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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.