sergeants and supervisors

become more familiar with the dashboards, the Department will work with Dr.

Grossman to define her role so that her contributions have the greatest impact on

the Department’s priorities. To meaningfully utilize the data we now have access to

via Vision and the related dashboards, the Department must identify trends, ensure

that sergeants have access to accurate data and regularly review the data and use it

to change officer behavior where appropriate, and refine and evolve risk

management meetings.

To that end, the Department acknowledges that it must update its Personnel

Assessment System (PAS) policy (Department General Order D-17, rev. 2013);

ensure that as its technology has advanced that its capture-and-display of Task 40

data has similarly advanced; and reengineer the Risk Management Meeting

process—including developing a manual to assist Departmental consumers and

users of the data to find, use, and manipulate data consistently. See Dkt. 1416 at

17-18, 71st Report (Dec. 10, 2020); Dkt. 1395 at 14, 70th Report (Sept. 21, 2020).

This reengineering has already begun. For example, during the last citywide risk

management meeting in December 2020, participants questioned the significance

and clarity of some of the data and its presentation. See Dkt. 1420 at 24, 72nd

Report.

IV. INTERNAL AFFAIRS TIMELINES—TASK 2

The Monitoring Team evaluated this requirement under Task 2 in December

2020 and found the Department out of compliance. Dkt. 1416 at 4, 71st Report.

The NSA requires that the Department “develop policies regarding timeliness

standards for the completion of Internal Affairs investigations, administrative

findings, and recommended discipline.” See id. at 2 (quoting Negotiated Settlement

Agreement at 7, section III.B.). “Compliance with these timeliness standards shall

be regularly monitored by IAD command and the Department’s command staff.” Id.

Accordingly, Department policy requires completion of internal investigations


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within 180 days of the IAD Intake Date. See, e.g., Department General Order M-03,

Complaints Against Department Personnel and Procedures (rev. Dec. 22, 2017) at

12; Internal Affairs Policy & Procedure Manual (draft) (“[i]nvestigations shall be

completed, reviewed, and approved by the IAD commander within 180 days of the

IAD Intake Date”) (forthcoming). Compliance with this task is based on the

Department’s achievement of a completion rate of 85% of Class I and 85% of Class

II investigations within the 180-day timeline. The Department appreciates and

wholeheartedly agrees that “[f]airness to complainants, members/employees and the

public requires that internal investigations be completed in a timely fashion.” Dkt.

1416 at 2, 71st Report (quoting Negotiated Settlement Agreement at 7, section

III.B.).

The Department was previously in compliance on this task but fell below the

85% completion rate in 2018. The Department saw improvement through early

2020, completing 69% of Class I cases and 84% of Class II cases within the 180-day

timeline. Dkt. 1387 at 3, 69th Report. While the Department believed it had

maintained this improvement between April and June 2020, the Monitoring Team

reported that the Department completed only 67% of Class I cases and 75% of Class

II cases within the 180-day timeline. Dkt. 1416 at 3, 71st Report.

IAD policy, its case tracking system and reports (first built in PRIME and

now in Vision), and its internal compliance monitoring protocols are all built around

this definition of the 180 date. The Monitoring Team, however, measures the

percentage of cases approved within 180 days of the complaint date rather than the

intake date.10 The complaint receipt date is the date on which the Department first

becomes aware of a complaint while the intake date is the date on which the

10 Although the Monitoring Team agrees that Task 2 requires that internal investigations “be completed in accordance with the timeliness standards developed by OPD,” the Monitoring Team assesses timeliness under this task calculating “the number of days between the complaint date and the approval date for each case.” Dkt. 1416 at 3, 71st Report.


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Internal Affairs Division receives the complaint and logs it into its tracking system.

These two dates are often but not always the same. For example, complaints made

on evenings, weekends, and holidays which are received and entered by Internal

Affairs on the following business day may reasonably result in a one- to three-day

delay between the complaint date and the intake date.

To be fair, the Monitoring Team’s assessment in its Seventy-First Report

included cases where there were “several delays that did not result from either

weekends or holidays.” Dkt 1416 at 3. Going forward, IAD will review delays

between the complaint date and intake date to minimize delays and eliminate

unreasonable or unexplained delays. The Department understands that IAD cannot

rely on unreasonable or unexplained intake delays to bring otherwise untimely

cases into compliance with the 180-day timeline.

The Department continues its deliberate progress back toward the 85%

timeliness rate. Based on IAD’s current review of the data from the last quarter of

2020, IAD projects that 82% of Class I investigations and no less than 84% of Class

II investigations meet the 180 date.11

A. Recent Complaint Trends

The Department’s biweekly compliance update for January 10-23, 2021,

revealed an increase in misconduct complaints in 2021—59 complaints thus far this

year, compared to 31 during the same time period last year.

11 As previously described, the number of days is calculated using the intake date and the approval date. Arriving at 82% for Class I investigations assumes inclusion of three cases with the following delays between the complaint date and intake date: (1) 20-0432-complaint date April 15 (Tuesday), intake date April 16 (Wednesday); (2) 20-0538-complaint date May 9 (Saturday), intake date May 11 (Monday); and (3) 20-0632-complaint date May 22 (Friday prior to holiday weekend), intake date May 27 (Wednesday), but only allowing for the delay through May 26 (Tuesday), the first business day following the holiday weekend. If these three cases are not included, then the Class I completion rate falls to 74%. The 84% completion rate for Class II investigations does not assume inclusion of any cases with intake delays of any kind. Further investigation of any intake delays and inclusion of additional cases may increase the rates of completion for Class II investigations.


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Table 3, Excerpt from 280th Biweekly Report for Jan. 10-23, 2021

IAD reviewed the misconduct allegations behind these numbers to better

understand this increase, see trends, and identify any factors that may have

contributed to this increase. The table below reflects a breakdown of the categories

of misconduct allegations.

Table 4

The most significant drivers of the increase in complaints appear to be

Performance of Duty (POD)-General and Demeanor allegations. A further review of

POD-General complaints reflects a variety of allegations against officers and

12 This table captures the number of allegations in the specified categories in 2021 and the number of allegations in those same categories during the same period in 2020. The number of allegations is distinct from and should not be confused with the number of complaints. A single complaint may include multiple allegations. The 2021 allegations represented in this table all originated outside of the Department. While there have been five internal complaints thus far in 2021, none of the allegations in the internal complaints involved the categories with notable increases (POD-General, Demeanor, or Unlawful Search/Detention/Arrest).

MISCONDUCT COMPLAINT

ALLEGATION TYPE12

2020

2021

Change in 2021 (Raw

Number)

Change in

2021 (%)

Performance of Duty (POD)-General

15 27 +12 80%

Demeanor 6 10 +4 67%

Unlawful Search/Detention/ Arrest

8 11 +3 37%

Harassment/Discrimination 7 5 -2 28%

Excessive Force 7 2 -5 71%


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dispatchers. The only reoccurring allegations appeared to be that officers did not do

what a complainant requested during a preliminary investigation, for example, did

not conduct an inadequate investigation or did not arrest a person that a

complainant thought should be arrested. For Demeanor complaints, four of the ten

2021 complaints were lodged against non-sworn personnel (dispatchers and a Police

Services Technician), while six involved sworn officers. There was also a smaller

increase in allegations of unlawful search, detention, or arrest.

The Department has since observed some equalization in the ratio of

misconduct complaints between 2021 and the same period in 2020. As of February

6, 2021, the Department counted 88 misconduct complaints, compared to 68

received during the same period in 2020. While this still represents a 30% overall

increase in 2021 misconduct complaints, it is a significant reduction from the 90%

increase the Department saw in mid-January.

The Department will continue to monitor the number of complaints,

particularly those with allegations in the identified categories, and will also track

whether there is any complementary increase in sustained allegations in any of

these categories. On a positive note, thus far in 2021 there are fewer discrimination

and force complaints.

V. FORCE INVESTIGATION AND REPORTING—TASKS 24 AND 25

The Monitoring Team’s current assessment is that the Department is in

partial compliance with Tasks 24 and 25. Dkt. 1420 at 10 & 14, 72nd Report. The

Monitoring Team found the Department in compliance with these tasks as recently

as 2018. See Dkt. 1284 at 8, 60th Report (May 23, 2019). But in late 2018, the

Department’s OIG and the Monitoring Team each identified inconsistencies in the

Department’s use of force reporting.

Since that time, and subsequent to Departmental changes in force reporting

policy and additional training, the Monitoring Team “continues to see overall

improvement” as well as “improvement in the reporting of uses of force,”


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specifically, and has noted a “decrease in the total number of concerns.” Dkt. 1420

at 3 & 7, 72nd Report; Dkt. 1387 at 5, 69th Report (“an improvement from prior

reviews”).

In its most recent review of these tasks, the Monitoring Team counted a

single failure to report a use of force (which was caught and remedied appropriately

by a sergeant), and one delayed report that failed to meet the “as soon as

practicable” reporting standard. See Dkt. 1420 at 9 & 12, 72nd Report (based on

inspection of 109 Level 3 and Level 4 (lower-level) use of force reports prepared Oct.

2019-Feb. 2020). Both officer errors were identified by supervising sergeants and

handled appropriately. See id. Notably, the Monitoring Team did not identify any

failures or delays in reporting in its prior review. Dkt. 1387 at 5, 69th Report

(inspected 51 Level 3 and Level 4 use of force reports prepared Aug.-Sept. 2019).

The Monitoring Team found no instances either in its most recent review or prior

review where an officer failed to report pointing a firearm at a person. Dkt. 1420 at

6, 72nd Report; Dkt. 1387 at 5, 69th Report.

The Department recognizes that the 109 Level 3 and Level 4 use of force

incidents most recently inspected by the Monitoring Team again reflect that force is

used at a much higher rate against African American (68%) and Latino (22%)

individuals. Dkt. 1420 at 3, 72nd Report. This is not completely unexpected given

that African American and Latino stop rates are similarly disproportionate.

Working to understand stop and use of force disparities and reduce unwarranted

disparities remains an ongoing City priority. Of the 290 uses of force reviewed, the

Monitoring Team found two instances where it “believe[d] the use of, or level of,

force may not have been appropriate.” Id. In both of those instances, the person on

whom force was used made a complaint and a full internal investigation into those

uses of force was conducted or is underway. Id.

Notably, in its two most recent reports the Monitoring Team did not identify

any Level 3 or Level 4 uses of force where officers failed to attempt verbal


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communications and de-escalation where appropriate, prior to using force. Id. at 3,

12. Nor did the Monitoring Team identify any instances where officers could have

made additional efforts to explain to persons being detained why the detention was

occurring prior to using force. Id. at 13. While there have continued to be instances

where officers failed to announce or identify themselves as police officers when

appropriate and there was time to do so, the Monitoring Team observed fewer

instances in the cases it reviewed between October 2019 and February 2020. Id.

Unfortunately, the Monitoring Team did not observe these same positive

trends in officer body-worn camera activation. In the 109 use of force reports it

recently reviewed, the Monitoring Team noted 23 late activations. Id. at 6. During

its last review, the Monitoring Team’s observed that in five of 51 use of force

incidents one or more officers had a late activation.13 Id. As the Monitoring Team

noted, however, it is more concerning that “supervisors and those who review

supervisor reports have not been consistently identifying and addressing this

concern.” Id. at 6. Of the 23 late activations, only 10 were identified and properly

addressed by a supervisor. Id.

The Department remains focused on these deficiencies and recognizes that it

must make additional efforts to achieve consistent compliance with body-worn

camera policy, including supervisor review and response. The Monitoring Team has

credited the Department for its follow-up investigation into each identified late

activation. Id. But while the Department “has taken numerous steps to address the

proper reporting of use of force and the concerns that have been identified during

[the Monitoring Team’s] reviews,” its work must continue. Id. at 7.

///

13 We are not focusing on the percentage comparisons set forth in the Seventy-Second as the 21% calculation (of the recently reviewed 109 cases) appears to assume a 1-to-1 ratio of use of force reports and late activations, while the 10% calculation (of the previously reviewed 51 use of force reports) factors in that the late activations and use of force investigations do not have a 1-to-1 ratio (“in five (10%) of the 51 UOF investigations [ ], one or more officers had a late activation”). Id. at 5-6. Nonetheless, whether measured in raw numbers or percentages, the Department concedes that timely camera activations deteriorated during the reporting period.


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A. Type 32 Use of Force Reporting Update

In early 2020, the Department established new policy intended to improve

accuracy and consistency of reporting force used to overcome resistance of a person

during an arrest or detention, or defending against combative action, now classified

as “Type 32” uses of force. Id. at 4 & 5; Dkt.1347 at 7, 65th Report (Dec. 19, 2019).

Unfortunately, in February 2020 the Department experienced a massive delay in

calls for service when it implemented the new Type 32 reporting policy. As a result,

and with Monitoring Team concurrence, the Department temporarily modified the

reporting requirement and is currently capturing Type 32 uses of force using

alternative methods while it develops a more permanent solution. Dkt. 1420 at 5,

72nd Report. The Department has been actively working on a solution that will

allow the Department to accurately, consistently, and efficiently report and review

these lowest level uses of force. To that end, the Department—with input from the

Monitoring Team—completed a workload study on sergeants to help identify

realistic, feasible options for reporting-and-reviewing solutions, and to assist

analyzing of the benefits and detriments of such potential options. The Department

anticipates sharing a proposed solution with the Monitoring Team within the next

month.

B. OIG Review of the Department’s Oversight of its Canine Program

On February 2, 2021, the Department’s OIG published a review of the

oversight of the Department’s Canine Program. OIG 2020 Year-End Report,

https://www.oaklandca.gov/resources/oakland-police-department-office-of-the-

inspector-general-oig (last visited Feb. 4, 2021). The Canine Program utilizes

trained canines to search for, locate, and assist in apprehension of criminal

suspects.

The purpose of OIG’s review was to determine whether the Department’s

oversight of its Canine Program was effective during the period between January 1,

2018 and March 31, 2020. Id. at 3. The Canine Program audit examined the overall


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structure, oversight, and accountability of the Canine Program relative to

Department policy (Departmental General Order K-09, Department Canine

Program). Id. at 2.

The audit was initiated at the request of IAD due to concerns about oversight

of the canine program which arose during an internal investigation. OIG was also

interested in reviewing the program oversight after it found that there were more

than twice as many canine bites (seven) in 2019 than any of the preceding four

years, despite fewer canine deployments. Id. at 4. Ultimately, the audit revealed

that the most significant and glaring deficiency, from which many other identified

deficiencies stemmed, was the lack of a dedicated Canine Program Supervisor from

January 2017 to January 2020. See id. at 5.

The primary trainer for all in-house Department canine training is the

Canine Program Coordinator. During the audit period, the Canine Program did

have a Program Coordinator. The Coordinator is responsible for developing weekly

training plans that maintain the proficiency of all Canine Teams (handler and

canine). Id. at 8. The Canine Program Supervisor, however, is the manager over the

entire program and is responsible for executing and documenting all administrative

duties for the program (e.g., creating monthly statistical reports, scheduling

training for Canine Teams and Patrol/Field Supervisors, observing Canine Teams in

the field, conducting reviews for handlers whose bite ratios exceed 20% within a six-

month period). Id. at 5 & 8. In addition, the Program Supervisor should attend all

training sessions, as practical, and is responsible for conducting quarterly

meetings/training with all patrol supervisors, as necessary. Id. at 8. Consequently,

these responsibilities were not fulfilled during the audit period. Id. at 5. As a result,

the audit recognized its “most significant” recommendation is that the Department

should ensure its Canine Program Supervisor position is continuously staffed with a

dedicated sergeant to provide daily effective oversight of the Canine Program. Id. at

3 & 5.


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On January 11, 2020, prior to the OIG’s April 2020 initiation of the

audit, the Department filled the Canine Program Supervisor position and the

supervisor immediately began making improvements. See id. at 4 & 5. The

position has been continuously staffed since that time.

While the Department’s more detailed response to this audit is still pending,

the Department wanted to immediately alert the Court that the Department has

already implemented the auditor’s most significant recommendation—designating a

Canine Program Supervisor. The Department expects that future review will reflect

improved leadership and oversight.

CONCLUSION

The pandemic has had a devastating impact on Oakland residents, the

livelihood of families, and the City’s finances. Simultaneously, the City has seen a

significant increase in violent crime. The surge in violence that Oakland and major

cities across the nation began experiencing last year has followed our City into

2021. In the first month of 2021, fifteen individuals were killed—all but one with a

firearm. By comparison, in January 2020 Oakland had a single homicide. Last year,

the City made national headlines for its sustained reduction over the last decade

(and particularly in the last five years), in homicides and shootings, the impact of

the City’s Ceasefire approach involving years of consistent hard work by its Police

Department, the Department of Violence Prevention, and community members. It is

in this context that the Department continues to push forward in its commitment

not only to achieve compliance with all NSA tasks but to gain and keep the trust of

the community and achieve true sustained excellence.

The City looks forward to further discussing the foregoing issues at the

upcoming Case Management Conference.


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THE OPOA’S STATEMENT

Intervenor, Oakland Police Officers Association continues to fully engage

with all stakeholders in ongoing efforts to bring the City of Oakland and the Police

Department into full compliance with the enumerated tasks set out in the

Negotiated Settlement Agreement. Since the last Case Management Conference,

there have been multiple proposals on policy modifications made to the OPOA and

all such matters have been resolved through the meet and confer process without

delay or impasse. Further, throughout the COVID-19 pandemic, the members of the

OPOA have continued their efforts to comply with the spirit and intent of the NSA

and report for duty to protect the citizens of Oakland.

///


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Respectfully submitted,

Dated: February 12, 2021 BARBARA J. PARKER, City Attorney BRIGID S. MARTIN, Special Counsel

By: /s/ BRIGID 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


1 BARBARA J. PARKER, City Attorney, CABN 069722

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