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BARBARA J. PARKER, City Attorney, SBN 069722
MARIA BEE, Chief Assistant City Attorney, SBN 167716
RYAN G. RICHARDSON, Special Counsel, SBN 223548
DAVID A. PEREDA, Special Counsel, SBN 237982
One Frank H. Ogawa Plaza, 6th Floor
Oakland, California 94612
Telephone: (510) 238-6520
Email: DPereda@@oaklandcityattorney.org
(Doc. Id. No. 2825737)

Attorneys for CITY OF OAKLAND
JOHN L. BURRIS, SBN 69888
Law Offices of John L. Burris
Airport Corporate Centre
7677Oakport Road, Ste. 1120
Oakland, California 94621
Telephone: (510) 839-5200

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JAMES B. CHANIN, SBN 76043
Law Offices of James B. Chanin
3050 Shattuck Avenue
Berkeley, California 94705
Telephone: (510) 848-4752

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Attorneys for PLAINTIFFS

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(Additional Counsel on Next Page)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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DELPHINE ALLEN, et al.,

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Plaintiffs,

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vs.

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CITY OF OAKLAND, et al.,

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Defendants.

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No. 00-cv-04599 WHO
JOINT CASE MANAGEMENT
STATEMENT
Date: August 21, 2019
Time: 3:30 p.m.
Place: Dept. 2 – 17th Floor
450 Golden Gate Ave.
San Francisco, CA 94102
The Hon. William H. Orrick

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ROCKNE A. LUCIA, SBN 109349
Rains Lucia Stern St. Phalle & Silver
Attorneys & Counselors at Law
2300 Contra Costa Boulevard, Suite 230
Pleasant Hill, CA 94523
Telephone: 925-609-1699
Attorneys for OAKLAND POLICE OFFICERS ASSOCIATION

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TABLE OF CONTENTS

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PLAINTIFFS’ STATEMENT ........................................................................................ 1

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TASK 2 ............................................................................................................................. 1

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TASK 5 ............................................................................................................................. 3

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TASK 24 ........................................................................................................................... 5

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TASK 30 ........................................................................................................................... 10

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OTHER CONCERNS PERTAINING TO THE NSA ................................................. 13

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CONCLUSION................................................................................................................ 15

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THE CITY’S STATEMENT........................................................................................... 17

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OVERVIEW ..................................................................................................................... 17

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RACE & EQUITY WORK.............................................................................................. 18

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OIGS’ SPECIAL REPORT ........................................................................................... 20

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I. OIG’S FINDINGS ......................................................................................................... 21

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A. There Was No Unreasonable Force ...................................................................... 21

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B. There Were Policy, Training, And Supervisory Shortfalls .................................. 21

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II. THE DEPARTMENT'S RESPONSE ......................................................................... 22

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A. Key New Policies Are In Place And Others Are On The Way .............................. 23

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B. The Department Is Clearly Messaging Its Expectations,

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Retraining Its Officers, And Holding All Within Its Ranks Accountable........... 23

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C. OIG Will Track The Department’s Progress ........................................................ 25

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TASK 2—INTERNAL AFFAIRS TIMELINES .......................................................... 25

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TASK 5—INTERNAL AFFAIRS COMPLAINT PROCEDURES ........................... 26

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TASKS 24 AND 25—FORCE INVESTIGATION AND REPORTING .................... 28

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TASK 30—EXECUTIVE FORCE REVIEW BOARDS .............................................. 29

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TASK 34—STOP DATA; AND VISION ....................................................................... 30

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I. RACIAL IMPACT REPORT AND DATA INTEGRITY ............................................. 30

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II. STANFORD RECOMMENDATIONS ........................................................................ 31

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III. GENERAL ORDER R-02 ........................................................................................... 31

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IV. CRITICAL ANALYSIS OF DISPARATIES .............................................................. 32

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V. VISION (FORMERLY PRIME) ................................................................................... 32

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VI. ADDITIONAL EFFORTS .......................................................................................... 33

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TASK 45—CONSISTENCY OF DISCIPLINE POLICY ........................................... 33

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CONCLUSION................................................................................................................ 34

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THE OPOA’S STATEMENT ......................................................................................... 38

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PLAINTIFFS’ STATEMENT
After years of progress, OPD is backsliding away from full compliance. It is

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clear that OPD has regressed on multiple fronts, and across several tasks, in the past

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year. As of the Monitor’s 59th Report dated January 17, 2019, there were only three

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Negotiated Settlement Agreement (NSA) tasks that were not in compliance or in

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partial compliance, including Task 5 (Internal Affairs Division (IAD) Complaint

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Procedures – in partial compliance), Task 34 (Stop Data – in partial compliance), and

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Task 45 (Consistency of Discipline – in partial compliance). OPD has made no

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meaningful progress in any of the above-listed Tasks. Worse yet, the Department is

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no longer in full compliance with Task 2 (Timeliness Standards and Compliance with

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IAD Investigations), Task 24 (Use of Force Reporting Policy), Task 25 (Use of Force

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Investigations and Report Responsibility), and Task 30 (Executive Force Review

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Board—out of compliance). This represents a more than a two-fold increase in tasks in

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partial-compliance or not-in-compliance since the start of this year.

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Plaintiffs’ will outline their concerns regarding specific NSA tasks, below:

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Task 2 (Timeliness Standards and Compliance with IAD Investigations)

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

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

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However, the most recent IMT report determined that “IAD is having difficulty

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meeting its required timeliness standards”, and OPD was found no longer in

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compliance with this task. (62nd IMT Report, p. 2)

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Specifically, OPD policy requires that “at least 85% of Class I misconduct

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investigations and at least 85% of Class II misconduct investigations must be

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completed within 180 days to be considered timely”. Per DGO M-03, Class I offenses

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“are the most serious allegations of misconduct and, if sustained, shall result in

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disciplinary action up to and including dismissal and may serve as the basis for

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criminal prosecution.” Class II offenses include “all minor misconduct offenses.” (62nd

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IMT Report, p. 3)

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The IMT reviewed 14 Class I cases during the period covered by the most recent

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(62nd) IMT report, and determined that only four of these cases were completed

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within the required timeline (one of which, it should be noted, was completed on the

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180th – very last – day). This represents a 29% success rate, which is 56% short of the

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compliance threshold.

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Similarly, the 30 Class II cases reviewed by the IMT, only seven were in
compliance with established timelines. This represents a 23% compliance rate with
IAD policy, which is 62% short of the compliance threshold.
Plaintiffs’ are baffled by the very low timeliness rates at a time when the

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number of serious complaints has dropped substantially. Per the most recent (241st)

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biweekly report received from the Office of the Chief of Police, there have been 41

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fewer complaints to date in 2019 than in 2018. It therefore appears that IAD is

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completing only a fraction of their investigations within the 180 day time limit at a

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time when there are fewer total complaints. The OPD has not provided a reasonable

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explanation for these abysmal IA completion rates.

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Finally, OPD Departmental General Order M-03, Complaints Against

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Department Personnel and Procedures, requires that “in cases with a sustained

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finding, the discipline recommendation process shall be completed within 30 calendar

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days of the sustained finding.” The IMT reviewed all cases that involved sustained

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findings during the reporting period, and determined that one case was not in

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compliance with this required discipline timelines.

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On August 12, 2019, Plaintiffs’ counsel received a Memorandum from Lt.

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Sansome to the Chief of Police, as well as an e-mail from Chief Kirkpatrick stating

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that “we do not have a backlog anymore in IA.”

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The Memorandum from Lt. Sansome says:
“In an effort to eliminate the backlog, and through the use of overtime, thirteen
sergeants and lieutenant from both inside and outside IAD were tasked with
conducting the reviews. These reviewers were in addition to the regularly
assigned DLI Coordinators and were trained by me to conduct the reviews.
Most had prior IAD experience.”
Plaintiffs’ attorneys look forward to the Monitor/Compliance Director’s review of

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this effort

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to see if it was done properly or not in order to ensure that these reviews were

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comprehensive and in compliance with the guidelines for Task 2, as well as the other

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provisions of the Negotiated Settlement Agreement. It is also hoped that the City will

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address why this backlog was created in light of the City’s agreement to abide by Task

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2 and what permanent steps will be taken going forward to comply with Task 2 in the

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future.

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Task 5 (Complaint Procedures for IAD)

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

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Procedures for the Internal Affairs Division, since the 21st Reporting Period (May

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2015). On March 23, 2016, the Court issued an Order indicating that irregularities

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and potential violations of the NSA occurred in IAD investigation 15-0771. The Order

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noted that the investigation raised issues of accountability and sustainability of

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compliance. During the previous reporting period, covered by the 61st IMT Report, the

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Monitor determined that OPD was “not in compliance” with Task 5. (61st IMT Report,

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p. 16). The Department was, however, in compliance with some sub-paragraphs of

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Task 5, including subtasks 5.1 to 5.5, and subtasks 5.6 to 5.12.

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The IMT’s concerns centered on Task 5.18 (which requires that OPD resolve

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each allegation in a complaint investigation using the preponderance of the evidence

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standard) and Task 5.19 (which requires that each allegation of a complaint is

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identified and resolved with one of the following dispositions: unfounded; sustained;

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exonerated; not sustained; or administrative closure). The IMT reviewed 19 such

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cases, and disagreed with the findings in two of the cases. One case involved the

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mishandling of evidence where the “investigator’s case substantiated untruthfulness

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on the part of a subject officer – and the officer was deemed not credible – but the

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investigator arrived at a finding of not sustained. After we reviewed this case with

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OPD, the Department changed the finding.” (61st IMT Report, p. 7)

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The second case highlighted by the IMT centered on an allegation that an officer
stopped and searched a citizen without cause, and pointed his firearm at the citizen

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during said encounter. OPD determined that the “stop and detention were exonerated,

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but [the IMT believes] there was no justification for the stop and findings of sustained

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are appropriate. Additionally, the pointing of a firearm was unfounded, but the more

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appropriate finding is not sustained. The investigator based this latter finding on the

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complainant’s cell phone video, but the video did not capture the entirety of the

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encounter and the officer did not have his PDRD as required by policy.” (61st IMT

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Report, p. 7).

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It seems obvious that the Internal Affairs process would have a better chance of

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compliance if the OPD and the City of Oakland had a more harmonious relationship

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with the new Oakland Police Commission. This Commission will have the final say on

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nearly all complaints against Oakland Police officers. As such, its smooth operation

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could greatly help the OPD’s quest to obtain compliance on Task 5.

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Unfortunately, the relations between the City Administrator’s Office, the City

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Attorney’s Office, and the Police Commission have not been good. The Administrative

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Analyst for the Police Commission usually fails to attend Commission meetings and is

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supervised by the City Administrator’s Office, not by the Commission Chairperson.

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The City Attorney’s Office, who has a fiduciary obligation to represent the Police

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Commission, has directed the interim CPRA Director to withhold the responses to the

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Commission’s issued subpoenas from the Commission.

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There are still a significant number of Commission employees’ positions that

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have not been filled. Only four Commissioners (out of a total of nine commissioners

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and alternates) have received the required training to allow them to be a member of a

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Discipline Committee which means that the unavailability of just two Discipline

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Committee members would cause the Police Commission to be unable to fulfill one of

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its most important functions, and potentially cause the City to violate the one year

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deadline imposed by Government Code 3304 to impose discipline on police officers.

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This is just a brief summary of the problems between the Police Commission

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and the City Bureaucracy. Plaintiffs’ attorneys note the continued inability of the City

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of Oakland/OPD to comply with Task 5 which is one of the most important tasks of the

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NSA. It is very likely that the Police Commission, instead of being perceived as a

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problem, could actually be brought in to find solutions to the chronic inability of the

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OPD to comply with Task 5.

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Tasks 24 (Use of Force Reporting Policy) & 25 (Use of Force

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Investigations and Report Responsibility)

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

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25 (Use of Force Investigations and Report Responsibility) of the NSA since 2015. In

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November 2018, this Court reactivated these Tasks as a result of Plaintiffs’ and the

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Monitoring Team’s concerns about Use of Force Reporting procedures at OPD. In the

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previous (61st) IMT Report, the Monitor found that OPD was only in partial

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compliance with these tasks, and expressed “serious concerns with the Department’s

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handling and investigation of recent uses of force.” (61st IMT Report, p. 16).

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Plaintiffs’ have elaborated their concerns in this regard at great length
previously. To summarize: the City of Oakland had touted decreasing use of force

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levels by members of the Oakland Police Department as an example of cultural

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changes within the Department. According to the 56th IMT report, uses of force data

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between 2012 and 2017 dropped 75%, and as of October 6, 2018, reported force data

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indicated an additional decrease of 23%. However, beginning in October 2018, OPD

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Use of Force rates spiked upward. The Oakland Police Department’s own Office of

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Inspector General (OIG) previously attributed these significant increases to a

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command level decision to direct additional lineup training on pointing of a firearm.

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Plaintiffs’ attorneys therefore reported to this Court that Use of Force incidents
had, apparently, been systematically underreported for years, in a manner

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incongruent with the Department’s own written policies, and demanded that a

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comprehensive investigation must be undertaken to identify the root causes of this

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problem. (November 16, 2018 Case Management Statement, Dkt. No. 1221).

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More recent IMT Reports suggested there were other recent Uses of Force that

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were not reported besides the pointing of a firearm at a person. For example, the 57th

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IMT report highlighted a number of cases where “it is unclear whether force was used

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and/or there is no actual video of the arrest” (page 2, 57th Report). On November 14,

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2018, the IMT provided follow-up information regarding the 57th IMT Report to

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Plaintiffs’ attorneys, the Chief of Police, and the City of Oakland which indicated that

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they reviewed over one hundred (100) police reports. The IMT subsequently requested

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body camera footage for 38 selected videos containing possible charges (such as assault

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on an officer, obstructing, resisting arrest, etc.) that had no accompanying use of force

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report. After reviewing the videos, the IMT determined that in 14 cases that were

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reviewed, officers used force without completing a use of force report. Six of those

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incidents involved the use/pointing of a service weapon, and eight others contained

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force other than the pointing of a firearm. This means that more than half of the

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unreported Use of Force incidents that the IMT recently discovered could not be

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attributable in any way to confusion about the wording regarding the low

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ready/retention position in General Order K-4.

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Last month, OIG released a damning report that indicated officers’

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systematically under-reported use of force incidents. 1 Specifically, uses of force

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involving weaponless defense techniques and pointing of a firearm at a subject were

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not always being reported in accordance with Department policy and procedures. (OIG

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Report, p.2).
The OIG Audit identified five incidents of unreported weaponless defense

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techniques (i.e., hand/palm/elbow strikes; kicks; take-downs; leg sweeps; arm-bar

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takedown; and control holds such as escort via elbow, bent wrist, twist lock, and arm-

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bar hammerlock). One incident involved a takedown of a handcuffed subject, which

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was considered a Level 3 use of force but, per policy, should have been investigated as

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a Level 2 use of force, requiring review by the Force Review Board. Further, no use of

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force was even reported by the subject officer. The OIG audit also found four other

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incidents where Level 3 Uses of Force were unreported.

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Plaintiffs’ are especially alarmed by OIG’s determination that “the percentage of

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

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of African American arrestees.” (p. 2, OIG Audit) Of the five above-described incidents

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where reportable uses of force were not reported, four of the subjects of force (80%)

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were African American, and the other (20%) was Hispanic.
Similarly, there were 19 incidents where OPD Officers did not report pointing

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their firearms at a subject, even though OPD policy mandates that this is a reportable

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Use of Force. 17 of these 19 incidents (89%) involved an African-American subject,

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while the other two (11%) involved Hispanic subjects. (OIG Report, p. 15).
Put another way: In every instance where the OIG Audit determined that

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officers did not properly report Use of Force, the subject of the unreported

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force was either Hispanic or African American. This is outrageous and

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unacceptable. Chief Kirkpatrick, in her response to the OIG report, claims that OPD

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“officers’ patience and professionalism in their community interactions reflect the

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cultural change within the Department.” (Kirkpatrick Response, p. 2). It is

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unfathomable that anybody, especially the Chief, could describe the OIG’s findings in

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this regard as evidence of positive “cultural change” or progress.

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The OIG Report also determined that four OPD squads had “more than one

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incident involving an unreported use of force” – including both firearm-pointing and

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weaponless defense technique incidents – in 2018. (OIG Report, p. 13) Two of the

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four squads were patrol squads, and the other two were specialized units that “focus

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on crime reduction…and apprehension of high-risk suspects.” Further, data obtained

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from the Personnel Assessment System (PAS) Unit indicates that “12 of the 43 officers

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and sergeants assigned to these four squads were under supervisory monitoring at

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some point during 2017-2018.” (OIG Report, pp. 13-14)

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One of the Plaintiffs’ attorneys has attended multiple Risk Management

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Meetings with OPD command staff where officers and sergeants undergoing

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supervisory monitoring are discussed. In some instances, partnered officers who have

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outlying use of force statistics have been split up, to some effect. The same stop data

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and use of force data that is reported and discussed in these meetings has apparently

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resulted in supervisory monitoring for 12 out of these 43 officers in the subject squads.

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Given the extreme racial discrepancies among subjects of unreported use of force

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described above and in the OIG report, Plaintiffs’ attorneys were going to ask the court

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that it order OPD commanders to again review this data, and either break up the four

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squads listed in the OIG report or provide a compelling reason for not doing so.

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However, Plaintiffs’ attorneys have recently learned that the subject squads

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have indeed been broken up. This is obviously a positive development. However, the

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issue remains as to when and why they were broken up. Were they broken up only

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after the publication of the OIG report? Were they broken up only after the yearly

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rotation of almost all personnel at the OPD? If so, this could very well mean that the

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RMM process failed to realize the gravity of the situation, supervisory monitoring

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became an end in itself, and decisive action was not taken until the subject behavior

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became so well publicized that commanders had no choice to take action. Were these

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squads only broken up after one or more of them were involved in a major incident

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that could have been avoided if they were broken up earlier? If so, this indicates a

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failure of the RMM process in that outliers are identified in a timely and appropriate

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way, but nothing is done about it until the subject squad is involved in an unfortunate

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incident that could have been avoided if they had been broken up in a timely way after

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their problems were identified.

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While the Maricopa County injunction requires supervisory monitoring be

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videotaped and reviewed by all the parties, OPD’s supervisory monitoring is not

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videotaped and, as far as Plaintiffs’ Attorneys can recall, has never been monitored by

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the IMT. We simply have no way of knowing if supervisory monitoring in Oakland is

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effective , whether supervisors are just “going through the motions’, or something in

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between. Plaintiffs’ attorneys strongly urge the Court and the Monitor/Compliance

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Director, at a minimum, to observe some of the supervisory monitoring, and report on

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whether it is effective or not. Plaintiffs’ attorneys hope this will resolve the issue of

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whether the supervisory monitoring accomplishing its goal. However, Plaintiffs’

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attorneys cannot rule out asking that most, if not all, supervisory monitoring be

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videotaped in the future.

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The Department must also hold the supervisors who oversee these squads

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responsible for their leadership shortcomings. Per the OIG reports findings regarding

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the four squads with more than one incident involving an unreported use of force, it

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does not appear that this specific failure was distributed evenly across the

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Department. Instead, the four squads described are evidently outliers within the

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Department. Supervisors, up through and including the command staff at OPD, must

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be held accountable.

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Plaintiffs’ also note that the Department has repeatedly emphasized that all of

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the unreported uses of force described within the OIG report were nevertheless within

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policy. Without viewing all of the underlying data and video pertaining to these stops,

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Plaintiffs’ cannot independently reach the same conclusion. However, even if this is

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the case, the very fact that certain squads have multiple incidents involving

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unreported use of force, and that all of the subjects of unreported use of force are

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African American or Latino, suggests that officers may be using the maximum use of

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force allowed per Department policy on minority subjects, while subjecting non-

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minority populations to less force, or no force at all, in similar circumstances. If this is

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true, the subject OPD behavior is unconstitutional, whether or not it is in policy. OPD

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management must examine this issue immediately to make the relevant

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determination on these issues and take decisive action as warranted.

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Finally, the Department must also review and explain the basis for the stops

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that led to unreported uses of force. Plaintiffs are curious to know whether or not such

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stops were “intelligence-led”, and whether intelligence-led stops are more or less likely

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to result in unreported uses of force.

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Task 30

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Task 30 (Executive Force Review Board) was found to no longer be in

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compliance in March 2019, after being in compliance since 2014.

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Task 30, which covers Executive Force Review Boards (EFRBs), requires that

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three top command-level staff conduct “thorough, detailed reviews of all Level 1 uses

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of force, in-custody deaths, and vehicle pursuit-related deaths and serious injuries.”

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As with Task 2, OPD achieved compliance with task many years ago (during the April

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1 to June 30, 2014 reporting period). And as with this Task 2, the Department has

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fallen out of compliance with this task in 2019.
The Monitor reports that it determined the OPD was not in compliance with

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Task 30 “based on the last EFRB conducted”, but does not elaborate beyond that. This

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EFRB pertains to the shooting death of Joshua Pawlik. 2 An executive Force Review

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Board was convened to review this officer-involved shooting incident in November

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2018.
Per the EFRB report that emanated from this hearing, the EFRB “agreed with

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

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investigators that all the uses of force during this incident (four Level 1 uses of force

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and one Level 2 use of force) were reasonable under law and in compliance with

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policy.” (EFRB Report, page 4.)
An addendum to this report was subsequently issued by Chief Kirkpatrick in

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February 2019. In this document, the Chief reiterated that “after a careful review and

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analysis of all of the evidence and the application of the Fourth Amendment’s objective

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reasonableness test, I agree with the recommendation of IAD and the unanimous

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decision of the EFRB that the force used was within law and policy.” (Chief’s

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Addendum – UOF No: 18F-0067 -- Page 3).
Compliance Director Warshaw issued a further addendum to the EFRB report

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one week later, on February 19, 2019. Chief Warshaw noted that “IAD and CID are

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required… by Department policy [and] by the Negotiated Settlement Agreement

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(NSA)” to resolve discrepancies between officers assertions about the scene and the

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events culminating in the officer-involved shooting and contrary video evidence and

24

testimony. He determined, however, that “investigators – both in their questioning

25

and analysis – failed to address the inconsistencies between officers’ statements and

26
27
28

2

Note: John Burris has not participated in any discussions with the Police Commission, the OPD,
or the Monitor where confidential matters pertaining to the Pawlik case have been discussed.

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1

the video evidence.” (Compliance Director Robert Warshaw’s Addendum to OPD EFRB

2

Report – page 1).

3

Chief Warshaw also determined that “EFRB members did not address the

4

apparent discrepancies between the statements and the video. With respect to the

5

uses of force, the EFRB members appeared to accept IAD’s recommendations at face

6

value. The board was duty-bound to resolve those discrepancies if IAD did not.

7

However, the board failed to do so.” He concluded that Chief Kirkpatrick’s assessment

8

of the totality of the circumstances was “disappointing and myopic”, and rejected Chief

9

Kirkpatrick’s principal conclusions in this matter. (Compliance Director Robert

10
11

Warshaw’s Addendum to OPD EFRB Report – page 2).
On June 13, 2019, the Oakland Police Commission, a civilian-led body that is

12

tasked with overseeing the Oakland Police Department, established a Discipline

13

Committee to review the circumstances of the officer-involved shooting and proposed

14

discipline related to the Pawlik matter. This Committee consisted of Commission

15

Chair Regina Jackson, Commissioner Jose Dorado, and Commissioner Edwin Prather.

16

It should be noted that two of these three commissioners were appointed directly by

17

Mayor Schaaf and are not community appointees.

18

The committee concluded that PDRD footage from the scene of the officer-

19

involved shooting “confirms that at no time did Mr. Pawlik raise the handgun towards

20

the officers or otherwise in a threatening manner towards the officers.” (Oakland

21

Police Commission Report, p. 5) Further, the Committee “does not find persuasive

22

Officer testimony that Mr. Pawlik lifted, moved, or pointed the handgun in a

23

threatening manner towards Officers.” (Oakland Police Commission Report, p. 5)

24

Based on these conclusions, the Committee sustained MOR 370.27 – 1f Use of Physical

25

Force violations against four officers and one sergeant, and concluded that termination

26

was the appropriate discipline for each of these officers.

27
28
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1

This represents the first time that both the Compliance Director and the Police

2

Commission overruled any OPD Chief on a discipline matter. Indeed, the Oakland

3

Police Commission is a wholly independent body, separate from the IMT. That both

4

the IMT and the Police Commsiision arrived at fundamentally similar conclusions, in

5

stark contrast to those of the EFRB and Chief Kirkpatrick, illustrate why OPD is no

6

longer in compliance with Task 30 of the NSA.

7
8

Other Concerns Pertaining to the NSA

9

Plaintiffs’ have concerns beyond just those outlined above. Most prominently,

10

the above-referenced OIG Report determined that OPD officers were not complying

11

with long-standing PDRD policies. OIG reviewed 47 incidents that were likely to

12

involve force, and in which the arrests were likely to have involved use of force. Of

13

these 47 incidents reviewed, 18 incidents (involving 31 officers) involved “officers not

14

complying with PDRD policy requirements.” (OIG Report, p. 2). Similarly, in the 17

15

incidents where OIG determined that force was underreported, seven “involved

16

officers not complying with PDRD policy requirements.” (OIG Report, p. 16).

17

This once again raises issues of supervisory control within OPD. It also begs

18

the question: is it just a coincidence that incidents where force was underreported

19

were also incidents where PDRD policy was not followed? The alternative, more

20

sinister, possibility is that such policy violations are correlated because officers are

21

intentionally violating Departmental PDRD policy prior to using unreported force on

22

minority subjects. Without casting aspersions on these specific officers (again,

23

Plaintiffs have not seen the underlying documentation, incident reports, etc.),

24

Plaintiffs’ note that this fact pattern is extremely troubling. It demands a timely and

25

thorough investigation.

26
27

More generally, it is simply unacceptable that OPD personnel are not using
PDRDs as prescribed by policy. Every failure to do so is detrimental to all

28
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1

stakeholders in this process, including officers, the general public, and the OPD

2

command staff. As noted in the OIG report, OPD cannot fully investigate incidents,

3

identify training and tactical issues, or review police procedures when PDRD footage is

4

unavailable. It also undermines public trust in the Department.

5

The OIG Report also found issues with reports involving “boilerplate” language.

6

OIG concluded that “these issues should have been identified by supervisors and

7

reviewing commanders through a critical, in-depth review of the incident

8

documentation.” (OIG Audit, p. 4) This, too, points to supervisory shortcomings

9

within the Department, and is unacceptable.

10

Plaintiffs’ remain concerned about the issues recently raised by the Oakland

11

Black Officers Association (OBOA) concerning disparate treatment for African

12

American recruits and trainees at OPD. Plaintiffs’ have not received a satisfactory

13

explanation for the charges outlined in their March 13, 2019 “Open Letter to City

14

Administrator. This letter claimed that the OBOA went to Chief Kirkpatrick and

15

accused the Background and Recruiting Commander of discriminating against new

16

and potential African American recruits in a variety of ways, including applying

17

biased standards such as rejecting qualified minority candidates for very minor issues

18

and considering candidates who had used illegal drugs more commonly used by

19

Caucasians, while automatically rejecting candidates who had used comparable illegal

20

drugs more common in the African American community.

21

Director Gleason subsequently reviewed the applications of rejected individuals

22

and, as a result, sent an email to Plaintiffs’ attorneys, Chief Kirkpatrick, Chief

23

Warshaw, and Mayor Schaaf reporting that “about 20 applicants were returned into

24

background processing from the first review. Some of the applicants made it to a final

25

job offer, others did not.”

26
27

After further discussions with Plaintiffs’ attorneys, Darlene Flynn (the Director
of the Department of Race and Equity for the City of Oakland) was brought in to

28
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consult with Director Gleason about other rejected applications, in order to determine

2

whether a basis existed for hiring even more of the candidates who had originally been

3

rejected. Plaintiffs’ look forward to hearing what progress that is made in this

4

endeavor.
Despite the above developments, there has been no follow up meeting of

5
6

stakeholders to see where to go from here. It is clear from the review of Director

7

Gleason that the OBOA complaints had some validity since her review resulted in

8

additional people being hired who had previously been deemed unqualified. There

9

needs to be a more broad based agreement on how to review these applications that

10

involves the Oakland Black Officers Association and other interested parties. So far,

11

no such meeting on this issue has been scheduled. Plaintiffs’ attorneys will continue

12

to press for such a meeting so there can be a bias free selection process that is

13

approved by all the relevant stakeholders.

14

Plaintiffs’ attorneys have been in contact with Captain Millington on the

15

Disparity Study. Captain Millington has informed us that an anonymous survey has

16

been sent out to all sworn members of the Department as promised. A draft report of

17

the study is expected within two or three weeks. Plaintiffs’ attorneys expect to

18

comment on the report in the next Case Management Conference Statement.
Finally, Plaintiffs’ attorneys have not received any word as to the progress of

19
20

Vision (Prime). We recall that the City Attorneys represented that there would be

21

significant developments with regard to the Vision system by the time of this Case

22

Management Conference. However, we have not been informed of any such

23

developments.

24

///

25
26
27
28
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1
2

CONCLUSION
Just one year ago, OPD was close to achieving meaningful reform and

3

concluding the NSA process. Instead of continued forward momentum, progress has

4

stalled, and the Department is moving backwards. OPD is moving ever farther from

5

achieving compliance. The number of outstanding NSA tasks has jumped from three

6

to seven in a handful of months. The Compliance Director has overruled an EFRB on

7

a death case for the first time in the history of the Negotiated Settlement Agreement,

8

and the Oakland Police Commission independently came to a similar conclusion in the

9

same matter. The OIG Report reveals that OPD has routinely under-reported uses of

10

force, and that the victims of this underreporting are exclusively African American

11

and Hispanic. OPD officers are not complying with well-established PDRD policies,

12

and there are widespread supervisory failures within the Department.

13

Plaintiffs’ attorneys find the current situation intolerable. In a similar situation

14

in 2012, we filed a motion to put the OPD in Receivership. The settlement of our

15

motion at that time resulted in the creation of a Compliance Director who had the

16

power to force widespread change on the Oakland Police Department. If the OPD is

17

unable to reverse this backwards slide away from compliance, the Compliance Director

18

should take decisive and appropriate action to bring the OPD into compliance.

19

Whether this action involves personnel actions delegated to the Compliance Director,

20

policy and rule changes, or both, the appropriate action must be taken. The OPD must

21

be brought into compliance with the NSA by any necessary lawful means.

22
23
24
25
26
27
28
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1

THE CITY’S STATEMENT

2

OVERVIEW

3

Since the last CMC, the Department has made yet further progress. A day at

4

the Department lays bare the lasting cultural transformation that is underway. It is

5

plain in how the Department sees itself, spends its resources, messages its values,

6

manages risk, trains its officers, enhances its policies, hands down discipline, and

7

takes honest looks inward.

8
9

Law enforcement’s historical inequities weigh heavily in Oakland and across
the nation. NSA or not, equity is a core value of the City. And its leaders will

10

continue to lay the infrastructure and shape the culture that drives progress towards

11

equitable, constitutional policing.

12

With all this in mind, the City addresses the following topics:

13

 The City’s Race & Equity work

14

 OIG’s Special Report

15

 Tasks 2, 5, 24, 25, 30, 34 (including VISION), and 45

16

First, Chief Kirkpatrick invited the City’s Department of Race & Equity to work

17

with the Police Department to make further gains towards equity within the OPD

18

itself and within its community interactions. The first major project was a 15-hour

19

training and problem-solving workshop that the entire Executive Team attended.

20

Second, OIG released a Special Report on force reporting. Some findings were

21

disappointing. But the report shows that the Department caught and swiftly corrected

22

a reporting problem stemming not from failing structures or corrupt culture, but from

23

policy and training ambiguities. As when the IMT looked at this issue, OIG’s findings

24

did not show that officers used unwarranted force.

25
26

Third, as to the outstanding tasks, City is well past the finish line as to some,
and as to others, the City is breaking the plane:

27
28
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 As for Task 2, the City has long been in compliance with that task.

2

Unfortunately, there was a recent case backlog, which the Department

3

has cleared. All along, though, the Department has stressed high-quality

4

investigations over checking-the-box. And the City is not aware that

5

there was any missed opportunity to impose discipline. OIG will audit

6

this issue to better understand what happened and to help prevent a

7

future backlog.

8

 As for Task 5, the City has implemented all the Court Investigator’s

9

recommendations. Further, in the last three reviews going back to the

10

IMT’s 56th Report, the IMT has agreed with the way the Department

11

assessed 94% of the cases the IMT studied.

12

 The approval rate is the same for Task 30. The IMT has praised 17 of the

13

last 18 EFRBs it reviewed. The Department’s EFRB process is not

14

deficient. The City welcomes the Court to observe any EFRB—without

15

notice.

16

 As for Task 34, the City is ahead of the curve in collecting stop data and

17

using it to reduce disparities. Also, the City is on the cusp of

18

implementing all 50 Stanford recommendations.

19

 As for Task 45, the City has implemented the Court Investigator’s

20

recommendations. And the IMT’s last two reviews were positive.

21

At bottom, the City is focused on the future, sustainability, and further

22

progress. For many years now, the City has been “in compliance” with most tasks.

23

And the City seeks guidance on the compliance metrics for those that are outstanding.

24
25

RACE & EQUITY WORK

26

In October 2016, the City launched the Department of Race & Equity. The

27

point is to “create a city where our diversity has been maintained, racial disparities

28
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1

have been eliminated and racial equity has been achieved.” See Dept. of Race &

2

Equity (https://www.oaklandca.gov/departments/race-and-equity). As Darlene

3

Flynn, the Director, explains, “[e]quality works when everyone starts from the same

4

place. Equity is fairness. It's ensuring that people have access to the same

5

opportunities or services we administer or deliver, directly or by contract.” Id. A core

6

principle is that closing equity gaps in this context must come from strategies

7

developed through a focus on race.

8
9

Police services are no different. The Department has made important strides,
sharply reducing its overall stops of African Americans and using stop data to drive

10

policies, strategies for delivering services, and risk management. To help build on

11

these efforts, Chief Kirkpatrick invited Race & Equity to work with the Department.

12

The first joint project was a 15-hour training of the Police Department’s entire

13

Executive Team. Lieutenant Frederick Shavies and Director Flynn designed and

14

delivered the training focusing on racial inequities in law enforcement, going back to

15

when police departments were first formed, the civil rights era, and up through today.

16

The training also examined historical practices within departments that placed

17

different groups of officers on uneven careers tracks. The sessions were powerful and

18

geared towards problem-solving. Please see Ex. A, Training Slides excerpts. The next

19

step is to roll out the training through the rest of the Department.

20

The Department is also consulting with Race & Equity to rework its

21

recruitment system to capture all qualified candidates. To that end, the Department

22

recently did a second review of candidates who were not selected to move forward in

23

the hiring process. As a result, over 40 candidates were reactivated in that process.

24

As these efforts to increase diversity among sworn and civilian personnel continue, the

25

Department will include the Oakland Black Officers Association, the Asian Police

26

Officers Association, and the Latino Police Officers Association. Planning for those

27

discussions is underway.

28
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1

Further, the Department is preparing a campaign to recruit more women. At

2

the same time, the Department is reassessing its hiring and training processes to

3

ensure that they do not screen out qualified women. Along the same lines, the

4

Department is reimaging its entire Academy program with an eye towards training

5

practices that advance equity outcomes and retaining qualified recruits.

6

Finally, as the City noted in its last statement, the Department hired an outside

7

firm to study whether there are any disparities in how it has investigated and

8

disciplined officers within the past five years. The selection process was

9

collaborative—including input from Mr. Burris and Race & Equity.

10

The study is moving full steam ahead. The firm is mining information from

11

records, quantitative outcome data, and officers themselves (with anonymity

12

safeguards in place). By the next CMC, the City aims to discuss at least preliminary

13

findings.

14
15
16

OFFICE OF THE INSPECTOR GENERAL’S SPECIAL REPORT
OIG continues to play a key role in helping the Department keep its practices

17

true to its values. Last month, OIG published a report focusing on the following

18

questions:

19

1. Is force being properly reported?

20

2. Are officers complying with the body-camera policy?

21

3. Is there appropriate supervision during arrests that may carry a

22

higher chance of involving force?

23

4. What is the racial breakdown of force underreporting?

24

5. Is the Department catching Manuals of Rules violations?

25
26
27

See Ex. B, Special Report (July 30, 2019); Ex. C, Command Response (July 26, 2019).
OIG examined these issues after errors in force reporting started to surface last
year. Right away, the wording of certain policies stood out as a root cause. OIG’s

28
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1

report confirms this is the case. The Department did not wait for OIG’s final report to

2

start rewriting these policies or to take other steps to bake enhanced force reporting

3

into the Department’s rules and culture.

4

I.

5

OIG’S FINDINGS
In the audit, OIG pared down a large pool of 2018 incidents—all which were

6

more likely to involve force—to 47. In the final cut, there were three groups of

7

incidents: (1) 14 from January 2018 to June 2018 in which the IMT found

8

underreporting, (2) 17 from July 2018 to November 2018, and (3) 16 from all of 2018

9

involving squads that came up in the first two groups.

10

A.

There Was No Unreasonable Force

11

To start with, OIG found no case of an officer using unreasonable force. That is

12

line with the IMT’s findings that it “found no instance where the force used was

13

unwarranted or inconsistent with policy, and as previously reported, we found several

14

instances where officers exhibited considerable patience and understanding, even

15

though they were often faced with significant verbal abuse.” Dkt. No. 1224, at 3, 58th

16

Report (Nov. 28, 2018).

17
18

Given that force was a main reason for entering into the NSA, this fact is
concrete evidence of cultural transformation.

19

B.

20

OIG found, though, that in 17 incidents, officers failed to fill out use-of-force

21

forms when they should have done so. Five of the 17 involved weaponless defense

22

techniques, such as takedowns, and 12 involved firearm pointing. Among other strong

23

measures, the Department rewrote the polices on reporting both force types. Further,

24

OIG referred all 17 incidents to Internal Affairs.

25

There Were Policy, Training, And Supervisory Shortfalls

In addition, OIG found that in 18 incidents, not every officer complied with the

26

body-camera policy. Some officers turned on their cameras later than the policy

27

requires or not at all. OIG further found that supervisors failed to catch these errors

28
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1

and eight other potential Manual of Rules violations. This conduct was thus not

2

reported to Internal Affairs. But OIG then did so, ensuring that there is

3

accountability. Lastly, in the very small sample size—too small to draw any statistical

4

conclusions—the percentage of African Americans who were arrested was lower than

5

the percentage of underreported force against African Americans.

6

II.

THE DEPARTMENT’S RESPONSE

7

In its report, OIG made 12 sound recommendations. Some prescribe the same

8

corrective actions the Department had already began taking. And the Department is

9

adopting the others.

10

Here are the recommendations:

11

NO. RECOMMENDATION

12

1

Revise General Orders K-3 (Use of Force) and K-4
(Reporting and Investigation the Use of Force)

2

Reinforce the body-camera policy

3

Provide additional training to supervisors and commanders
on how to review incidents that are more likely to involve
force

4

Equip all officers with body cameras

5

Codify Special Order 9191

6

Incorporate technology that tracks firearm unholstering

7

Reinforce procedural justice training

8

Adopt a Train-the-Trainer course

9

Enhance training to specialized units

10

Clarify command and supervisor responsibility for Special
Resource Section Teams

11

Officers working outside the normal assignments should
complete in-custody offense reports before their shift ends
and submit them to the appropriate supervisor for review

12

Next year, OIG should audit to track the Department’s
progress in these areas

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

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1

A.

Key New Policies Are In Place And Others Are On The Way

2

To begin with, the Department has worked closely for months with the Police

3

Commission to enhance key policies on force reporting. The rewrites—set forth in

4

Special Order 9196—change General Orders K-3 and K-4 to make clear the types of

5

force that must be reported, including firearm pointing. At the August 2019 site visit,

6

the IMT plans to comment on the Commission’s latest edits. See Ex. D, (Draft) Special

7

Order 9196.

8

Here are some of the key changes:

9

 Striking subjective language—such as “intentional” and “low and ready”—

10

that could lead to uncertainty about when officers must report firearm

11

pointing
 Redefining “takedowns” to mean “physical force used by a member to cause a

12

person to go to the ground not under their control”

13
14

 Clarifying when injuries trigger reporting

15

 Reclassifying certain force

16

In addition, the Chief issued Special Order 9191 requiring supervisors to review

17

body-camera footage when officers report that a person threatened an officer, resisted

18

arrest, or battered an officer.3 Those types of incidents may be more likely to involve

19

force. See Ex. E, Special Order 9191.

20

B.

21
22
23
24
25

The Department Is Clearly Messaging Its Expectations,
Retraining Its Officers, And Holding All Within Its Ranks
Accountable

Meanwhile, the Department has already retrained officers on certain fronts,
including on how to report firearm pointing. Also, the Department has strongly
messaged its reporting expectations. All this has been effective. Reported force in
July 2019, for instance, was up four-fold compared to the same time last year.

26
27
28

3

The specific laws are Cal. Penal Code §§ 69 (obstructing or resisting executive officer), 148
(resisting, delaying, or obstructing), and 243(b),(c) (battery on a peace officer).

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1

Strong messaging that reverberates up and down through the ranks is key. The

2

reporting increase is proof. Another example is probation and parole searches. Even

3

though the new policy on those searches has not yet taken hold—it is on the verge—

4

messaging and retraining has led to a sharp drop in those searches from 3,856 in 2016

5

to 1,817 in 2018.

6

The Department has also taken swift action concerning the body-camera

7

findings. The Department is proud that it adopted body-cameras early on and that it

8

uses footage to enhance policies, procedural justice, and self-oversight. The

9

Department is actively reinforcing its deep body-camera culture and practices. Among

10

other things, the Department is training supervisors to identify certain words in

11

reports—such as “guided” or “assisted to the ground”—to make sure the officers they

12

supervise are reporting force and complying with the body-camera policy; making new

13

recruits wear body-cameras from the time they start the Academy; and handing down

14

progressive discipline when officers fail to comply with the policy, recently suspending

15

a senior officer for 30 days for such a violation.

16
17
18

Further, the Department has equipped all officers and sergeants in field
operations with body cameras and assigned body cameras to all patrol lieutenants.
And the Department is issuing PDRD Activated wristbands to remind officers to

19

activate their body cameras. On his own dime, a sergeant designed the bands and

20

bought them for his squad. Once the Chief found out, she approved buying them for

21

all officers.

22
23
24
25
26
27
28
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1

The Department is also taking other steps. For example, the Department is

2

exploring technology that tracks when officers un-holster their firearms. The Chief

3

also ordered that a focus group of supervisors and commanders convene to recommend

4

how to ensure better communication and coordination between supervisors around

5

incidents in which force is used or likely to be used. The group will especially dig into

6

report review and approvals and present their findings by October 31, 2019.

7
8
9
10

Further, as set forth throughout this statement, the Department continues to
work hard to stamp out historical disparities by race.
C.

OIG Will Track The Department’s Progress

At bottom, in the OIG, the Department has an effective system of checks and

11

balances. To help confirm the Department’s corrective measures hold, the Chief has

12

requested that OIG annually follow up on this audit. The Department is committed to

13

introspection and to accepting and correcting any shortcomings OIG finds. The Chief

14

has made clear that honest, self-analysis is the new norm within the Department and

15

will remain that way under her watch and into the future.

16
17
18

TASK 2—INTERNAL AFFAIRS TIMELINES
Task 2 centers on the idea that “[f]airness to complainants, members/employees

19

and the public requires that internal affairs investigations be completed in a timely

20

fashion.” To help achieve that goal, Task 2 provides two things:
1.
. . . OPD shall develop policies regarding timeliness
standards for the completion of Internal Affairs
investigations, administrative findings and recommended
discipline.

21
22
23
24
25

2.
Compliance with these timelines standards shall be
regularly monitored by IAD command and the Department’s
command staff. If IAD experiences an unusual proliferation
of cases and/or workload, IAD staffing shall be increased to
maintain timeliness standards.”

26

Task 2 has been inactive for years. The IMT, though, recently looked at Task 2

27

by reviewing IA cases with findings in April 2019. Dkt. No. 1296, at 2-3, 62nd Report

28
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1

(July 11, 2019). As for the second part of Task 2, the IMT found that the Department

2

is regularly monitoring timelines and noted that the Department is increasing its

3

staffing for Division-level investigations. Id. at 3. But the IMT found the Department

4

to be out of compliance with the first part of Task 2.

5

The Department has timelines to help make sure it completes thorough

6

investigations and does not miss the opportunity to impose appropriate discipline. To

7

that end, the Department requires that 85% of Class I and Class II misconduct

8

investigations be completed within 180 days. Unfortunately, the City significantly

9

missed that mark in April 2019. Id. at 3.

10

This does not point to a future problem. To start with, the backlog is cleared.

11

The Department identified this issue before the IMT made its finding. And the

12

Department took important steps to get back on track, such as training and assigning

13

additional experienced supervisors to review the investigations.

14

At all times, the Department has emphasized high investigatory standards and

15

has not placed checking-the-box for Task 2 above quality. This in part, the

16

Department believes, explains the backlog. OIG, though, is auditing this task to

17

unpack what happened and to help guard against future percentage drops. At first

18

glance, it looks like the backlog began last year. Lastly, the Department is not aware

19

the backlog led to the failure to impose appropriate discipline in any case.

20
21

TASK 5—INTERNAL AFFAIRS COMPLAINT PROCEDURES

22

Since the last CMC, the IMT reviewed Task 5 once. Dkt. No. 1284, at 6-8, 61st

23

Report (May 23, 2019). As with the last two times it reviewed Task 5, the IMT noted

24

that not all subtasks are being actively monitored and the Department remains in

25

compliance with many of those that are. Dkt. No. 1240, at 14-16, JCMS (March 22,

26

2019). Since July 2018, the Task 5 reviews have been mainly positive. Id. And the

27
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City has implemented all the Court Investigator’s recommendations concerning

2

subtasks. Id.
Despite all this, the IMT found the City out of compliance with Task 5 based “on

3
4

the provisions of the March 23, 2016 Court Order [concerning IA No. 15-0771] and

5

several troubling issues noted in this most recent assessment.” Dkt. No. 1284, at 8,

6

61st Report (May 23, 2019). The latter “issues,” apparently have to do with the IMT’s

7

differing take on two of 19 cases it reviewed. Id.
Against that backdrop, the City believes that it is in substantial compliance

8
9
10

with Task 5. Here is a snapshot of the IMT’s findings as to the subtasks dealing with
the quality of investigations, which are the key subtasks:

11
12

SUBTASK 56TH REPORT

58TH REPORT

61ST REPORT

13

5.15/ 5.16

The Department
gathered all relevant
evidence and
conducted appropriate
follow-up interviews
but the IMT disagreed
with how the
Department assessed
the evidence in one of
15 cases.

The Department
gathered all relevant
evidence, conducted
appropriate
interviews, and
properly assessed the
evidence in all 18
cases.

The Department
gathered all the
relevant evidence, but
the IMT disagrees
with how the
Department assessed
the evidence in two of
19 cases.

5.17

“OPD has a sustained
history of 100%
compliance with this
task.”

“OPD has a sustained
history of 100%
compliance with this
task.”

“OPD has a sustained
history of 100%
compliance with this
task.”

5.18/ 5.19

The IMT disagreed
with findings in one
out of 15 cases.

“We did not disagree
with the findings in
any of the [18] cases
reviewed.”

The IMT disagreed
with the findings in
two of 19 cases.

5.21

The IMT approved of
all the administrative
closures in the
sample.

The IMT approved of
all the administrative
closures in the
sample.

The IMT approved of
all the administrative
closures in the sample.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
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As this chart shows, the IMT has approved of 94% of the cases it reviewed in the

1
2

past three reviews. Going back to 2010, there is a 90% approval rate. All this points

3

to compliance.

4
TASKS 24 AND 25—FORCE INVESTIGATION AND REPORTING

5

The Department has been deemed in compliance with Tasks 24 and 25 since

6
7

2015. But in November 2018, the Court reactivated the two tasks due to force-

8

reporting issues that were emerging.

9

The IMT discussed the two tasks in its May 2019 report that came out well

10

before OIG’s Special Report on force reporting. As to both tasks, the IMT had the

11

same thing to say:

12

“The Court’s reactivation of Task 25 at a November 2018
Case Management Conference resulted from our serious
concerns with the Department’s handling and investigation
of recent uses of force. It remains to be seen if forthcoming
policy revisions and other changes, prompted by our
involvement and our review of previously unexplained
reductions in reported use of force, will have a positive
outcome on this issue. As a result, OPD is in partial
compliance with this Task.”

13
14
15
16
17
18

Dkt. No. 1284, at 13, 16, 61st Report (May 23, 2019).
The Department began correcting this issue after OIG shared its initial findings

19
20

concerning its firearm audit in September 2018. And as set forth in the Office of

21

Inspector General Special Report section above, the Department critically examined all

22

these issues, promptly prescribed strong medicine, and set up its own monitoring

23

system. Among other things, the Department rewrote partially unclear policies that

24

have been previously revised under the NSA, sent clear messages through the ranks,

25

held officers accountable, and further empowered OIG to keep the Department on

26

track.

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1
2

TASK 30—EXECUTIVE FORCE REVIEW BOARDS
The IMT has not assessed Task 30 since the last CMC. Three days before the

3

City filed its last statement, the IMT found the City out of compliance based solely on

4

one EFRB, which stemmed from the unfortunate incident involving Joshua Pawlik.

5

Dkt. No. 1238, at 5, 58th Report (March 19, 2019). Before that, the IMT found that all

6

17 EFRBs within the prior five years complied with the NSA. See Dkt. No. 1240, at

7

16-17, JCMS (March 22, 2019). In doing so, the IMT consistently praised the EFRBs

8

it observed. Id.

9

First, as the City explained in its last statement, the City firmly believes that

10

the EFRB at hand was of the same ilk. At bottom, the Chief and the IMT differ on

11

whether the EFRB’s findings are correct. The CPRA’s views are closer to the Chief’s

12

and the Police Commission’s to the IMT’s. At the same time, there is a civil lawsuit

13

placing the reasonableness of the officers’ actions at issue. The fact that the Chief and

14

the IMT see the case differently does not mean that the EFRB was deficient.

15

Second, even if the IMT has concerns about certain aspects of the subject EFRB,

16

it is hard to see how those specific parts of one EFRB—all on their own—mean that

17

the City’s EFRB process—as a whole—is out of compliance.

18
19
20
21
22
23
24
25
26
27

Here is the text of Task 30:
1. An EFRB shall be convened to review the factual
circumstances surrounding any Level 1 force, in-custody
death, or vehicle pursuit-related death incidents. A firearm
discharge at an animal shall be reviewed by the EFRB only
at the direction of the Chief of Police. The Board shall have
access to recordings and/or transcripts of interviews of all
personnel on the scene, including witnesses, and shall be
empowered to call any OPD personnel to provide testimony
at the hearing.
2. OPD shall continue the policies and practices for the
conduct of EFRB, in accordance with the provisions of DGO
K-4.1, FORCE REVIEW BOARDS.
For years, the City has been conducting EFRBs, which, by their very nature,
have involved grave, controversial situations. And for years, those EFRBs have gone

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1

according to Department policies and the NSA. The City strives for perfection, but it

2

is not the compliance standard.
Third, the City notes here that it has worked extensively to achieve one of the

3
4

Board’s key deliverables out of the subject EFRB: rewriting the policies on addressing

5

armed and unresponsive persons, deploying designated arrest teams, and using

6

armored vehicles.
Lastly, the City appreciates how the Court has generously given its time to

7
8

observe other proceedings that are important under the NSA. In that spirit, the City

9

welcomes the Court to attend any future EFRB—without notice.

10
TASK 34—STOP DATA; AND VISION

11

The City is proud of its robust stop-data work and its emergence as a testbed for

12
13

new strategies for stamping out historical inequities. At this point, data is in the

14

Department’s DNA. This is true to the City’s broader work around race and equity.

15

And the Department is excited about its growing work with Race & Equity.

16

I.

17

RACIAL IMPACT REPORT AND DATA INTEGRITY
In April 2019, the Department published a Racial Impact Report. See Ex. F,

18

2016-2018 Racial Impact Report. In 2018, the Department reduced its total stops by

19

37 percent from the year before, dropping the number from over 30,000 stops to

20

19,900. For African Americans, there was a 43-percent reduction, lowering the total

21

from 19,185 stops to 10,874. The City previewed the findings in its last statement.

22

Dkt. No. 1240, at 18-28, JCMS (March 22, 2019). In short, the Department’s

23

intelligence-led strategies and risk management are making a big difference. Id.

24

The data’s integrity, moreover, is sound. The Department checked stop data

25

against dispatch data. When an officer stops someone, the officer calls the dispatch

26

center to put out her location. That is vital to officer safety. The stop data lined up

27

with the dispatch data for those stops.

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1

II.

The Department has implemented 47 of Stanford’s 50 recommendations. Here

2
3

STANFORD RECOMMENDATIONS

are the three that remain and their status:

4

NO. RECOMMENDATION

STATUS

5

11

Invest in the development of a
BWC early-warning system.

VISION will incorporate body-camera
footage that supervisors can access
through a link and review without delay.
This recommendation will be in place once
VISION is online.

12

Build a stop data dashboard.

The dashboards have been designed and
previewed for the IMT and Plaintiffs’
lawyers. This, too, will be in place once
Vision is online.

17

Hire a data manager.

The City has interviewed viable candidates
and will soon make its final selection. The
manager will work directly with OPD
leadership and supervisors to collect the
best data for managing risk, make sure its
reliable, and maximize its use.

6
7
8
9
10
11
12
13

The Department is thus on the verge of fully implementing the

14
15

recommendations. And the fruitful collaboration with Stanford will continue. Among

16

other things, the Stanford team and Department leaders are creating next-level risk

17

management slides. The two are also folding AB 953 data into the Department’s self-

18

oversight. Other joint work centers on understanding what dispatch data adds to

19

stop-data analysis.

20

III.

21

GENERAL ORDER R-02
The City has a freshly minted policy on searching people on probation and

22

parole. Ex. G, General Order R-02. The new, data-driven policy is widely recognized

23

as ahead of the curve. All that is left is for the City to invite and consider feedback

24

from the OPOA.

25
26
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1

IV.

CRITICAL ANALYSIS OF DISPARTIES
The Department continues to perfect the way it probes disparities at squad and

2
3

officer levels. To that end, the Department has folded in detailed, area risk review

4

into its larger risk management reviews.
With each new meeting, the Department sharpens its focus and scrutiny. The

5
6

Department carefully reviews deliverables from prior meetings and the progress of

7

officers who are subject to intervention or monitoring. As the City noted in its last

8

statement, the IMT’s report highlighted the Department’s “extensive review of

9

‘deliverables’” the risk management team provided to Area Commanders. Dkt. No.

10

1240, at 21. And it had no criticism of the Department’s “drill down” to the officer

11

level. Id.
Finally, the City appreciates the Court taking the time to observe a risk

12
13

management meeting in May 2019 and welcomes future visits.

14

V.

15

VISION (FORMERLY PRIME)
The City aimed to have VISION up and running in July 2019 but gave itself

16

until September 2019, mindful of delays that are inherent in all the design, building,

17

and data conversion this complex project entails. October 2019 is the new target.

18

Unfortunately, more time is needed to finish cleaning up data that spans back to the

19

mid-2000s.

20

As the system rounds into shape, it is plain to see that all the planning and

21

efforts will pay off. At the last site visit, the Department previewed the dashboards

22

that will allow supervisors and commanders to see key data in real time. The City

23

would also like to preview them for the Court in the near future.

24

Finally, the City is devoting even more resources to ensuring the Department

25

has advanced risk-management technology and makes the most of it. For instance, in

26

addition to the data manager mentioned under the Stanford recommendations, the

27
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1

City has already hired a new Deputy CIO whose sole job is to support the Public

2

Safety IT needs. That specialist is currently helping complete VISION.

3

VI.

4

ADDITIONAL EFFORTS
Besides all these efforts, the Department continues to try out new, thoughtful

5

strategies. For instance, the Chief is piloting a beat-integrity program in Area 2. The

6

idea is that officers should stop people for discretionary reasons only in the beats to

7

which the officers are assigned. There is not yet enough data to draw broad

8

conclusions. But the early results are promising, showing overall disparity reductions

9

in Area 2.

10

Another example concerns traffic stops. The Chief has made clear that the

11

Department places little value on low-level equipment stops unless they are tied to a

12

crime. Yet another, the Department is tracking officers’ community engagement and

13

reviewing that data with the officers.

14
15
16

TASK 45—CONSISTENCY OF DISCPLINE POLICY
Since the last CMC, the IMT assessed Task 45 once. Dkt. No. 1296, at 12-14,

17

62nd Report (July 19, 2019). As in 59th Report, the IMT found the Department is

18

doing what the task requires: documenting and maintaining an adequate system for

19

tracking discipline and corrective action; consistently imposing discipline; and

20

appropriately training Skelly officers. Id. In addition, the City has implemented all

21

the Court Investigator’s recommendations stemming from IAD No. 15-0771. See Dkt.

22

No. 1240, at 25-26, JCMS (March 22, 2019).

23
24

Yet the IMT again found the City in partial compliance—without explanation.
Dkt. No. 1296, at 12-14, 62nd Report (July 11, 2019).

25

In its last statement, the City respectfully sought guidance on what steps are

26

needed to achieve full compliance. Id. The City respectfully renews that request or

27

seeks to be deemed in compliance.

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CONCLUSION

1
2

Against that backdrop, the City sees itself at the tip of the spear pointed

3

towards combating historical inequities in law enforcement. Change has not come

4

easy, but it is happening every day within the Department. The City—including the

5

Department—has strong, effective leaders who are steering the Department closer

6

each day to equitable, constitutional policing. Just a few months ago, Plaintiffs lauded

7

the City’s gains, especially around equity and accountability. Dkt. No. 1266, at 4, Opp.

8

to Intervention Motion (April 30, 2019).

9
10

Going forward, the City seeks guidance on the compliance metrics for those
tasks the IMT and Compliance Director have deemed out of compliance.

11

Further, the City hopes that the IMT and Compliance Director will allow

12

interim leadership assignments to become permanent. This is vital to sustaining the

13

City’s gains and preventing crime, which is pivoting upward. Currently, there are 15

14

such assignments.

15
16

At the CMC, the following City leaders will be prepared to provide any
additional information the Court seeks:

17
TOPIC

18

CITY LEADER
 Chief Anne Kirkpatrick

20

The Department’s overall
progress and cultural
transformation

21

Task 2

 Captain Sekou Millington

22

Task 5

 Captain Sekou Millington

23

Tasks 24 and 25 and
OIG’s Special Report

 Assistant Chief Darren Allison
 Inspector General Kristin Burgess

Task 30

 Assistant Chief Darren Allison

26

Task 34 and
Race & Equity Work

 Deputy Chief Leronne Armstrong
 Captain Frederick Shavies

27

VISION

 Director Virginia Gleason

19

24
25

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1

Finally, the City concludes with examples of lasting cultural change over time:

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
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1

OPOA’S STATEMENT

2

Intervener, Oakland Police Officers Association ("OPOA" & "Association")

3

continues to actively participate with the City of Oakland ("City"), Oakland Police

4

Department ("Department") as well as Plaintiffs' counsel on various NSA tasks and

5

related matters. The OPOA will continue to collaborate with the parties to achieve

6

full compliance with the NSA.

7
Respectfully submitted,

8
9

Dated: August 14, 2019

BARBARA J. PARKER, City Attorney
DAVID A. PEREDA, Special Counsel

10
11

By:

12
13

Dated: August 14, 2019

JOHN L. BURRIS
Law Offices of John L. Burris

14
By:

15
16

Dated: August 14, 2019

19

By:
Dated: August 14, 2019

22

/s/ James B. Chanin
Attorney for Plaintiffs
ROCKNE A. LUCIA, JR.
Rains Lucia Stern St. Phalle & Silver

20
21

/s/ John L. Burris
Attorney for Plaintiffs
JAMES B. CHANIN
Law Offices of James B. Chanin

17
18

/s/ David Pereda*
Attorneys for Defendants
CITY OF OAKLAND

By:

/s/ Rockne A. Lucia, Jr.
Attorney for Intervenor
OAKLAND POLICE OFFICERS ASSOCIATION

23
24

*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.

25
26
27
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