But not surprisingly, things are not all that simple.  In some ways they are much worse than reported, in others they aren’t nearly as bad.  Part of the problem results directly from ongoing City and OPD malfunctions.  Part of it is caused by overreach by the monitor and problems unrelated to the NSA.

But when all is said and done, it looks as though we are getting close either to receivership or to some other level of Federal Court supervision that is unprecedented in modern American history.  The Court has set a hearing on the receivership question for this December.  Oakland and its citizens may be facing the biggest challenge ever:  figuring out how to operate in a new, more costly and tougher environment while getting themselves past the NSA and making the City a safer place.

We’ve looked carefully at the latest report, and undertaken a detailed analysis (see tables after the jump).  But, put simply, there seems to be a combination of the following factors:  (1) a major problem with OPD’s Personnel Assessment System, barely touched on in the report but posing serious, long-term compliance problems;  (2) a collapse of the City’s review of complaints arising out of Occupy Oakland police actions;  (3) multiple violations of Oakland’s crowd control policy, which are cause for serious concern but are not violations of the NSA;  (4) at least two instances where the monitor declared the OPD to be out of compliance in the fourth quarter of 2011 while admitting there was no supporting evidence;  and (5) continued mission creep, in cases where OPD follows the letter of the NSA, but the monitors find non-compliance because they disagree with judgment calls made by the department in individual cases.

The citizens of Oakland are entitled to Constitutional policing.  They are entitled to a reformed police department and an end to the millions of dollars paid out in police misconduct suits.  City leadership needs to ensure that  the promises made more than nine years ago are kept, that the City brings itself into compliance, and that Oakland moves beyond the NSA.  But the citizens of Oakland are also entitled to live in a safe community.  And so far, no party in the Allen case (the Federal case in which the NSA was issued) is representing the citizens of Oakland and speaking for their right to be safe.

For those who would like more details,  we have a task-by-task discussion, and a chart comparing the 8th and 9th reports, after the jump.

Personnel Assessment System:

We were told some weeks ago by City insiders that the IT system used for tracking possible problem police officers is in a state of collapse and will cost a lot of money to replace. The same thing was reported earlier this month at Bay Citizen.   If this is true, it won’t be fixed quickly.  It will require a completely different approach to IT.  And it will be painful.  Yet all the monitor’s report says about this clearly important element is the following:

We are pleased to report that the data problems appear to have been resolved, although not in time to be useful during the current reporting period.

And finally

 We are hopeful that all of the now-identified data problems will be resolved in the very near future, and that any new issues can be addressed more expeditiously. Unfortunately, that has no bearing on our current finding.

So while the Monitor is only minimally critical of PAS implementation, it seems likely that things are about to get much worse.

Complaints Arising From Occupy Oakland:

We have been repeatedly told that there are more investigators in Internal Affairs then there are investigating homicides.  We don’t know if that is true (and there isn’t enough City transparency to tell).  But however many there are, there weren’t enough to investigate the 1,069 complaints arising out of Occupy activities last fall.  Task 2 requires that these be fully investigated within 180 days.  While the City did not fail this deadline during Q4 of last year – since the 180 days had not run yet – there seems to be no possibility that Oakland will meet the deadline.

The City initially planned to contract out much of the investigation to Frazier Group, which in turn intended to subcontract out the investigation.  As of early May, the plan had changed, the City planned to contract directly to investigators, and it seems the investigation had not yet even begun. This will be a major item of noncompliance in the next report, and by itself may be sufficient to drive the department into receivership.

Crowd Control

Oakland’s crowd control policy was agreed to in settlement of an entirely different law-suit.  Thee seems to be much  evidence available on You Tube and elsewhere to support the position that OPD’s responses to Occupy last year failed to comply with this policy in a number of ways.  For example, the policy prohibits officers from covering their name plates, from shooting bean bag projectiles, tear gas and flash-bang devices for crowd control, and from  kettling tactics. There is evidence that of all of these occurred.

If the OPD did violate this policy as alleged, this is a serious problem.  But the NSA does not address crowd control.  And we have a difficult time understanding why the monitor is addressing matters outside of his legal purview.  If the monitor feels he is responsible for the overall performance of the OPD regardless of whether the NSA requirements are implicated, then he needs to take responsibility for the City’s safety as well.

Findings of Non-Compliance Without Evidence of Non-Compliance

As shown in the chart below, there are at least two instances where the monitor held that the Department was out of compliance where there was either no supporting evidence, or the evidence was to the contrary.  For task 20, span of control, the Monitor found non-compliance even though he acknowledged he hadn’t evaluated compliance.  For Task 26, Use of Force Review Board, the Monitor found non-compliance even though he acknowledged subsequently received evidence that the department was in compliance.

Mission Creep

As in previous reports, there are multiple tasks where the OPD was in compliance with the letter of the NSA, but the Monitor found it out of compliance because of his disagreement with OPD judgments.  That appears to be the case with respect to Tasks 5, 24, 25 and 30.

The following table summarizes the findings of noncompliance in the most recent report, as well as in the previous one.

District 15 includes significant amounts of West Contra Costa County, Piedmont Albany and Berkeley as well as North Oakland.  Voters elect 9 members, and there are 11 candidates on the upcoming June 5 ballot.  We believe it is important that North Oakland be well-represented on the committee, which is active in recruiting candidates and campaign contributions for Democratic Party races.

Frank is a MOBN! board member and MOBN!’s Director of Communications.  He is also chair of the Greater Rockridge NCPC, a member of the Community Policing Advisory Board and a member of the Neighborhood Watch Steering Committee.  Jill is the chair of the Montclair Safety Improvement Council, Montclair’s NCPC.  She is a former Vice-Chair of the Oakland Library Commission and Keep Oakland Beautiful board member.   Both Frank and Jill are long-time North Oakland advocates for public safety, the most critical issue faced by our city.

MOBN! urges all Oaklanders who care about public safety to vote for Frank Castro and Jill Broadhurst for Assembly District 15 Democratic Central Committee.

True Vine Church is in West Oakland. Its members are at ground zero of Oakland’s violence. It is said that a Black or Hispanic youth has a greater chance of being killed in West Oakland than if he was a soldier in Afghanistan  (although many of those killed are too young to even be in the army). Pastor Zack  and the congregation have started a group, Soldiers Against Violence Everywhere (S.A.V.E.) and the “Say Something” campaign, both striving to bring peace to the community.

Citing a recent column by The Chicago Sun Times’ John Fountain, Pastor Zack told us that the number of black males 14 and older slain across the country from 1976 to 2010 is 243,996; add to that number 51,892 black females ages 14 and older, plus five whose gender was not identifiable, and the total, not counting children, is 295,893 — more than the combined U.S. losses of World War I, the Vietnam, Korean and Mexican-American wars, the War of 1812 and the American Revolutionary War. From 1980 through 2008, 93 percent of black victims were killed by blacks. ”Think of this number”, said Pastor Zack. “We must think of this as a public health problem, one that we can address as a community, as we have addressed similar problems. Think of the “Just Say No” campaign to combat drugs, or the campaign against HIV/AIDS.”

The public health problem of black-on-black lehtal violence needs a public health campaign to stop the media and community silence around the problem, apparently caused by numbness on the part of the media and certainly caused by fear in the community.

This is why each week SAVE has a Stand-In at a place near where someone was killed, to note that a person died there and that this death should not go unnoticed.; SAVE holds an annual Peace March and Rally, in the fall, where Community leaders come together and encourage the community to Say Something. 

Stewart Wakeling works with cities to, implement Project Ceasefire programs.  As Oaktalk has discussed in numerous earlier posts, Operation Ceasefire is an innovative mixture of social support and law enforcement pioneered by David Kennedy and described in his book “Don’t Shoot: One Man, A Street Fellowship and the End of Violence in Inner-City America.”

According to Wakeling, a successful Ceasefire operation must 1) be led by a high-level steering group 2) have exceptionally strong, dedicated project manager able to work across agency lines, who is no less than half time completely devoted to Ceasefire 3) be designed and carried out by an empowered working group including representatives from the criminal justice agencies, the clergy and service providers.  4) must be a core strategy of the OPD, federal enforcement, street outreach and community services and 5) be informed by best practice. Importantly, Cease Fire cannot be viewed as a program;  rather, it constitutes a dramatic change in a city’s organizational principles in responding to violence.  According to Wakeling, implementation that follows these recommendations can result in an effective Operation Cease FireI in Oakland.

OCO’s Barbara Lafitte-Oluwole, a leader in learning about and advocating for Ceasefire three years ago, spoke about Oakland’s previous implementation of the Call In program.  OCO convinced OPD to conduct a pilot program that involved the use of “restorative justice.”  This program turned the lives of several young men around, one of whom was introduced at the meeting. But the program did not involve all the elements of Cease Fire, the City did not measure violence reduction and there was no evidence that that program was reducing violence.  So the OPD suspended the program.

Reygan Harmon gave a shorter version of the presentation on the 100 block program she had given two nights previously at Council’s Public Safety Committee meeting.  Most significantly, Ms. Harmon stated that the city is committed to starting a genuine Ceasefire program and recognized the problems with the earlier effort.  The City has obtained a grant to hire a manager, and hopes to have the program in operation by June.   Attendees left the meeting optimistic that a real, effective Operation Cease Fire might be coming, but understanding that the City’s actions would have to be watched closely.

Make Oakland Better Now! has advocated for a real Cease Fire program in Oakland for nearly three years, and has posted information about the program on multiple occasions, most recently here and here.  The results of real Cease Fire can be stunning:  Ten out of eleven cities whose fully implemented programs have been studied experienced dramatic reductions in the targeted and measured outcomes, whether they measured murders, shootings, drug offenses or recidivism:

   Study                                                           MainOutcome                                 

Boston Operation Ceasefire                     -63% youth homicide

Indianapolis  IVRP                                      -­34% total homicide

Stockton  Operation Peacekeeper         -­42% gun homicide

Lowell PSN                                                       -­44% gun assaults

Cincinnati CIRV                           ­                   -36% GMI homicide

Newark Ceasefire                                           NS reduction in gunshot wound incidents

LA Operation Ceasefire                               Sig. short-term reduct.  in  gun crime

Chicago PSN                                                    - ­37% homicide, ­30% recidivism rate

Nashville DMI                                                  - ­56% reduction in drug offenses

Rockford DMI                                     ­               -22% non­violent offenses

Hawaii HOPE                                                       -­26% recidivism rate

On Tuesday, April 24, Police Chief Howard Jordan and Policy Advisor Reygan Harmon reported to Council’s Public Safety Committee on the department’s Strategic Plan and the Mayor’s 100 Block Initiative.  These presentations and a press conference earlier the same day covered a large swath of issues, some of which have been covered in the press here and here.

But there was an extraordinary occurrence at Public Safety that received very little media coverage:  After Chief Jordan and Ms. Harmon briefly touched on Cease Fire, and after MOBN! and one other public speaker urged the City to adopt real Cease Fire this time, here’s what happened:

• Chief Jordan made it clear that he was in regular communication with David Kennedy, author of “Don’t Shoot:  One Man, A Street Fellowship, and the End of Violence in Inner-City America,” and was working closely with Stewart Wakeling, who brought a successful Cease Fire Program to Stockton.  He also stated he was working closely with all of the agencies and community organizations that would have to be part of a successful Cease Fire Program and was determined to implement Cease Fire by June.
• Most of the four committee members sounded as though they had read “Don’t Shoot,” and were adamant that real Cease Fire would need to be implemented.  Indeed, Council Member Nadel expressed surprise that for once, she was in complete agreement with MOBN!  Council Member Reid proposed covering Professor Kennedy’s expenses to come to Oakland (although the committee ultimately decided that was unnecessary since he was already in consultation with Chief Jordan).
• The committee agreed to send the report to full council at tonight’s meeting with a recommendation that the OPD  “work towards implementing a ‘cease fire’ program that closely mirrors the Kennedy model, including ‘the carrot and the stick.’”

Does all of that get us an effective Cease Fire program?  Of course not.  Much remains to be done.  Oaklanders will need to watch the OPD, and the City as a whole, to make sure  they implement the program, that they sustain it, and that they report back on its effectiveness.  Real Cease Fire should effect a dramatic reduction in violence.  Whether and to what extent the reduction occurs should be monitored and publicly reported on.  Finally, the program must be sustained over time;  Cease Fire is a long term change in organizing principals, not a short-term program.  Oaklanders must make sure we do not join the cities who have implemented a successful Cease Fire program, then declared victory, gone home and had it all fall apart.  We must be in this for the long haul.

David Kennedy directly addressed Oakland and Cease Fire in an interview with Tammerlin Drummond in Sunday’s Oakland Tribune.

MOBN! has long advocated that the City institute a Cease Fire program based on the Boston or Cincinnati models.  A similar program — “Operation Peacekeeper” was successfully implemented in Stockton, California in the late 1990′s and early 2000′s,  resulting in major  reductions in homicides and gang and youth-related violence:

So we are most excited that Stewart Wakeling, who oversaw the implementation of Operation Peacekeeper, will be one of the speakers at a meeting this coming Thursday.  While MOBN!, like many groups, has strongly held policy views on what must happen to make a safe city, we also believe that all elements of the community must listen to each other.  So we encourage all Oaklanders of all views to attend the Community Meeting to Stop Oakland’s Violence:

MOBN! has spent a lot of time looking at the experience of both cities.  We weren’t in LA when that city addressed its problems, but we did talk to Todd Foglesong and Christine Cole, who have studied the LA experience, and (along with Christopher Stone), wrote about it in “Policing Los Angeles Under a Consent Decree:  The Dynamics of Change at the LAPD.” And while we only see Oakland’s police department from 20,000 feet up, here’s what we see (the observations here are ours except for those we specifically attribute to Foglesong and Cole):

• The City of Los Angeles made two concurrent commitments.  According to Stone, Foglesong and Cole in their study, “Policing Los Angeles Under a Consent Decree:  The Dynamics of Change at the LAPD,”

Some people believe that restraining a police department in its use of force, raising the standards for police stops, and tightening civilian oversight of police management all inevitably permit crime to rise by loosening the state’s grip on criminals.  The Los Angeles story proves such cynicism wrong.  Indeed, the recent history of policing in Los Angeles demonstrates that respecting rights and reducing crime can be achieved together.  Since 2003, as the police use of force declined, so did crime.  As police-community relations improved, even in the poorest neighborhoods, so did public safety.

Furthermore, say Stone et al.,

No responsible official would pursue the reforms required by this kind of consent decree without attending simultaneously to the problem of crime.  The consent decree itself does not discuss the need to reduce crime in Los Angeles, but no chief of police can afford to reform a department in ways that do not attend to crime problems, even while focusing on relations with residents and legal restraint on the use of force.

• Before Los Angeles agreed to its civil rights consent judgment (which was one of several under which it was operating), it already had an Inspector General – a high-ranking member of the command staff charged with ensuring departmental compliance and audits.  Oakland instituted the same position under the NSA.  But the LAPD Inspector General – and the chief – reported to a civilian police commission.  Oakland’s Inspector General reports to the chief, who reports to the mayor.  Is this chain of command issue important?  It may well be.  But in our discussions with Foglesong and Cole, they cited a more important factor in LA:  the use of the city’s citizen complaint, audit and early warning systems for performance improvement.  In other words, these are not just mechanisms to catch cops who fail to meet department standards; they are tools for improving police officer performance.

• As mentioned in previous posts, we had been very impressed by the amount of polling data measuring community views about police.  Foglesong and Cole told us that this polling was not conducted by the police department or the city.  Rather, it was undertaken by the Los Angeles Times, the Los Angeles Police Foundation and, finally, by Stone, Foglesong and Cole.  Nonetheless, we believe that cities value what they measure and measure what they value.  If Oakland wants to improve community / police relations, it should start measuring those relations.

• As we have shown in earlier posts, the OPD is being hit with “mission creep” by the monitor.  While much of the Negotiated Settlement Agreement requires improved record-keeping of officer judgments, the monitor has recently started using the NSA as a reason to evaluate the judgments themselves.  In our conversation, Foglesong and Cole were not aware of instances where the monitor in LA had gone beyond the letter of the Consent Judgment.

• Los Angeles made a tremendous commitment to the data processing infrastructure necessary to bring modern policing to the department.  In Oakland, on the other hand, OPD continues to have technology failures, the city’s public safety communications systems are still subject to outages, the “IPAS” system – a key element for early warning about officers who need training, counseling, etc. – doesn’t work.  And as of the last monitor’s report, Oakland couldn’t even say how many people the OPD had arrested in the third quarter of 2011.

• Los Angeles had a long-term political commitment to increase the size of its force, unrelated to the Consent Judgment.  So by 2009, Los Angeles had increased its sworn police force to 2.6 officers per 1000 citizens.  At that time, Oakland’s department was at 1.96 officers per 1000 citizens.  And of course, as a result of continuously cancelled academies and police layoffs, we’re now down to 1.63 officers per 1000, or 65% of the Los Angeles level.  In our conversation, Foglesong did not agree Los Angeles’ staffing increase was particularly relevant to compliance.  But we think it is at least worth looking at the question of whether an adequately staffed department in a tough urban environment has a better chance of compliance than a police department that is being intentionally contracted, as Oakland’s is.

• Finally, Los Angeles’ success cannot be considered without addressing the issue of leadership.  As Stone, Foglesong and Cole observe:

[Chief Bratton’s] vision, his experience in other departments, and his confidence that the City and Department can meet the requirements of the consent decree are widely reported as factors driving the success of the LAPD. Second, his concern with professionalism, transparency, performance management in policing, and race relations in the United States are at least as important as the requirements of the consent decree in understanding what motivates the LAPD in its senior ranks.

In other words, the consent judgment alone won’t get the job done.  It takes a combination of leadership, a commitment to modern policing, and an equal commitment to crime reduction, not just by the police department but by the city as a whole.

When Oakland – not just the police department, but the City as a whole — achieves this confluence of city leadership and informed, intelligent commitment to modern, effective policing, we will not only get past the NSA and avoid receivership; we will create a safer city.

The city and department’s path to reform is far from smooth. The city experiences use of force incidents and officer-involved shootings—including the deaths of small children—that shock the community. In a highly publicized incident, the department’s response to a large public demonstration is sharply criticized for widespread abuse of participants’ civil rights. The top level of the department seems to have a revolving door, as key management personnel are constantly being replaced. Five years into the consent judgment, the monitor moves to extend the judgment by two years. The Federal judge is so unhappy with the city’s progress, he denies the motion, and extends the consent judgment for three years.

The consent decree was unpopular with many rank and file officers, who complained that it “de-policed” them. Meanwhile, local pundits argued that the monitors’ demands were unreasonable, that the paperwork requirements were overwhelming and that the City should negotiate an early end to court supervision.

Does any of this sound familiar to Oakland residents? Certainly it does. But this tale is not about Oakland. It’s about Los Angeles and its police department’s nine-year history of operating under a consent judgment with the United States Department of Justice after the department’s Ramparts corruption scandal, Rodney King beating, and actions in response to the week-long riots that followed the acquittals of three out of four officers charged in the King beating. The Consent Judgment had many of the elements of Oakland’s “Negotiated Settlement Agreement.” Like the NSA, it was intended to bring the police department into the twenty-first century. And like Oakland and the NSA, Los Angeles’ consent judgment involved a major struggle for many years.

The story of Los Angeles and its effort at police reform is not a story of despair. It is a story of hope for any troubled police department. Because in 2009, the supervising Federal Judge released the Los Angeles Police Department from court supervision, stating that:

LAPD has become 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.

During the years of court supervision, the number of sworn officers grew by more than 10%. During those same years, violent crime in Los Angeles dropped by 57% and the number of murders dropped by 52%. As points of comparison, changes in the violent crime and number of murders in other cities were as follows:

Violent Crime Rate / Number of Murder  Changes

2002 – 2009

(These numbers are from the FBI’s Annual reports Crime in the United States.  The 2002 numbers for the above cities are available here. The 2009 numbers for these cities are here. The percentage change calculations are MOBN!’s.)

During the years of Federal court supervision, citizen views about the police department improved substantially.  In 2005, 50% of those surveyed said the “services of the police in Los Angeles” were either good or excellent.  In 2009, that figure rose to 60%, while 83% (including 80% of Hispanic and about 70% African American respondents) stated that the LAPD was doing either an excellent or good job. While many respondents seemed to believe there was still room for the department’s improvement in bringing officers to justice while respecting their rights and complying with the law, 90% of respondents in 2009 (85% African American and 89% Hispanic) were very hopeful or somewhat hopeful of the department’s success in the coming years.

But here is something amazing.  At the end of the supervision period, researchers conducted focus groups (comprising mostly men) who had been recently arrested and detained.  Most had a significant history of involuntary contact with police. More than half of these respondents thought the police were doing a good or excellent job.  Between a third and half thought the LAPD had improved in the past two to three years in its professionalism, its community relations, its respect toward residents and the quality of its performance.  While this was not a random sample, and there was no comparison to previous focus groups (because there weren’t any), the result is nonetheless remarkable.

The researchers also asked the detainees some open-ended questions:

. . . . we asked the detainees to tell us the best experience and the worst experience that they had ever had with an LA police officer. The worst experiences included examples of allegedly wrongful arrests, handcuffs being applied too tightly, and many examples of disrespect.  The best experiences were equally telling, if not more so. One immigrant detainee said he had been comforted by his arresting officer when he expressed fear of being deported as a result of his arrest. Another detainee described a sergeant who helped him file a civilian complaint against another officer whom the detainee felt was harassing him for no reason. The research team noticed a pattern of positive experiences that involved police acknowledging a detainee’s feelings or individual circumstances.

The researchers did hear some disturbing comments about officers’ fairness and bias, and found that some 23% of African Americans responded that LA police “almost never” treat all racial and ethnic groups fairly—a disturbing upward tick since 2005.  But compare this with the Oakland Police Department’s survey in January 2010, finding that 31% of the residents of Oakland have a somewhat or very unfavorable view of the department (Slide 15).

The requirements of Oakland’s NSA and the Los Angeles consent judgment were similar. So what accounts for the different  outcomes?   What can Oakland learn from Los Angeles?  We will discuss these questions in our next post.

A chronology of the history of the LAPD’s problems in the years before its Consent Judgment and during its operations under that Consent Judgment is available here.

There is an excellent report by Christopher Stone, Todd Foglesong and Christine M. Cole from the Harvard Kennedy School Program in Criminal Justice Policy and Management, Policing Los Angeles Under a Consent Decree:  The Dynamics of Change at the LAPD, from which we derived a great deal of information contained in this post.

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.

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.

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