Oakland Police and The NSA: What Does The Most Recent Monitor’s Report Really Mean?

Local newspaper coverage of the Monitor’s Ninth Report on Oakland’s ongoing efforts to comply with the Negotiated Settlement Agreement contain multiple reports that compliance “has stagnated,” that the Oakland Police Department is that much closer to receivership, and that compliance efforts are moving backward.  Indeed, some of the Monitor’s language supports this reporting.

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.

Task No. Description Eighth Report Ninth Report
5 Complaint Procedures for IAD (NSA requires IAD to make credibility determinations and use preponderance of evidence standard to resolve). Monitor finds non-compliance because in 3 out of 25 complaints reviewed, he disagreed with the IAD’s credibility assignment and I in 3 out of 25, he disagreed with disposition– neither are elements of the NSA Once again, monitor disagrees with disposition in 3 out of 25 cases reviewed, and therefore found non-compliance.
20 Span of control (continuity of sergeants, and 1 sergeant for 8 field officers) Monitor finds 83% level of compliance instead of the previously agreed to 85% level, and therefore finds non-compliance. OPD changed its system of supervision in Feb, 2012.  Therefore, instead of evaluating OPD’s performance for Oct. – Dec., 2011, Monitor found non-compliance based on the 8th Report findings
24 Use of Force Reporting Policy (Officers to promptly report drawing of firearms and other uses of force) Monitor finds reporting is in compliance, but finds department out of compliance because of disagreement with justification for drawing firearms – not an NSA requirement. Once again, monitor finds reporting in compliance.  But in 15% of instances reviewed, disagrees with officer action, so finds non-compliance.
25 Use of Force Investigations and Report Responsibility (Requirements and timelines for investigating and documenting use of force by officers) Per the monitor:  “Task 25.4 requires that the investigations include required recommendations (compliancestandard:  90%)”  However, rather than evaluating whether the content met the requirements of the investigations, the Monitor evaluated whether he agreed with the use of force.  In 12% of the cases, he did not, so he found OPD out of compliance. The report is very confusing about 25.2, timeliness of investigations, but finds OPD out of compliance.Once again, the Monitor reviews whether he agrees with use of force, and finds noncompliance because he does not
26 Use of Force Review Board (Requires FRB meet deadlines for conducting review of level 2 (the second most serious force level) In compliance Monitor finds non-compliance because of one late review.  Monitor later received information that review was timely, but chose to disregard that information and found non-compliance based on initial information.
30 Firearms Review Board (Requires review board to be convened within 45 days of receipt of reports from IAD) While board was timely convened for the two instances of firearms use, the Monitor observed one hearing in Q4, and “found that the process that the board used to arrive at a finding was problematic,” so found non-compliance even though the reporting period was Q3.. Further information on the Q4 “problematic” hearing:  board found insufficient information and asked for more from IAD, but still found officer in compliance, which Monitor found “deeply troubling” and not in compliance.
34 Vehicle Stops, Field Investigations, and Detentions (Officers to record each stop they make and articulate reason for the stop) There is a menu of choices for reasons for stop.  Per 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.”  In other words, the form apparently does not allow the officer to a articulate the reason. Monitor says exactly the same thing using the same language.  Query:  how did the OPD end up using an inadequate electronic form?  Was this run by or approved by the Monitor?  By the plaintiff attorneys?
40, 41 Personnel Assessment System (IT system to give early warning on officers in need of monitoring, counseling, etc.) Department was unable to determine number of arrests, so PAS was not in compliance. Data problems fixed after reporting period, but still out of compliance in Q4 reporting period.
45 Consistency of Discipline Policy (OPD to revise its policies to ensure fair and consistent discipline. Monitor found non-compliance based on disagreement with discipline in four cases. Monitor finds one case he disagrees with, but finds compliance within the 95% standard

Make Oakland Better Now!

OakTalk Here is the blog of Make Oakland Better Now!, an Oakland community grassroots group of a grass-roots group of voters, volunteers, and policy advocates committed to improving the City of Oakland by focusing on public safety, public works, and responsible budgets. Founded in 2003, we’ve researched, lobbied, and successfully campaigned for a number of new, impactful policies, including the city’s Rainy Day Fund, Measure Z and Operation Ceasefire.

This Post Has 6 Comments

  1. Kodi

    This is an excellent analysis of the Monitor’s Ninth Report; thanks for taking the time to do it. I am astounded at the lack of response here but then, I don’t do Facebook so maybe that is where all the action is — or it could be total abject discouragement and apathy on the part of all as this NSA insanity drags on and on. It is clear from your summaries that the Monitor continues to overstep his/her authority and has expanded the charge far beyond what is required and what was agreed to. WHO is overseeing the Monitor? Is it the Federal Judge (who shall go un-named) from the 9th Circuit? In that instance, he is not doing HIS job! So who oversees him? Could it be us? This is not just a nonsensical bureaucratic game as might be inferred from above. It is a serious matter that is currently interfering with OPD and its ability to focus on law enforcement that in turn serves the safety of citizens — many of whom live in terror for their lives in this city and it is also an expense we cannot afford. My question is, WHAT can citizens do to move this along and end it? It is clear that the ineffectual Mayor, City Manager, and City Council are quite satisfied to let this run on for any number of years with the Monitor clearly running wildly rough-shod over the process. Really! What good is this NSA drivel doing the average law-abiding citizen in the city? The majority’s civil rights are being violated daily by the scourge of criminality in this city! Who is looking out for THAT?

  2. Shannon Phillips

    I wanted to agree with the comment above. The work you are doing here is amazing. And I’d like to know how I can best support future in-depth journalism of this type. I don’t see an obvious “donation” button — are you set up for subscriptions or low-level donations?

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