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Mayor Libby Schaaf says she supports freedom of expression and the right of Oaklanders and Oakland businesses to be free of violence caused by individuals who embed themselves in otherwise peaceful demonstrations. While we support her efforts to change strategies to eliminate violence at demonstrations, Make Oakland Better Now! encourages her to approach this somewhat differently.

Both  #BlackLivesMatter and #SayHerName are important local and national movements. Our communitymleaders play a critical role in affirming to the nation that we will not tolerate the injustices we have seen in Ferguson, in Cleveland, in New York and throughout the country, including, much too recently, in Oakland.

Having said that, we are proud of what OPD has done in the past two years to improve its relationship with the community, and most especially with people of color. Far too little of this change has been acknowledged in our public dialogue. It is no accident that OPD has experienced only one officer-involved shooting (resulting in no injury) in the past two years, and that no OPD gunfire has resulted in death for more than three years. Indeed, OPD, working with the faith-based community and outside consultants, leads the country in police legitimacy and procedural justice training. While there is much more to do, no fair-minded person can ignore these recent improvements.

It is now time for Oakland to lead the country in developing a model that balances protection of First Amendment rights for demonstrators with protecting the rights of adjacent business owners.   

Oakland’s Crowd Management Policy

In 2004, the city of Oakland negotiated an end to two lawsuits with some individuals and the Longshore and Warehouse Union, and in the course of this produced a very detailed set of crowd management and crowd control policies as part of the settlement. As with the NSA, the settlement in this case (the “Coles” case) took the form of a stipulated judgment, signed by U.S. District Judge Thelton Henderson. The Coles settlement terms were reiterated, and the judgment requiring adherence to the City’s crowd management and crowd control policy restated, in 2013 when the City settled Spalding v. City of Oakland. .

The stipulated policy contains many provisions that few would disagree with.  For example, under the heading “First Amendment Activities:”

All persons have the right to march, demonstrate, protest, rally, or perform other activities protected by the First Amendment of the United States Constitution and the California Constitution.

The government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.

But the policy also contains provisions concerning “policing a crowd” that many may find surprising.  For one:

Regardless of whether a parade permit has been obtained, OPD officers will try to facilitate demonstrations that may temporarily block traffic and/or otherwise use public streets subject to time, place, and manner of circumstances, by regulating and/or rerouting traffic as much as practical.

(Emphasis added.)

And, in the section on unlawful assemblies:

The mere failure to obtain a permit, such as a parade permit or sound permit, is not a sufficient basis to declare an unlawful assembly. There must be criminal activity or a clear and present danger of imminent violence. . . .

The police may not disperse a demonstration or crowd event before demonstrators have acted illegally or before the demonstrators pose a clear and present danger of imminent violence.

(Emphasis added.)

As a practical matter, the judgment / policy allows demonstrations without permits of any kind. And it prohibits declaring an assembly to be unlawful without “criminal activity or a clear and present danger of imminent violence.”

The policy requires that OPD make every effort to meet in advance with event sponsors and group leaders:

When planning for and responding to demonstrations, crowd events, and civil disobedience situations, Incident Commanders assigned to these incidents shall facilitate the involvement of stakeholders. If and when communication is established, personnel shall make every effort to identify representatives or leaders of the event and identify a primary police liaison. The primary police liaison should be requested to be in continuous contact with an assigned police representative, preferably the Incident Commander or someone with continuous access to the Incident Commander.

But there is no reciprocal requirement for demonstration organizers:

A group’s failure to respond to OPD attempts to establish communication and cooperation prior to a demonstration shall not mitigate OPD’s efforts to establish liaison and positive communication with the group as early as possible at the scene of the demonstration or crowd event.

The Crowd Management Policy is Harmful to Oakland

As we discuss below, the current policy is harmful to our city, and because of this the Crowd Management Policy should be modified minimally, to assure a reasonable balance protecting First Amendment rights for peaceful protestors, as well as the property rights of adjacent businesses, and public safety concerns, most importantly, of Oakland residents throughout the City, particularly those in the highest crime areas. Here is how the current policy is hurting our City:

• Despite what some demonstrators may wish, it is not possible to have a large demonstration in a public place without a police presence – indeed, failing to provide police at a demonstration would violate the Court-ordered policy. And for the last several years it has been increasingly common that night time demonstrations attract anarchists and other vandals whose interest is in promoting chaos and the destruction of property—and occasionally violence against some in their path; these individuals are opportunists seeking to take advantage of the situation presented by the occasion of a demonstration. They evidence little concern in the particular cause being demonstrated for by the majority of participants. In a police department that continues to be understaffed, the need for increased police presence at any time or place selected by demonstrators without a requirement of notice reduces patrol staffing in East and West Oakland by half, hampers sideshow prevention, draws away the few investigative officers in our police department, and reduces or eliminates the availability of officers for the City’s Operation Ceasefire strategy – a strategy that exists to save lives.

• The high level of overtime required to patrol all demonstrations costs millions of dollars per year, and contributes to making exhausted officers who are far more at risk for making mistakes, thus creating a public safety risk. This demand for overtime also contributes to excess officer attrition, which alone costs Oakland between $2 and $3 million per year, and leaves us without the services of veteran officers.

• Finally, demonstrations designed to shut down our City Council damage the democratic process for all of us. The deliberative process of local government belongs to all Oaklanders, not just those who are prepared to storm the dais and shout the loudest.

The Crowd Management Policy goes far beyond Constitutional requirements. It effectively eliminates the requirement of a permit, and therefore, it prevents OPD from declaring an unpermitted assembly to be unlawful. Nothing in our Constitution forbids a permitting process that does not interfere with the right of free expression and simply gives the City a responsible contact with the demonstrators. To our knowledge, no other City is subject to either an ordinance or court order that eliminates permitting requirements altogether.

The judgments in both the Coles case and the Spalding case provide for a “meet and confer” process before the Oakland changes its crowd management and control policies. We believe that the City should go attempt the meet and confer process, and if that does not succeed, go to the Federal Court and seek three simple modifications to the policy / judgments. These will be contested, but they are important. Oakland should be allowed to require permits for demonstrations held after dark, to be issued within a day or two, without onerous conditions, and without charge. The permit should require identification of one or more persons assuming responsibility for engaging in communications with either the OPD or a designee of the City Administrator (the applicant’s choice).

Finally, the policy should follow guidelines for reasonable time, manner and place restrictions already approved by the United States Supreme Court in numerous cases, including Grayned v. City of Rockford and Clark v CCNV. Following the guidelines of the Court, Oakland must assure that its permits are content-neutral (meaning they are not crafted for the purpose of censoring speech or the particular message of a demonstration); that these restrictions are narrowly tailored to advance a compelling and legitimate interest of the city government; and that such a permit still leaves ample opportunity for the demonstration message to be made, even with modest restrictions. In this spirit, a permitting process that applies equally to any group requesting a demonstration at night time is not drawn to censor a specific message—and is thus content neutral. Equally, a compelling and legitimate interest of the city includes public safety for those threatened when peaceful demonstrations become violent with the activity of opportunistic anarchists, as well the competing need for police resources in other parts of the city where crime is an ongoing challenge. Finally, a permit process that requires that demonstrations be made in daylight—and even on a sidewalk—still leaves open ample opportunity for the demonstration to occur and its message to be heard.

Make Oakland Better Now strongly urges Mayor Schaff to follow these recommendations and seek to modify our Crowd Management and Control Policy.