OakTalk

Earlier this month, we started reviewing the last two years’ monitor reports and assessing the areas where the City has repeatedly been unable to comply. We blogged about these compliance problems here and here. Today we look at five more problem tasks.

Task 34. Vehicle Stops, Field Investigations, and Detentions

This is a documentation task, and the requirement is straightforward: for every vehicle stop, field investigation or detention, the officer must file a “stop report” that says why the stop was made:

1. OPD shall require members to complete a basic report on every vehicle stop, field investigation and every detention. This report shall include, at a minimum:

a. Time, date and location;

b. Identification of the initiating member or employee commencing after the first year of data collection;

c. Reason for stop;

d. Apparent race or ethnicity, and gender of individual(s) stopped;

e. Outcome of stop (arrest, no arrest);

f. Whether a search was conducted, and outcome of search;

g. Offense categories (felony, misdemeanor or infraction).

2. This data shall be entered into a database that can be summarized, searched, queried and reported by personnel authorized by OPD.

3. The development of this policy shall not pre-empt any other pending or future policies and or policy development, including but not limited to “Promoting Cooperative Strategies to Prevent Racial Profiling.”

So every time an officer stops anyone for any reason, he or she has to make a report saying why. Oakland citizens who have watched this process on ride-alongs report that the process can take as long as twenty minutes, often far longer than the stop. This requirement is designed to prevent racial profiling, and it’s impossible to argue with this goal.

For the third quarter of last year (the same quarter covered by the Monitor’s most recent report), the OPD Office of Inspector General audited the department’s performance on this task, and concluded the OPD was in compliance.  But the Monitor thought otherwise. The OPD is using an electronic form which includes a field for “Reason for Stop,” and presents choices from which the officer selectes one. Said the Monitor: “none of the options available for officers to select under “5) reason for the stop” clearly elicit or help to articulate an identifiable basis and/or authority for the stop.”

Tasks 40 and 41. Personnel Assessment System

The Personal Assessment System (“PAS”) is a risk management database system that includes all the statistics about the officers: how many arrests, how many sick days, how many complaints whether or not substantiated, etc. It tracks, and flags for investigation officers with excess complaints or excess uses of force, as well as excessive absences and many other potential indicators of problem officers.

This program, or something like it, is absolutely essential for a modern police department, and we do not question its importance. But it is a sophisticated technology requirement, in a city whose approach to technology is thirty or more years out of date.

In the third quarter of this year, the OPD was, remarkably, unable to report how many arrests its officers had made. It is difficult to determine from the report why this is. The monitor states only that it was “because of a problem of multiple counting of arrests when data from Alameda County are used in conjunction with the police data management system.” Because many of the key PAS ratios depend on the number of arrests, there was no way the department could be in compliance with this task.  And the monitor expresses skepticism about when compliance will occur:

Our concerns are amplified by the fact that the issue involves arrest data, which is the most commonly used productivity measure in policing. We are dismayed that at this point in the history of the NSA – and in the development of the risk management system in particular – we can neither report that the Department is meeting NSA data-related requirements, nor do we have confidence in the Department’s ability to correct this problem in a timely manner.

Task 45. Consistency of Discipline Policy

Here are the NSA requirement:

On or before October 6, 2003, OPD shall revise and update its disciplinary policy to ensure that discipline is imposed in a fair and consistent manner.

1. The policy shall describe the circumstances in which disciplinary action is appropriate and those in which Division-level corrective action is appropriate.

2. The policy shall establish a centralized system for documenting and tracking all forms of discipline and corrective action, whether imposed centrally or at the Division level.

3. All internal investigations, which result in a sustained finding, shall be submitted to the Discipline Officer for a disciplinary recommendation. The Discipline Officer shall convene a meeting with the Deputy Chief or designee in the affected chain-of-command for a confidential discussion of the misconduct, including the mitigating and aggravating factors and the member/employee’s overall performance.

4. The COP may direct the Discipline Officer to prepare a Discipline Recommendation without convening a Discipline Conference.

As can be seen, the requirement is procedural. Until recently, the monitor would quite correctly find noncompliance because discipline data was not properly being entered into the data base.

The data entry problem has now been fixed, but the City is out of compliance anyway – apparently because the monitor disagrees with some discipline decisions. The compliance level requirement is 95%. When the monitor reviewed 50 cases from the third quarter of 2011, he found three cases where he disagreed with IAD. That means only there were only 47 (or 94%) of the reviewed cases, so the department was deemed out of compliance.

Conclusion

As MOBN! began to dig deeply into the recent reports, our initial reaction (stated in our previous posts) was that the City would never come into compliance, and receivership was inevitable. We’re not longer so sure about that.  In our next two posts, we will examine two more matters We will look at how Oakland might achieve full compliance and avoid receivership. And we’ll look at the Los Angeles experience and see what Oakland might learn.

Last week, we provided a birds’-eye view of the last five quarterly monitors’ reports on the City’s compliance with the NSA, the consent judgment agreed to by plaintiff’s and the City in the Riders’ lawsuit. Today, we hone in on some of the compliance areas that have been particularly problematic.

Task 5. Complaint Procedures for IAD (Internal Affairs Division)

Task 5, addressing IAD procedures, has 21 sub-tasks. But the monitor has usually found the City in compliance with all the sub-tasks except 5.15, 5.16, 5.18 and 5.19. The NSA describes the elements of sub-tasks 5.15 and 5.16 as follows:

In each complaint investigation, OPD shall consider all relevant evidence, including circumstantial, direct and physical evidence, and make credibility determinations, if feasible. OPD shall make efforts to resolve, by reference to physical evidence, and/or use of follow-up interviews and other objective indicators, inconsistent statements among witnesses.

At some point in the past, either the parties negotiated or the monitor decided on compliance standards  for many of the open tasks, and the standard for this one is 85%. But this standard seems to have evolved beyond a requirement that the City accomplish sub-tasks 5.15 and 5.16 85% of the time.  Instead, the monitor now reviews the substance of  OPD’s resolution of the complaint and requires OPD to be in compliance with the monitor’s judgment in  85% of the cases. In other words, the monitor measures OPD’s judgment against his own, and if they don’t match, the monitor finds non-compliance.

For each quarter, the monitor reviews a sample of 25 citizen complaints for both literal conformance to the NSA and the monitor’s agreement with the department’s findings. And usually the monitor concludes that in more than 15% of the sampled cases (i.e., more than 3 ) he disagrees with IAD’s credibility assessment.

Similarly, in the last two reports, the monitor found non-compliance in tasks 5.18 and 5.19, which are follows:

OPD shall resolve each allegation in a complaint investigation using the “preponderance of the evidence” standard. Each allegation shall be resolved by making one of the following dispositions: Unfounded, Sustained, Exonerated, Not Sustained, or Administrative Closure.

The compliance standards for “preponderance of the evidence standard” resolution and designation as “Unfounded,” “Sustained,” etc. are 90% and 95%, respectively.  But this apparently means the monitor must agree with the resolution and designation 90% and 95% of the time. In the latest sampling of 25 cases, the monitor disagreed with 3 resolutions, so the City was non-compliant with Task 5.18.  The monitor disagreed with OPD’s designation of 14 out of  71 allegations (19.7%), so the City  was non-compliant with Task 5.19.

Since compliance with Task 5 apparently requires the monitor’s agreement with the resolutions and designations, it is hard to see how the City will ever be in compliance with this Task.

Task 20. Span of Control of Supervisors

The NSA provides:

Under normal conditions, OPD shall assign one primary sergeant to each Area Command Field Team, and, in general, (with certain exceptions) that supervisor’s span of control shall not exceed eight (8) members.

and

During day-to-day operations, in the absence of the primary supervisor (e.g., due to sickness, vacation, compensatory time off, schools, and other leaves), the appropriate Area Commander shall determine, based on Department policy and operational needs, whether or not to backfill for the absence of the sergeant on leave.

The compliance standard for this one is 85%.  In other words, the supervisor should be the officers’ regular supervisor (not back-filled, substituted for, etc.) 85% of the time. Over the past 5 reports, Oakland has been out of compliance with this 85% standard by small amounts, most recently 2%.   With the twin problems of budget cuts and an ever-shrinking police force, it seems likely that the scrambling to back-fill when people go on sick leave or vacation or quit, etc. will only increase. Thus, the City is not likely to meet this standard in the future.

Task 24. Use of Force Reporting Policy

Before discussing this Task, under which the City is almost always found to be out of compliance with three sub-tasks, it is worth quoting the relevant parts of the NSA requirement, which requires adoption and implementation of policies and procedures for “use of force notification and reporting.”  Oakland’ police must require the following:

1. Members/employees notify their supervisor as soon as practicable following any investigated use of force or allegation of excessive use of force.
2. In every investigated use of force incident, every member/employee using force, and every member/employee on the scene of the incident at the time the force was used, shall report all uses of force on the appropriate form, unless otherwise directed by the investigating supervisor.
3. OPD personnel document, on the appropriate form, any use of force and/or the drawing and intentional pointing of a firearm at another person.
4.  A supervisor respond to the scene upon notification of an investigated use of force or an allegation of excessive use of force, unless community unrest or other conditions makes this impracticable.
5. OPD notify:

a. The Alameda County District Attorney’s Office immediately or as soon as circumstances permit, following a use of lethal force resulting in death or injury likely to result in death.

b. The City Attorney’s Office as soon as circumstances permit following the use of lethal force resulting in death or serious injury. At the discretion of the City Attorney’s Office, a Deputy City Attorney shall respond to the scene. The Deputy City Attorney shall serve only in an advisory capacity and shall communicate only with the incident commander or his/her designee.

c. Departmental investigators regarding officer-involved shootings, in accordance with the provisions of Section V, paragraph H, of this Agreement.

d. OPD enter data regarding use of force into OPD’s Personnel Assessment System (PAS).

(Emphasis added).

So these  are reporting requirements. Officers must report when there is any use of force, including drawing guns “immediately or as soon as practicable.” Officers never report as soon as the monitor thinks they should. In the most recent report, the monitor finds 5 hours 15 min. too long. As the department continues to shrink and officers are stretched thinner, this is not apt to improve.

But the monitor’s approach to sub-tasks 24.2 and 24.3 is more disconcerting.  These are paper work requirements involving use of force.  And most recently, the monitor found the City in compliance “with the reporting requirements only.”  (Emphasis in the original document.) There is nothing in these sub-tasks but reporting requirements.  Nonetheless, the monitor found the City out of compliance because, out of 162 instances of drawn firearms, “[w]e are unable to find the pointing of a firearm necessary or justified in 21 instances, or 16%, of the 162 instances we assessed, due to the absence of any indication that the officer(s) or others faced imminent threat of harm.” Furthermore, the fact that supervisors found these uses of force appropriate “is illustrative of a need to address supervisory deficiencies.”

We have no idea whether police drawing of firearms in particular cases is or is not appropriate. We certainly agree the pointing guns is a serious matter, and we don’t think officers should draw weapons unnecessarily.  It  seems unlikely officers will be right in 100% of these incidents.

We were not present for the discussions between the attorneys, the monitors and the Court over the past nine years, and we admit we haven’t reviewed all 600+ pleadings in the case, so we do not know if the City at some point acquiesced in, or agreed to, the evolution from reporting requirements to “correct judgment” requirements.

But we find nothing in Task 24, or in the NSA, where the City agreed to have the monitor, or the court, pass judgment on the appropriateness of every officer action in the field. Since the standard seems to have become the monitor’s subjective, after-the-fact evaluation of officer actions in the face of perceived threats, it seems doubtful the City will ever be in compliance.

In our next installment, we will look four more tasks, related to Stops and Detentions, Discipline Policy and the Department’s Personnel Assessment System.

MOBN! members who follow Oakland city news in the media are aware by now that after nine years of Federal Court supervision, the City of Oakland and the Oakland Police Department are in more trouble than ever.  They were excoriated by Judge Thelton Henderson late last month for continuing failure to make progress in complying with the Consent Judgment (often referred to as the “Negotiated Settlement Agreement,” or “NSA”) that was the key part of the City’s settlement of Delphine Allen, et al. v. City of Oakland, et al., the “Riders” suit.  By February 27, both sides are required to submit a proposed briefing schedule, with the Plaintiff’s brief due no later than August 1, on the subject of whether the Judge should order the department into receivership.  Links to resources on the history of the NSA, the implications of receivership, the monitor’s reports, the arguments of both sides and the Judge’s decision are at the end of this post.  But this boils down to a takeaway conclusion and a huge takeaway question.  The conclusion:  Judge Henderson will almost surely impose a receivership.  And the very big question:  what will this mean for public safety in Oakland?

This is the first in a series of posts in which Make Oakland Better Now! is going to take a deep look at the areas where Oakland cannot seem to comply with the NSA and why it cannot do so.  After that, we will take a look at another jurisdiction – Los Angeles – that transformed itself from a Ramparts scandal-ridden failed department into “the national and international policing standard for activities that range from audits to handling of the mentally ill to many aspects of training to risk assessment of police officers and more,“  and experienced a dramatic reduction in crime as well. And finally, we will look at what it could mean to Oakland and to public safety if the Federal Court places the police department into receivership.

Where Oakland Stands on NSA Compliance

The original NSA, signed by the parties in January, 2003, contained 51 tasks, with various levels of complexity and a range of deadlines, the last of which was September, 2005.  The NSA provided for monitoring for five years, or for two years more “only if the Court determines it is reasonably necessary in order for the Monitor to fulfill his/her duties pursuant to this agreement.”  The five-year monitoring period was extended by two years in 2008.  The NSA expired in 2010, but because the City was still not in compliance, the parties signed, and the Court approved, a two-year Memorandum of Understanding extending monitoring and Court supervision as to the twenty-two tasks for which the City was out of Compliance.  In June of last year, it was clear the City would not be in full compliance by January, 2012, so the parties signed an Amended Memorandum of Understanding extending monitoring as to 13 of the tasks until January, 2014.  At the conclusion of the NSA and its replacement by the first MOU in 2010, the parties jointly selected Robert S. Warshaw of Police Performance Solutions, LLC as the monitor.

The most recent monitoring report – Mr. Warshaw’s eighth – creates a snapshot of only a three month period.  To give us a broader view, Paula Hawthorne and Bruce Nye of MOBN! conducted a meta-study of Mr. Warshaw’s fourth, fifth, sixth, seventh and eighth monitoring reports to see what the patterns were and try to determine where the failings occur.  They found that of the twenty-two tasks being monitored for the past two years, there were nine where Oakland had been in compliance for the past five quarters.  There was one (Field Training Program) which the monitor has deferred for the past five quarters.  There were seven tasks for which the compliance situation varied from quarter to quarter (sometimes in compliance, sometimes out of compliance, sometimes partial compliance).  There were five tasks where Oakland was consistently able to achieve only  “partial compliance.”

In the past, the monitor, City and Plaintiffs have negotiated various standards for compliance (e.g., 85%, 90%, yes or no, etc.) that do not actually appear in the NSA. Under these standards, and in the current environment, it seems unlikely Oakland will come into full compliance any time soon.  In our next two posts, we will discuss some of the more problematic areas.

In the meantime, here are some helpful links on the subject of the NSA:

Oakland North’s summary of how we got from the Riders suit to the NSA.

East Bay Express’s article on what receivership might mean.

The Negotiated Settlement Agreement.

Oakland Police Department Reports Page, including all monitor reports.

Judge Henderson’s January, 2012 Order

January, 2012 Joint Status Conference Statement in Delphine Allen v. City of Oakland

In our last post, we talked about David Kennedy’s violence reduction strategy, sometimes known as the “Ceasefire” program. 

Guess what? We actually started a Kennedy-inspired violence-reduction program here in Oakland. We called the heart of the program “call-ins.” It was operated by Oakland’s Department of Human Services together with the police, Oakland Community Organizations (“OCO”) and with Measure-Y funded “outreach workers.”  

In the spring of 2010, OCO put together one of its “actions” to bring attention to the need for more funding for the “call-ins.” OCO asked for $1 million to save young lives. Three Councilmembers (Quan, Kaplan and Reid) attended the action.  All spoke enthusiastically about the program.  None promised funding.  

But Oakland received literally millions of dollars from the State and Federal government to support the Call-in program. As described on the Governor’s web site: 

Oakland Gang Reduction, Intervention, and Prevention Program (O-GRIPP) will build upon the City’s Measure Y, a $20 million per year investment in crime reduction, to implement a strategy modeled after the Boston Operation Ceasefire project.  O-GRIPP will target six contiguous police beats in West Oakland.  It will fund a data analyst, case manager, expanded involvement of the Mayor’s Street Outreach Coordinator and a targeted community education message.  It will also form a West Oakland Public Safety Council that will be the focus of neighborhood crime reduction planning.  O-GRIPP will use data from probation, parole and police to identify gang-involved individuals and invite them to Call-Ins where law enforcement will outline sanctions for future violence, and job support service programs and employers will offer training, services and jobs. 

But the program really never got off the ground.  First, it operated mostly as a program offering social services, not the kind of “carrot and stick” program envisioned by Cease Fire.  Second, it brought in ridiculously small numbers of participants.  From September, 2009 until June, 2011, there were 15 call-ins, with a total of only 113 participants.  Two of the call-ins yielded only one participant.  By comparison, we understand a recent Bakersfield call-in had 350 participants. 

The call-in program did not measure violence reduction.  Instead, the goal seemed to be how many participants received job or education referrals, obtained jobs, received transportation passes, legal services, resume assistance, etc.  So the one reason for this violence reduction strategy – reducing firearm violence – has never been measured. 

And then we abandoned the program.  The police declined to participate further.  And nobody seems to know what, if anything, will happen next. 

As Kennedy puts it, dealing with the “bad” guys is not the problem–we do know how to deal with them, justly and effectively. The problem is dealing with the “good” guys–the well-intended but short-sighted elected officials who fail to properly manage programs and fail to provide ongoing support. 

Violent crime in Boston, after it declined greatly for a few years, came back up. The Kennedy-style programs were stopped. Now the programs are starting up again. Oakland’s program barely got started and then had implementation problems, so it was dropped. According to Oakland Deputy Police Chief Ersie Joyner, our problem was finding jobs for the young criminals who wanted to abandon violence and change their lives. So we dropped the program. 

Here we are, well into a fifth decade of more than 100 homicides on average annually in Oakland. There is plenty of evidence that properly implemented cease-fire programs really work. Indeed, one of Kennedy’s colleagues in violence-reduction program development has his office here in crime-ridden Oakland–he is Stewart Wakeling of the Public Health Institute. 

As with so many of Oakland’s problems, what we are lacking is the leadership and focus of our “good” guys. We need to deal effectively with our “good” guys so that we can start dealing  effectively with the bad ones.

For the last several weeks, much of the political talk in Oakland has centered around Occupy Oakland, the encampment, responses by the mayor, police and city council, and whether the mayor should be recalled.

These are important issues of the moment.  But once they have faded, Oaklanders will still have to face the fact that their city has the fifth highest crime rate in the United States and its homicide rate is on a pace to hit 107 in 2011.  With a twenty percent drop in sworn officers and plans to reduce police staffing even further, Oakland has no meaningful plan to reverse these trends and address the largest problem our City faces.

In the next week to ten days, we will be talking about a true gun violence reduction strategy that has worked in ten other American cities.  This strategy does not require an enormous influx of police officers.  The strategy acknowledges what Oakland politicians have long said: that you “can’t arrest your way out” of violent crime and that the continued incarceration of young, poor black men is getting us nowhere.  The strategy depends on a coordination of strict, police-enforced rules of conduct, availability of social services and most importantly, an understanding of this fundamental fact:  the people involved in most of our violent crime absolutely hate the violence.

Members of our community who believe that only policing will end crime will have a difficult time with what is sometimes disparagingly referred to as the “hug a thug” aspects of this strategy.  Activists who believe on ideological grounds that police are the problem and not the solution will likewise object.

But neither side of this debate can quarrel with what the numbers show.  This strategy results in dramatic reductions of violent crime for as long as the strategy is followed.  And the crime rate goes right back up again when the strategy is abandoned.

Today we talk about the strategy and its measured results.  In part II, we will talk about Oakland’s “Call-In” program, why it doesn’t work, and how it can be fixed.  And in part III, we will talk about lessons Oakland can learn from other cities.

Don’t Shoot

 Last month, David Kennedy, a criminologist at New York’s John Jay College, spoke in Oakland and elsewhere locally about proven methods for reducing urban violence, especially among young men involved in gangs. Kennedy’s book, Don’t Shoot: One Man, A Street Fellowship, and the End of Violence in Inner-City America describes dramatic successes in reducing homicides and other violent acts by 50% within a short period of time in Boston and in other cities. A shorter version of Kennedy’s story, from the June 22, 2009 New Yorker, is available here.

At first blush, the Kennedy strategy seems naïve.  But it actually works.  While the strategy varies from city to city, the basic components are these:  Young gang members are asked to come to a meeting of community members, clergymen, local officials, city and federal law enforcement officers. At these “call-ins” the young people are told that there is enough evidence of their criminal activities to put them in jail. They are also told that all the community members and others present care about them and believe that they are essentially good people with potential to live socially productive lives. They are offered help to learn how to get along in mainstream society, and to contribute to it without violence. They are offered the choice of jail or joining society.

This is a carrot and stick strategy.  Gang members are told that if they continue their violent ways, law enforcement will come down on them like a ton of bricks.  If they renounce violence, the community will make job, remedial education and other services available to them.  It is essential that “you don’t write checks you can’t cash.”  This means that both services and suppression have to be fully available.

As Kennedy said at his presentations, “We know how to end violence in our communities.”  These programs really seem to work.  The programs have been tried in eleven different communities.  While the programs and the metrics have differed, the outcomes have almost always been remarkable:

Study                                                              Main Outcome

Boston Operation Ceasefire                          -63% youth homicide

Indianapolis IVRP                                            -34% total homicide

Stockton Operation Ceasefire                     -42% gun homicide

Lowell PSN                                                          -44% gun assaults

Cincinnati CIRV                                                -36% GMI  involved homicides

Newark Ceasefire                                              NS  reduction gunshot wound incidents

LA Operation Ceasefire                                  Sig short-term red. violent gun crime

Chicago PSN                                                        -37% homicide, -30% recidivism rate

Nashville DMI                                                  -56% reduction drug offenses

Rockford DMI                                                  -22% non-violent offenses

Hawaii HOPE                                                     -26% recidivism rate

Source:  Braga & Weisburd, 2011, The Campbell Collaboration, The Effects of the Approach on Crime.

Kennedy observes that this strategy does not work if it is looked at as another program.  It needs to be a way of life.  If it is a “program,” cities eventually stop using it, and the crime begins to rise again.  This happened in Boston and many of the other cities where the strategy initially had success.  The strategy requires institutional memory and the departments implementing it must take the long view.

In our next post, we will talk about Oakland’s version of the Kennedy-inspired violence reduction strategy.