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Michael L. Rains, SBN 91013 Rockne A. Lucia, Jr., SBN 109349 Peter A. Hoffmann, SBN 254354 RAINS LUCIA STERN, PC 2300 Contra Costa Boulevard, Suite 500 Pleasant Hill, CA 94523 Telephone: 925.609.1699 Facsimile: 925.609.1690 Email: mrains@rlslawyers.com rlucia@rlslawyers.com phoffmann@rlslawyers.com Attorneys for Applicant/Intervenor OAKLAND POLICE OFFICERS’ ASSOCIATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DELPHINE ALLEN, et al. Plaintiffs, v. CITY OAKLAND, et al. Defendants. OAKLAND POLICE OFFICERS’ ASSOCIATION, Applicant for Intervention. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) MASTER CASE NO. C-00-4599 TEH RESPONSE BY OAKLAND POLICE OFFICERS’ ASSOCIATION TO PLAINTIFFS’ NOTICE OF MOTION FOR APPOINTMENT OF A RECEIVER Date: Time: Courtroom: Judge: December 13, 2012 10:00 a.m. 2, 17th Floor Hon. Thelton E. Henderson

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TABLE OF CONTENTS INTRODUCTION........................................................................................................ 1 A. THE OPOA AND ITS INDIVIDUAL MEMBERS HAVE ALWAYS SUPPORTED AND CONTINUE TO SUPPORT REFORMS OF THE OPD WHICH INCLUDE INCREASED SUPERVISION OF PATROL OFFICERS, BETTER AND MORE TRAINING FOR OFFICERS AT EVERY LEVEL OF THE ORGANIZATION, AN EFFECTIVE SYSTEM TO DETECT OFFICERS WHO MAY BE AT RISK FOR INAPPROPRIATE BEHAVIOR, AND IMPLEMENTATION OF AN INTERNAL AFFAIRS INVESTIGATION PROCESS WHICH IS PROMPT, THOROUGH AND FAIR AND BASED ON PROPER EVIDENTIARY STANDARDS................................ 4 DR SCHWARTZ WAS RIGHT IN HIS OBSERVATION THAT THE OLIVER CASE, ALONG WITH THE RIDERS CASE, PROVIDE THE APPROPRIATE BOOK-ENDS FOR THE HISTORY OF OPD SINCE THE MILLENNIUM (SWARTZ’S DECLARATION, P. 6). ......................................................................................... 7 DR. SCHWARTZ FOUND THAT “OCCUPY OAKLAND WAS A GAME CHANGER. IT PRESENTED A CLEAR INESCAPABLE PICTURE AT OPD COMPLIANCE WITH THE NSA WAS ILLUSORY, (SCHWARTZ DECLARATION, P. 18). DESPITE ACKNOWLEDGMENT BY THE CITY AND OPD MANAGEMENT THAT “SYSTEMIC ISSUES” CAUSED A FLAWED OPD RESPONSE, NO ONE ABOVE THE RANK OF SERGEANT WAS DETERMINED TO BE RESPONSIBLE FOR THE RESPONSE. ........................................................ 9 THE STATISTICAL DATA RELIED UPON BY DR. SCHWARTZ DOES NOT SUPPORT A DETERMINATION THAT OPD OFFICERS ARE ENGAGED IN RACIAL PROFILING WITH REGARD TO STOPS, SEARCHES, OR ARRESTS. ...... 12 THE COURT SHOULD VIEW STATISTICAL COMPARISONS BY THE PLAINTIFFS AND THEIR EXPERT BETWEEN A DETROIT POLICE DEPARTMENT AND THE OAKLAND POLICE DEPARTMENT WITH SKEPTICISM. ...................................................................................................... 18 THE FREQUENCY OF POLICE SHOOTINGS IN DETROIT AS COMPARED TO OPD IS STARTLING, AND UNDERMINES THE DETROIT DATA CONCERNING THE POINTING OF WEAPONS EVEN MORE. ...................................................... 20 AS OBSERVED BY DR. SCHWARTZ, CITY AND OPD MANAGEMENT HAVE MISSED THE MARK BY FAILING TO FIX BROAD DEPARTMENTAL AREAS OF CONCERN UNDERLYING NSA TASKS WHILE FOSTERING A DISHONEST AND MEAN-SPIRITED INTERNAL AFFAIRS INVESTIGATIONS PROCESS. .................. 22 IN THE EVENT THE COURT APPOINTS A RECEIVER, THE OPOA REQUESTS THAT THE RECEIVER’S AUTHORITY WILL NOT INTRUDE OR INFRINGE

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UPON RIGHTS AFFORDED OPOA MEMBERS IN THE EXISTING OR FUTURE COLLECTIVE BARGAINING AGREEMENTS, OR PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS OF OPOA MEMBERS IN DISCIPLINARY INVESTIGATIONS AND PROCEEDINGS. ...................................... 24

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TABLE OF AUTHORITIES

Garrity v. New Jersey, (1967) 385 U.S. 493................................................................................. 4 Pereyda v. State Personnel Board (1971) 15 Cal.App.3d 47 ....................................................... 5 Scott v. Henrich, (Fed. Cir. 1994) 39 Fed.3d 1912 ..................................................................... 22

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I. INTRODUCTION Although it may come as a surprise to the Court and Counsel, the Oakland Police Officers’ Association (hereinafter “OPOA”) does not dispute or disagree with many points raised by the Plaintiffs in their Motion for Appointment of a Receiver (hereinafter “Motion”) or by Dr. Schwartz in his Declaration in Support of the Plaintiffs’ Motion. The OPOA believes that some of the criticisms leveled at the Oakland Police Department or its individual employees (including members of the OPOA) particularly those related to alleged racial profiling, use of force and pointing weapons require additional clarification or context to be fully understood or appreciated, and there are issues which the OPOA believes are not fairly or accurately portrayed to this Court by the Plaintiffs in their Motion. Those issues will be discussed separately in this response. Although the various parties to this Motion will perhaps disagree more than they agree on many issues, two issues on which there will likely be universal agreement are (1) the OPD is the first municipal police agency in the history of the State of California to face the possibility a Court-imposed Receivership, and (2) neither the current Collective Bargaining Agreement between the City of Oakland and the OPOA nor OPOA’s enforcement of due process rights of its members have adversely impacted OPD’s ability to comply with the Negotiated Settlement Agreement (NSA) (Exhibit 1 to Plaintiffs’ Motion for Appointment of a Receiver) or the Amended Memorandum of Understanding (AMOU) (Exhibit 2 to Plaintiffs’ Motion for Appointment of a Receiver). This Motion by the Plaintiffs, set to be heard on December 13, 2012, will occur more than 12 years following filing of criminal charges against four Oakland police officers, and more than nine years following the Negotiated Settlement Agreement between the City of Oakland and the Plaintiffs’ lawyers to reform the organization and management of the OPD, gauged at least in part through the successful compliance with specifically described tasks. Plaintiffs, in their Motion, discussed a Status Conference held by the Court on February 14, 2005 during which the Court stated that it was “heartened” by representations made by City officials and the City Council about “progress” toward compliance with the NSA tasks, but
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expressed hope that “none of this was to shine the judge on…” (Plaintiffs’ Motion, p. 11:1012:13) Plaintiffs insist that in the intervening seven years since that Status Conference, the OPD and City have continued to “shine the judge on” (Plaintiffs’ Motion, p. 12:14-15). From the standpoint of the OPOA, City leadership and OPD leadership have, for more than 12 years, “shined on” both the Court and the public about the origin of the Riders in the first place, because of what the Plaintiffs recognize as a willingness to “elevate political cover above fostering leadership…” (Plaintiffs’ Motion, p. 5:18-22). Indeed, as described in the Declaration of Michael L. Rains, the very genesis of the “Riders” case was the unwillingness of then Oakland Mayor Brown and Police Chief Word to heed the advice by renowned Police Expert and City-retained Consultant Bill Bratton to avoid implementation of any crime-fighting program which required officers to take a “zero tolerance” approach to suspected drug dealing and drug dealers. Instead, Mayor Brown and Chief Word instituted a “zero tolerance” program called “Project SANE” with a goal to reduce crime in Oakland in a single year to an unprecedented 20%. Project SANE placed many OPOA members in the crosshairs of criminal allegations and civil lawsuits, but when the allegations surfaced concerning only four officers, those who were uniquely responsible for the “leadership decision” engaged in “political cover” and were nowhere to be found. Rather than telling the public the truth about involvement of many OPD officers assigned by the Mayor and OPD “Leadership” to participate in Project SANE, the City Attorney, upon negotiating the NSA, claimed in written press releases and verbal statements to the media that the 119 plaintiffs had been victimized by only four Oakland police officers known as “The Riders” (Rains Declaration, Exhibit C). The “political cover” and chronic lack of ethical leadership which launched the OPD, the OPOA, and its individual members into the “Riders scandal” to begin with, and “a (subsequent) sorry trail of broken promises” (Plaintiffs’ Motion, p. 45) to the Court and the public, appears to have cloned itself for well over a decade. As a result, well over $7,000,000.00 has been spent by the City of Oakland to provide oversight to the OPD and to ostensibly bring the OPD into compliance with NSA-related tasks.
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Yet, if the Plaintiffs’ Motion and Mr. Schwartz’s Declaration are seriously considered, the delivery of police services to the constituents in Oakland has not improved, relations between the OPD and the community are more negative than ever (Schwartz Declaration, p. 13) and those who live or work in Oakland have never been as likely to become victims of violent crime as they are today. Just as Plaintiffs’ counsel insists that the City and the OPD have “shined on” the Court (and presumably the public as well) about making genuine reform in the department, the OPOA, as will be discussed below, believes that individual members of the OPOA have, in many instances, become the scapegoats of chronic “political cover” politics by those at the highest level. As Dr. Schwartz observed, “organizations cannot be changed by holding only line staff accountable.” (See Schwartz Declaration, p. 13.) Yet, from the inception of the Riders case more than a decade ago until the present day, that appears to have been the overriding theme and approach of City and OPD management. The OPOA as an employee organization, even though it had no role in negotiating the NSA, understands and embraces the overriding objective of the NSA to “…promote police integrity and prevent conduct that deprives persons of the rights, privileges and immunities secured or protected by the Constitution or laws of the United States.” The Plaintiffs portray, on the part of OPD and City Leadership, a sordid “portrait of broken promises” by several successive administrations to achieve compliance with the NSA. The OPOA has largely watched and remained mute from the sidelines while City and OPD leaders have engaged this Court and the public in painting this grotesque portrait through a series of misrepresentations about how they are “leading” the OPD into a new era of NSA compliance and excellence. But while specific NSA tasks were not being met, and police response times to calls for service were skyrocketing, and violent crime took an increasingly tragic toll on the lives of young, old, and helpless bystanders, OPD leadership fell back on demonstrating its “leadership prowess” by handing down heavy-handed abusive discipline to those largely occupying the rank of Sergeant and below, and gleefully announced its efforts to
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the public, while ignoring the reality that the discipline would be appealed to a neutral arbitrator, with history being repeated, and the vast majority of disciplinary cases being overturned. From the perspective of the OPOA, the City and OPD have “shined on” the Court, the public, and members of the OPOA by imposing undeserved discipline in contravention of their constitutional rights to procedural and substantive due process. While Dr. Schwartz has recognized that “organizations cannot be changed by holding only line staff accountable,” true accountability of rank and file police officers is not achieved when legally unsupportable discipline is accorded hallmark status as a sign of supposed reform, and is the centerpiece of an agency’s “show and tell” campaign to the Court and the public. Dr. Schwartz’s conclusion that “the OPD is not a learning organization” (Schwartz Declaration, p. 36) is borne out by its chronic refusal or inability to comply for over a decade with a U.S. Supreme Court pronouncement delivered by Justice Douglas more than 40 years ago: “We conclude that policemen, like teachers and lawyers, are not relegated to a watereddown version of constitutional rights.” Garrity v. New Jersey, (1967) 385 U.S. 493, 500; 87 S.Ct. 616, 620; 17 L.Ed.2d 562. A. THE OPOA AND ITS INDIVIDUAL MEMBERS HAVE ALWAYS SUPPORTED AND CONTINUE TO SUPPORT REFORMS OF THE OPD WHICH INCLUDE INCREASED SUPERVISION OF PATROL OFFICERS, BETTER AND MORE TRAINING FOR OFFICERS AT EVERY LEVEL OF THE ORGANIZATION, AN EFFECTIVE SYSTEM TO DETECT OFFICERS WHO MAY BE AT RISK FOR INAPPROPRIATE BEHAVIOR, AND IMPLEMENTATION OF AN INTERNAL AFFAIRS INVESTIGATION PROCESS WHICH IS PROMPT, THOROUGH AND FAIR AND BASED ON PROPER EVIDENTIARY STANDARDS The NSA required an officer to supervisor a ratio of 8:1, which was a vast improvement on the level of supervision afforded to OPD patrol officers in 2000, when the Riders case surfaced. The OPOA has embraced this ratio, which imposes closer and better supervision of patrol officers and a more careful report review process. The reduction in staffing at the OPD in the last few years has created challenges across the board for supervisors and patrol officers alike, but any model which provides increased levels of supervision and which allows for greater interaction between supervisors and line officers is likely to produce better policing at
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the line level. Additionally, the OPOA believes that there has historically been a great deficiency in training throughout the organization, but particularly at the highest levels. The OPOA recognizes, as did the Plaintiffs’ expert, Dr. Schwartz and even Chief Jordan, that “…the top people in OPD have not been trained adequately and have been brought up in a department that is not a learning organization.” (See Schwartz Declaration, p. 36.) Chief Frazier has testified that the leadership of OPD at the rank of lieutenant and above has not been well trained and to a large extent are ill-equipped to do the tasks that they are asked to do. He does not believe that the captains and deputy chiefs have been adequately trained for their positions (Frazier Deposition, p. 46.) Chief Frazier also stated that the Assistant Chief appointed by Chief Jordan was not adequately trained and that the Head of the Internal Affairs Division at the time of the Occupy Oakland Protest was not adequately trained (Frazier Deposition, pp. 46-48). Regrettably, if those at the highest level of the organization have suffered from a malaise of training, is it realistic to expect they will place a premium on training those below them? Three of the major events which are discussed at length by the Plaintiffs and their expert in this Motion—the Riders case, the “Oliver” (search warrant) case, which surfaced in 2008, and the OPD response to the Occupy Protest on October 25, 2011 which is the subject of the Frazier Report—all resulted from, according to the experts, training deficiencies. A further discussion of both the Oliver search warrant case and the Occupy Protest response by the OPD appears below. The OPOA agrees that effective Internal Affairs investigations require investigators to consider all relevant evidence and to ensure that the outcomes of an investigation are based upon proper evidentiary standards (Plaintiffs’ Motion, p. 3:15-16). In California, the courts have held that misconduct of an officer must be established by proof and not mere “suspicion.” Pereyda v. State Personnel Board (1971) 15 Cal.App.3d 47, 52-53. The OPOA also recognizes that Chief Frazier, in his deposition, stated that he did not believe IAD Investigators were willing to challenge inconsistencies of officers in Internal Affairs interviews (Frazier Deposition pp. 96-99). The OPOA believes that the Internal Affairs
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Investigators should be challenging inconsistencies in statements made by every person who is interviewed in connection with a complaint, including the complaining party, any witnesses identified, and of course, the subject officer(s). If anything, there has been a great tendency by OPD IAD Investigators to give great latitude and deference to the complaining parties and their witnesses for fear of being accused of bias or attempting to cover up police misconduct. The OPOA recognizes that the Internal Affairs investigation and adjudication process can be manipulated to achieve a certain result, fully aware that the IAD investigation of the “Riders” was a clearly fraudulent effort to fasten blame on police officers who were simply carrying out the mandate of the then mayor and police chief and receiving repeated “pats on the back” until the activities of OPD officers participating in Project SANE were called into question by Rookie Police Officer Batt. The goal of any contemporary police agency should be to establish an Internal Affairs function which promptly, thoroughly and objectively investigates complaints of misconduct. Such a process is most likely to instill confidence in the integrity of the police department by constituents in the community and by the officers themselves. Unfortunately, it appears that the current Executive Management Team do not have the desire, ability or capacity to fairly and objectively consider complaints. Distrust of the objectivity of the process results in constant requests for representation by counsel at the initial investigatory stage, and later if discipline is recommended. The reality of heavy-handed discipline resulting from the current IAD process is demonstrated in the statistical results of disciplinary appeals in the last six years. Based upon records maintained by counsel for the OPOA, there have been eleven separate challenges of employment terminations of OPOA members, and six challenges of lesser forms of discipline. Independent, objective arbitrators have reinstated OPOA members in seven of the eleven termination arbitrations, while the discipline of OPOA members in the six other cases has either been rescinded altogether or reduced. The OPOA has also constantly supported an effective Early Intervention Program to identify “problem officers” so that remedial action can be taken. Officers are not immune to
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stress associated with both professional and personal issues which can manifest itself in the performance of official duties. Until now, Department Executive Management has demonstrated a strong commitment and desire to discipline officers for alleged wrongdoing, but has not devoted the same level of interest or commitment to identifying and helping officers who may be prone to misbehavior because of personal or professional difficulties. A very clear example of this issue recently emerged when an officer, who was widely known to be experiencing a difficult divorce and financial difficulties, was working constant overtime shifts and sleeping between those shifts in a “quiet room” at the OPD. After this had gone on for some time, he was arrested for misdemeanor drunk driving and the Department promptly opened an internal investigation for the off-duty misconduct but did not either restrict his ability to continue to work substantial overtime or require any type of therapeutic intervention. Currently he faces the possibility of employment termination due to a subsequent allegation of excessive use of force. B. DR. SCHWARTZ WAS RIGHT IN HIS OBSERVATION THAT THE OLIVER CASE, ALONG WITH THE RIDERS CASE, PROVIDE THE APPROPRIATE BOOK-ENDS FOR THE HISTORY OF OPD SINCE THE MILLENNIUM (SCHWARTZ DECLARATION, P. 6) As indicated in the Declaration of Michael L. Rains, the “Riders” case first surfaced in July 2000, when former Rookie Police Officer Keith Batt alleged that he had worked with a group of officers in West Oakland who were targeting drug “hotspots.” The criminal charges filed against the “Riders” in Alameda County Superior Court related to events which occurred only over a period of several weeks, but the testimony at the criminal trial of the “Riders” was graphic and clear: Both the officers on trial and Rookie Officer Batt (and other rookies) were essentially thrown into undercover vehicles while wearing uniforms and told that they had to drive to drug hotspots, take “immediate enforcement action,” and show “zero tolerance” to suspected drug dealers. (See Rains Declaration, Exhibit B.) Neither the officers on trial, nor Officer Batt, for that matter, had any real training or supervisory direction on how to accomplish this—it was simply a management edict for the officers to “get the drug dealers” and make Police and City Management look good by reducing crime in Oakland by 20%. When the allegations against the Riders surfaced, City and Police
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Management officials quickly dispensed with Project SANE and claimed that the misconduct reported by Officer Batt involved four “problem” officers who were essentially “operating under the radar screen.” To use Dr. Schwartz’s language, “fast-forward to the Oliver case in which several OPD officers were found to have been lying on large numbers of affidavits or search warrants over a period of years” (Schwartz Declaration, p. 6). Much like the Riders case, the Oliver case was the result of OPD management encouraging officers to engage in proactive activity to identify and arrest suspected drug dealers but providing no meaningful training on how to accomplish that objective. The investigation disclosed that officers in a particular unit were pressured to prepare search warrants of suspected drug-dealing residences. The “training” received by the officers consisted of talking to other officers who had written search warrants and obtaining sample affidavits as templates to use themselves. One of the major issues in the case was whether drugs purchased from suspected drug dealers by undercover officers had been determined by a “presumptive” test to be “positive.” It was determined that many officers did not even understand what a “presumptive” drug test was, nor crime laboratory procedures concerning the positive identification of drugs. The case involved approximately nineteen separate employees, and while publicity surfaced concerning alleged widespread falsification of affidavits, the only response from then Assistant Chief Jordan was that what the officers did amounted to “procedural issues.” Chief Tucker stated that the officers were being “retrained” (Rains Declaration, Exhibit D). Of the nineteen employees initially investigated, twelve initially faced proposed discipline, with eleven of those employees initially facing termination. At the request of the OPOA, the City appointed an “outside” hearing officer to review the evidence in this case and make a final recommendation to the City. The hearing officer selected had served as both a Police Chief and City Manager in other agencies, and had no ties whatsoever to the OPOA or its legal counsel. When the independent hearing officer was provided a response to the various disciplinary recommendations by the employees and their counsel, he set aside seven of the eleven terminations and set aside another case involving a 10-day suspension. Four
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termination cases were later arbitrated with the result being that one of the terminated employees was reinstated and three terminations were upheld (Rains Declaration, Exhibit ¶34). Aside from the fact that only three out of twelve disciplinary actions recommended by the Police Department in the Oliver case survived either independent review by an outside hearing officer or arbitration, the Oliver case was notable because OPD Executive Management, much like the management team in the Riders case, ignored and attempted to disavow systemic issues associated with demands for crime reduction without providing employees adequate training. Dr. Schwartz summed it up appropriately in his Declaration at p. 6: Still other officers were operating in good faith but were so poorly trained that they used other warrants as templates and thereafter swore to Judges that drugs were properly tested when they were not. C. DR. SCHWARTZ FOUND THAT “OCCUPY OAKLAND WAS A GAME CHANGER. IT PRESENTED A CLEAR INESCAPABLE PICTURE THAT OPD COMPLIANCE WITH THE NSA WAS ILLUSORY” (SCHWARTZ DECLARATION, P. 18). DESPITE ACKNOWLEDGMENT BY THE CITY AND OPD MANAGEMENT THAT “SYSTEMIC ISSUES” CAUSED A FLAWED OPD RESPONSE, NO ONE ABOVE THE RANK OF SERGEANT WAS DETERMINED TO BE RESPONSIBLE FOR THE RESPONSE Dr. Schwartz discusses the Frazier Report and OPD’s response to Occupy Oakland on pp. 18-20 of his Declaration. The Frazier Report examined the OPD response to the eviction of Occupy protestors which started during the early morning hours of October 25, 2011 and resulted in widespread vandalism and clashes with the police late the same evening. The Frazier Report is an 82-page document with appendices which contains a series of findings and recommendations. Clearly, the bulk of focus and criticism concerning the OPD response on October 25th is directed at OPD Executive Management for planning deficiencies, leadership failures at the highest levels, and implementation of policies and practices which do not meet current standards or preferred police practices in contemporary crowd management intervention, controls strategies, and tactical practices. A few of the Frazier Report observations are noted below:   Crowd control tactics used by the OPD are outdated, dangerous and ineffective (p. 17). After considerable interaction with the command and executive levels of OPD, we find that the general level of experience and the accompanying formal training and

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leadership, management, and specialized skills requires emphasis and improvement (p. 17). The most important factors which result in “flawed responses” by the OPD on October 25th were the results of command turnover and historical failure to develop leadership through formal training and other methods, and significant staffing cuts in recent years (p. 18). Selection of the Commanding Officer of the Internal Affairs Division to serve as the watch operations chief shortly before the event occurred indicates the lack of executive oversight of the plan (p. 31). The Commanding Officer of Internal Affairs should not have been utilized as operations chief… (p. 31). The B watch Operations Section Chief did not have adequate OPD resources to police F.O.P. Park, with only 38 officers (pp. 32-33). The types of chemical agents, deployment methods as well as the types of less lethal impact munitions utilized by OPD Tango Team personnel during crowd control situations are obsolete (p. 37). …the general level of experience in the accompanying formal training and leadership, management and specialized skills is low in the command and executive leadership levels of OPD (p. 77). The primary plans chief was the A-Watch Incident Commander. He had significant input into the … eviction strategies and staffing assignments. This planning process failed to foresee the repercussions of the morning eviction action as it related to the subsequent Occupy Oakland reaction that evening” (p. 81). There was a failure of A and B Incident Commanders to jointly confer and coordinate a balanced OPD staffing and leadership plan throughout both operational periods (p. 81). The late assignment of the IAD Commander to the B Watch as Operations Section was improper (p. 81). OPD Command and Executive Personnel Lack an Understanding of Modern Crowd Management, Intervention and Training Practices widely used in other large police departments (p. 82). In addition to the above statements appearing in the Frazier Report, there were twenty seven specific findings by Chief Frazier that current OPD policies and practices (enacted by OPD Executive Management) did not meet current professional standards and preferred practices of police agencies. On June 14, 2012 the City of Oakland issued a Press Release in response to the Frazier Report which admitted to “systemic shortcomings … policy and practice deficiencies surrounding leadership, accountability, communication and collaboration, technical expertise
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and organizational development…” Just four months later, the Police Chief and City Administrator stood side-by-side at a press conference on October 12, 2012 to announce the formal discipline of 41 police officers and three non-disciplinary instances of counseling and training. A copy of the City’s four-page summary of the actions taken is attached to the Rains Declaration as Exhibit E. A copy of the article written by reporter Paul Rosynsky describing a release of this information by Chief Jordan and the response by OPOA President Barry Donelan is attached to the Rains Declaration as Exhibit F. Significantly, none of the disciplinary actions sought by the Police Chief relate to any of the numerous executive level management failures identified and discussed in the Frazier Report. The Occupy Incident resulted in the demotion of one probationary police lieutenant and there is no proposed discipline against any other OPD officer higher than the rank of Police Sergeant. Contrary to the Declaration of Dr. Schwartz, the OPD’s public response to the condemnation in the Frazier Report and the ensuing complaints is really neither a “game changer” or even a “new game”; it is simply another example of what happened in the Riders case in 2000 and what happened in the Oliver case in 2008—a failure of leadership to accept responsibility and to be accountable for its own actions – and another example of “…willingness to elevate political cover over fostering leadership.” (Plaintiffs’ Motion, p. 5). Contrast the Frazier Report’s scathing criticism of executive-level failures in the October 25th Occupy Oakland response to the refusal of OPD Management to accept responsibility, particularly in light of the concluding remarks of Chief Jordan on p. 4 of the October 12, 2012 OPD Press Release announcing the discipline of rank-and-file officers: Accountability is a value that the City of Oakland upholds for every employee in every department; yet we recognize that an even higher standard is demanded of police officers, who must serve as guardians of the public trust. It is by holding police officers accountable, and by disciplining those who do not meet OPD’s high standards of conduct, that we honor those officers who maintain their commitment to constitutional placing and faithfully adhere to the rules which keep both officers and the public safe. Dr. Schwartz was absolutely accurate that “organizations cannot be changed by holding
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only line staff accountable” (Schwartz Declaration, p. 13). The concept of true accountability at the OPD has been, for more than a decade, smoke and mirror lip service by the leadership, who continue to point the finger downward, but never inward. D. THE STATISTICAL DATA RELIED UPON BY DR. SCHWARTZ DOES NOT SUPPORT A DETERMINATION THAT OPD OFFICERS ARE ENGAGED IN RACIAL PROFILING WITH REGARD TO STOPS, SEARCHES, OR ARRESTS Dr. Schwartz devotes pp. 26 and 27 of his Declaration to a discussion of the “elephant in the room” known as racial profiling. The statistical data relied upon by Dr. Schwartz appears to be the “OPD stop-data summary” prepared on March 16, 2011 by Patrick J. Caceres (Chanin Declaration, Exhibit 90). Although it is entirely possible that the City of Oakland will address Dr. Schwartz’s claim that statistical data supports a probability or even a likelihood of the existence of racial profiling in the City of Oakland, the OPOA has chosen to address this issue because (1) it involves conduct which, if true, is vulgar and offensive to the OPOA, and (2) would by definition be committed, if true, by members of the rank-and-file, who initiate stops and conduct searches. Just as this allegation by the Plaintiffs and Dr. Schwartz necessarily involves a discussion of raw numbers and statistics pointing directly to highly uncomfortable issues of race, so must the proper defense of the allegation involve a similar frank but uncomfortable discussion. Initially, it should be noted that the Caceres report involves an analysis of 24,947 “Individual Incident” stops of vehicles, pedestrians, bicycles, or “other” between July 1, 2010 to December 31, 2010 in the City of Oakland. The “Individual Incident” stops resulted in the officers reporting gender and ethnicity data of other individuals who were passengers in vehicles, or were associated with the primary person initially stopped (Caceres report, fig. 1, fig. 2). Thus, vehicles stopped for traffic violations which contained multiple passengers, or officers responding to a dispatched call of a single individual dealing drugs who contacted that individual and three others who were standing with him at the time a stop was made would explain why there were 46,915 persons stopped in 24,947 “individual incidents.”
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As a result, some of the total percentages reported by Mr. Caceres are skewed by the fact that an officer may have stopped a single motorist or intended to detain a single “suspect” described during a dispatched call, but ended up having to report the presence of multiple other individuals by gender and ethnicity in the same car or at the same location. Officers have no control over the gender or ethnicity of “others” who are with the “primary” person stopped, but those “non-primary” persons are included in the data Dr. Schwartz relies on when finding evidence of “racial profiling.” Mr. Caceres discusses a 13% “disparity” which Dr. Schwartz states is “strongly suggestive of racial profiling” with relation to the issue of whether the ethnicity of individuals stopped was known by officers before the stop was made (Schwartz Declaration, p. 26). The Table upon which that observation is based (Table 2) actually shows that when officers are aware of the race of the individual they are stopping, they also stop more Whites and Hispanics as compared to when race is not known. More importantly, the percentages relied upon do not even consider the numbers of people who may not have been considered to be the “primary stopped person,” but were simply in the same car or at the same location as the person who was the primary subject of the stop to begin with. Finally, Mr. Caceres does not indicate whether the stops analyzed were the result of dispatched calls giving specific descriptions of crime suspects or vehicles or were simply “on view” stops. This information must be known for an informed opinion to be offered concerning this statistic. Dr. Schwartz states on p. 26 of his Declaration that the fact that on-view pedestrian stops involved Black individuals 76% of the time, while dispatch-generated pedestrian stops involved Black individuals only 70% of the time “raises questions about racial profiling.” This statistic is reflected in figures 10 and 11 of the Caceres report. However, Dr. Schwartz did not mention figures 8 and 9 of the same report, which indicate that vehicle stops as a result of dispatched calls resulted in the stopping of Black individuals 64% of the time, while on-view vehicle stops during the same time period was actually less, only 56%. That percentage, of course, suggests an absence of racial profiling. Dr. Schwartz also discusses the number of pedestrian stops by race which result in
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searches: Black individuals at 62%, Hispanic individuals at 68%, and White individuals at 43%. Dr. Schwartz appropriately notes that many of the searches conducted and reflective of those statistics may be related to probation and parole searches, but argues that since 74% of weapons searches were conducted with Black individuals while only 7% involved White individuals, that statistical comparison “…may be the strongest indication of racial profiling in all these data.” Noticeably absent in discussion of this figure is the location where each search occurred, and whether each initial stop was related to a report of specific criminal activity at or near the location of the stop. Also noticeably absent in a discussion of this statistic is consideration of the statistical evidence of individuals who were arrested in Oakland for possessing firearms and who are described as either suspects in homicides or other violent crimes. A discussion of this information occurs below. As to the vehicle searches discussed in the Caceres report in tables 9 and 10, the real issues which need to be explored and analyzed are (1) whether the vehicle was stopped in the first place due to on-view activity by the officer, a dispatched call, or proximity of the vehicle to a reported crime; (2) the precise location where the vehicle was stopped; (3) whether the driver of the vehicle was on probation or parole; and (4) whether the search was consensual or based upon probable cause. Without understanding any of this information, the statistics cited and relied upon by Dr. Schwartz provide no meaningful evidence of activity related to racial profiling. The statistical data reported by Mr. Caceres and relied upon by Dr. Schwartz to suggest the possibility, if not the likelihood, of the prevalence of racial profiling requires further examination to place the data in the proper context. Exhibits M and Q to the Declaration of Michael L. Rains reports on arrests made during the reporting period for possession of firearms, homicide, and armed robbery. Those statistics disclose that during this time period, there were 200 arrests of Black individuals for possession of firearms, 8 arrests of White individuals, and 51 arrests of Hispanic individuals for that offense. More than 70% of the total arrests for possession of firearms involved Black
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individuals. 17 Black individuals were arrested for homicide during the reporting period, while only 2 White individuals were arrested. Also, 215 Black individuals were arrested for armed robbery while only 2 White individuals were arrested for that offense. More significantly, during the same reporting period, of the 25 instances when the suspect of a homicide was described by witnesses, Black individuals were listed as suspects in 24, while White individuals were listed in 1. Of the 4,343 violent crimes committed during the reporting period, Black individuals were listed as suspects in 3,956 or 85% of the crimes. The data reported on by Mr. Caceres and commented on by Dr. Schwartz also failed to include an analysis of calls made by Oakland citizens to the drug hotline describing drug activity and requesting police intervention. Attached to the Declaration of Michael L. Rains as Exhibit T is a memorandum obtained by Robert McFarlane, who is a legal investigator for Rain Lucia Stern, which was produced by the ABAT Unit, which compiles data concerning drug hotline calls. The data supplied by OPD indicates that, out of 1,012 drug hotline calls between July 1 and December 31, 2010, Black individuals were listed as suspects 78.3% of the time, Asian individuals 12.8%, Hispanic individuals 6.3%, and White individuals 2.6%. Another factor which Dr. Schwartz should have considered before alleging possibility of racial profiling is whether the stops described in the Caceres report occurred in areas where the greatest amount of criminal activity was occurring in Oakland during the same time period. While Mr. Caceres included a Table reflecting the fact that most incident stops were in beats 19X, 26X, 30X, and 34X, he did not compare those particular beats with crime activity reported during the same time period. (See Table 1.) Exhibit I to the Declaration of Michael L. Rains is a map of the City of Oakland showing the “narcotic hotspots” by OPD beat designation. The narcotic hotspots are determined by arrests made in those locations and calls on the narcotics hotline for enforcement activity. This Exhibit shows that the beats where the greatest percentages of total stops occurred during the reporting period (4X, 6X, 19X, 26X, 30X, and 34X) all had “high” or “very high” narcotic-related activity.
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Exhibit N to the Declaration of Michael L. Rains is a map of Oakland with beat designations showing the location of homicides during the reporting period. Once again, homicide location is concentrated in the very beats where high numbers of stops occurred, as reported on Table 1 of the Caceres report. Exhibit P to the Declaration of Michael L. Rains is a map of Oakland with OPD beat designations showing the location of gun arrests during the reporting period. Again, there is a high number of gun arrests in the same beats where the greatest stop activity occurred. Exhibit R to the Declaration of Michael L. Rains is a map of Oakland with OPD beat designations showing locations of aggravated assault, rape, and robbery during the reported period. Once again, there are very high rates of aggravated assault and robbery in the same beat areas which were identified as narcotic hotspots, where homicides were reported, and where gun arrests were occurring in the largest numbers. Thus, it appears that the stops that are generating the statistical information reported by Mr. Caceres are occurring in areas where there is high crime activity associated with narcotics, violence and robbery. The racial profiling discussion by Dr. Schwartz also did not include an adequate discussion of information available concerning parolees and probationers in the City of Oakland. Exhibit CC to the Declaration of Michael L. Rains is an excerpt from the parole census data report as of June 30, 2012 published by the Department of Correction and Rehabilitation. This report shows that there are 2,451 parolees residing in the County of Alameda as of that date. Exhibit DD to the Declaration of Michael L. Rains is an email from Oakland Police Department employee William Bergeron to RLS legal investigator McFarlane indicating that, of the 2,451 parolees in the County of Alameda, 1,357 (or 54%) reside in Oakland. Of that number, 78% of parolees are Black individuals, 9% are Hispanic, and 8% are White. Exhibit AA to the Declaration of Michael L. Rains is an excerpt of a Report from Alameda County Probation Department dated February 2012. This excerpt (fig. 19) shows that 67% of current referrals to Juvenile Hall were Black individuals, while 22% were Hispanic and 5% were White. Of the 58 juveniles referred for robbery offenses, 46 (80%) were Black
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individuals; of the 46 juveniles referred for felony assault or battery, 24 (49%) were Black individuals; of the 10 juveniles referred for murder, 6 (60%) were Black individuals. Exhibit BB to the Declaration of Michael L. Rains is an excerpt of an Alameda County Probation Department reported entitled “A Look into Probation” dated May 2011. Page 10 of this report describes commitments to a residential treatment program called “Camp Sweeney.” This is a camp for troubled male youth who are ordered by the juvenile court to be committed to the Camp to complete a six to nine month rehabilitation and educational program. As Exhibit BB indicates, 67% of court-ordered commitments to Camp Sweeney involve Black individuals. 23% involve Hispanic individuals, and 0% involve Whites. Finally, Plaintiffs’ Attorney, James Chanin, attached to his Declaration as Exhibit 90 a series of documents he describes as “stop data” information from OPD “showing racial disparity on OPD stops/searches.” These Exhibits were actually appended to a 14-page report from the OPD Office of Inspector General entitled “Audit of Task 34, Vehicle Stops, Field Investigations and Detentions, dated December 8, 2010” (Rains Declaration, Exhibit Z). There were four audit objectives described on p. 6 of the report which related solely to determining whether OPD was completing stop data forms as required by policy, to determine whether the data forms contained the required information to determine if the stop data could be properly summarized, searched, and reported, and to determine if the stop data was being accurately and completely entered. The audit of Task 34 was not intended to be nor was it actually an analysis of whether stop data, when analyzed with other available statistical and demographic information, showed the possibility or prevalence of racial profiling. It appears that Mr. Chanin, simply by viewing the graphs themselves, concluded that the evidence shows “…the racially disproportionate stops officers performance on racial minorities.” As we have attempted to point out, the Caceres report provided much greater contextual information than is seen in the Exhibits attached to “Audit of Task 34, etc.” relating to vehicle and pedestrian stops and searches. Nevertheless, even the information contained in the Caceres document which became the basis of Dr. Schwartz’s opinions concerning racial profiling, require a much greater and detailed examination of statistical and demographic data relating to
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crime in the City of Oakland in order to have true significance in determining whether racial profiling is or is not occurring. The OPOA as an organization abhors any form of racial profiling as that term is defined in Department General Order M-19. However, because of the repugnant nature of this behavior, and its implications, the analysis of such activity must be undertaken much more carefully and thoughtfully than that which occurred by the Plaintiffs and their expert in their moving papers. E. THE COURT SHOULD VIEW STATISTICAL COMPARISONS BY THE PLAINTIFFS AND THEIR EXPERT BETWEEN A DETROIT POLICE DEPARTMENT AND THE OAKLAND POLICE DEPARTMENT WITH SKEPTICISM. Dr. Schwartz states on page 28 of his Declaration that between April 2011 and June 2012, Detroit Police Department averaged 2,200 arrests per month and between January 2010 and March 2012, Oakland Police Department averaged 1,074 arrests per month, or approximately one-half of the monthly arrests made by Detroit. Although the OPOA and counsel have not been able to verify the Detroit arrest figures, we have no reason to quarrel with them for purposes of this response. However, against that background, both Dr. Schwartz (pp. 28-29 of his Declaration) and the Plaintiffs (pp. 38-39 of their Motion) report much more substantial instances of use of force by the OPD (370 per month) than the use of force reported by Detroit Police Department (91 per month). Dr. Schwartz and the Plaintiffs also assert that in 2011, OPD averaged 900 instances of officers pointing weapons per quarter, while DPD averaged only 22 instances of officers pointing weapons per quarter during the period of July 1, 2011 through March 31, 2012. There are an abundance of reasons to be skeptical of this data. Counsel for the OPOA has reviewed and studied the Detroit Police Department Directive Number 201.11, the Use of Force and Detainee Injury Report Investigation Policy (Rains Declaration, Exhibit EE). Although Dr. Schwartz states in his Declaration (p. 29) that Detroit Police Department figures concerning pointing firearms at persons include simply drawing the firearm and that “presumably the DPD for drawing the firearm and pointing it at someone would be even lower.” However, Dr. Schwartz does not identify the source of his
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information. DPD Directive 201.11 defines Category 1 Uses of Force and Category 2 Uses of Force, neither of which includes the drawing of a firearm, or even drawing a firearm and acquiring a target. The definition of “force” appearing on p. 2 of the policy does not include the drawing or even the pointing of a firearm. The policy requires a report (UF-002) to be prepared in five different types of incidents, one of which is described as “the drawing of a firearm and acquiring a target.” Nothing in the policy itself states that DPD officers are required to complete reports simply when they draw a firearm, or, for that matter, when they point a firearm in the direction of someone without actually “acquiring a target.” Also, the 11th Quarterly Report from the Monitor for the Detroit Police Department shows that the data which Dr. Schwartz reports on comes from Subtask i, entitled “Officer draws firearm and acquires target.” Contrast the DPD directive to OPD’s Special Order 8977 (Rains Declaration, Exhibit FF). That Special Order requires officers to prepare use of force reports if an officer either points a firearm at a suspect (1) with a sight picture attained, (2) in a “ready position,” or (3) in a “retention” position (Rains Declaration, Exhibit FF, p. 1). The skepticism expressed by the OPOA concerning DPD figures relating to the pointing of firearms is heightened when examining additional information contained in the Eleventh Quarterly Report of the Independent Monitor for the Detroit Police Department (July 10, 2012) (Rains Declaration, Exhibit GG). That Report discloses that even though Detroit officers during the quarter of July 1 through September 30, 2011 drew firearms only 18 times, there were 7 instances of officers discharging firearms. Stated otherwise, and with reference to Dr. Schwartz’s statement that the figures include officers simply unholstering their firearms, these figures indicate that in 40% of the instances where Detroit officers simply unholstered their firearm, they also fired the weapon at an intended target. For the quarter of October 1 through December 31, 2011, officers drew their firearms 12 times and shot an intended target in 50% of those instances, or six times. For the final quarter of the Report, January 1 through March 31, 2012, 33% of the times officers drew their firearms (30) they discharged the firearm (10). The DPD figures concerning officers simply unholstering a weapon during these
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various quarters is viewed with great skepticism by the OPOA, in part because of OPOA’s belief that DPD (Detroit) SWAT team members are required to report the drawing of firearms during tactical call-outs (this is required in Oakland). One SWAT call-out in Oakland involving various components of the OPD Tactical Team is likely to result in no less than 40 instances of officers drawing their firearms and writing accompanying reports. It is simply hard to imagine that the City of Detroit does not experience similar tactical call-outs for its SWAT Team where an anticipated larger number of officers in the Detroit SWAT Team would, at the very least, be unholstering weapons or pointing them, and thereby subject to reporting requirements. It is not inconceivable that a single tactical call-out could result in more than 100 officers drawing and pointing firearms. F. THE FREQUENCY OF POLICE SHOOTINGS IN DETROIT AS COMPARED TO OPD IS STARTLING, AND UNDERMINES THE DETROIT DATA CONCERNING THE POINTING OF WEAPONS EVEN MORE On October 2, 2012, Independent Monitor Robert S. Warshaw released his sealed Special Report Concerning Officer-Involved Shootings in Oakland. No portion of the sealed report will be discussed in this response. However, the Monitor indicated that the report evaluates the “nine most recent level one uses of force, eight of which involved Oakland Police Department (OPD) officers discharging firearms” (p. 1). Page 2 of the report summarizes the various events, and the individual event summaries (which are sealed) appear on pp. 3-11. The Monitor did not indicate the dates of the various events in his summaries, but OPOA counsel has determined that the earliest officer-involved shooting which is analyzed in the Monitor’s report occurred on May 18, 2011. All of the officer-involved shootings reported involved a single officer firing his/her weapon, with the exception of event number 9, which involved two separate officers firing. Thus, in the span of seventeen months, nine Oakland officers discharged firearms which were analyzed in this report. The 11th Quarterly Report of the Independent Monitor for the Detroit Police Department dated July 10, 2012, (Rains Declaration, Exh. GG) which has been discussed and relied upon by the Plaintiffs, indicates that, as compared to OPD, during the nine months beginning July 1, 2011 and ending March 31, 2012, twenty-three Detroit police officers discharged their
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weapon. This is more than two and one half times the number of Oakland officers who discharged their weapon in almost twice the time period. The significance in this data is “startling,” to use the terminology of Dr. Schwarz in his Declaration (p. 28). Not only does it demonstrate that DPD officers are shooting at individuals in Detroit at a much higher rate than OPD officers, but it also calls into greater question DPD data describing the number of instances when weapons are simply withdrawn from their holsters, irrespective of whether they are pointed at individuals or not (Schwarz Declaration, p. 29). Finally, a post-script to the Chief Warshaw’s October 2, 2012 officer-involved shootings report is in order here. The OPOA is in complete agreement with Chief Warshaw that “having a Department culture is not a negative thing. In fact, a police leader should intentionally try to foster an organizational culture based on honesty, integrity, respect for those served, and other positive attributes” (Independent Monitor, October 2, 2012 report, p. 15). As to this point, the OPOA simply reminds all parties to this process that the tone for organizational culture is set at the highest level of the organization and is not established necessarily by edict or policy formulation intended to be followed only by those at the lowest levels, but by behavior of those at the highest levels which demonstrates these qualities. The OPD has been in short supply of this type of leadership during the last decade. That having been said, Chief Warshaw mentions on pp. 15 and 16 of his OIS analysis that OPD officers may be suffering from “hypersensitivity to the dangers of police work.” Space limitations do not permit an extended response to this observation, but it is true that when police officers begin and/or end their shift by walking past a wall which contains the names of 51 of their colleagues killed in the line of duty, they do not become cavalier to the reality of danger associated with their work. During the six-month period beginning January 1, 2012 to June 30, 2012, the OPD “shot spotter” system recorded 2,692 separate incidents of confirmed gunshots. Of those, 1,154 involved instances of multiple gunshots. This amounts to 192 times per month that the shot spotter system is recording multiple gunshots occurring in the City of Oakland. It is not an
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overstatement to say that this is audible evidence of “armed conflict” in the City. It is true that overreaction by police officers to perceived danger can and does result in officers electing a discretionary response viewed after-the-fact as unnecessary. At the same time, parties to this proceeding cannot ignore the language of the Ninth Circuit when discussing a hindsight determination that officers could have used “less intrusive measures to deal with a dangerous situation”: Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment. In the heat of battle with lives potentially in the balance, an officer would not be able to rely on training and common sense to decide what would best accomplish his mission. Instead, he would need to ascertain the least intrusive alternative (an inherently subjective determination) and choose that option and that option only. Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless secondguessing of police decisions made under stress and subject to the exigencies of the moment. Scott v. Henrich, (Fed. Cir. 1994) 39 Fed.3d 1912, 1915. G. AS OBSERVED BY DR. SCHWARZ, CITY AND OPD MANAGEMENT HAVE MISSED THE MARK BY FAILING TO FIX BROAD DEPARTMENTAL AREAS OF CONCERN UNDERLYING NSA TASKS WHILE FOSTERING A DISHONEST AND MEAN-SPIRITED INTERNAL AFFAIRS INVESTIGATIONS PROCESS. Dr. Schwarz makes the excellent point in his Declaration (p. 20) that: [t]he goals and objectives of the NSA were never about the discrete list of narrow and detailed provisions. Rather, those were a means to an end. The end that was sought was to achieve much broader long-term changes in OPD. To continue to focus solely on compliance with those narrow and detailed provisions in the face of clear evidence that the overall goals and objectives of the NSA have been lost, is akin to the cynical medical joke about ‘the surgery was a success, but the patient died.’ If anything, the theme of the current OPD and City administration has to be something akin to “while we have utterly failed to achieve long-term changes in OPD, our competency is nevertheless demonstrated by our short-sighted willingness to hold line staff accountable for all identifiable department failures.” As the Declaration of Michael L. Rains indicates, the OPOA and its counsel embrace an
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Internal Affairs investigation and adjudication process which is prompt, thorough, fair, and based on proper evidentiary standards. We are confident the Plaintiffs’ counsel also embraces such a process. Unfortunately, the current administration has demonstrated repeatedly that it is more interested in “getting” officers than in trying to help them in any meaningful way if personal or professional issues threaten to affect the quality of their on-duty performance. In the examples cited by Mr. Rains in his Declaration, the OPD Executive Management has demonstrated that it is entirely comfortable fastening blame on a police sergeant for failure to provide leadership during the search for a police officer shooting suspect when a deputy chief, captain, and a lieutenant were also present; when the IAD Commander and/or City Attorney decides that an expert witness report is exculpatory to an officer who is being fired, it is simply concealed; when the OPD executive management team wants to “save face” after trying unsuccessfully to fire a police sergeant in a high-visibility, media intensive case, the Internal Affairs commander is simply directed by the police chief to lie to the officer’s attorney concerning the Department’s decision that no discipline could be imposed. As indicated in Mr. Rains’ declaration the primary problem with the current internal affairs process in the OPD is not the investigatory process, but is instead the adjudicatory process engaged in by city and OPD management after the investigation is concluded. In fact, the current state of affairs at OPD is very similar to the observations made by this court concerning the internal affairs process at Pelican Bay State Prison in its decision in Madrid v. Gomez (supra, 889 F. Supp. At 1193): In most cases, the fact-finding process of interviewing witnesses and obtaining pertinent medical reports functions satisfactorily, although the record does contain instances in which obvious witnesses were left unquestioned. It is in the evaluation of the information obtained, however, that the process loses all integrity. As Mr. Rains indicates in his Declaration, there are no reported studies or empirical data which demonstrate that there is a direct correlation between the number of sustained complaints of Internal Affairs investigations and lawful and professional police behavior; there are no reported studies nor empirical evidence to support the claim that an Internal Affairs
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system which is perceived by the employees as unfairly heavy-handed, inconsistent, and subjective leads ultimately to more respectful and professional policing in a community. As Mr. Rains points out, Professor Muir, in his study of the “reign of terror” prevalent in the OPD in the early 70s, discussed five different “serious counter-productive responses” by those employees who were subjected to it (Rains Declaration, Exhibit G). Like any other service industry, OPD management must recognize that the employees in uniform who interact with constituents 24 hours a day are the visual representatives of the police organization. It does not take a social science or law degree to understand that an employer cannot send its representatives to serve its “customers” and simultaneously demean and demoralize those representatives by the imposition of heavy-handed and unfair discipline. Unfortunately, the Executive Management of the City and the OPD, since the very inception of the Riders case to this date, “manage” in this fashion. H. IN THE EVENT THE COURT APPOINTS A RECEIVER, THE OPOA REQUESTS THAT THE RECEIVER’S AUTHORITY WILL NOT INTRUDE OR INFRINGE UPON RIGHTS AFFORDED OPOA MEMBERS IN THE EXISTING OR FUTURE COLLECTIVE BARGAINING AGREEMENTS, OR PROCEDURAL AND SUBSTANTIVE DUE PROCESS RIGHTS OF OPOA MEMBERS IN DISCIPLINARY INVESTIGATIONS AND PROCEEDINGS. The Plaintiffs have not alleged in their moving papers that NSA compliance has been impeded by provisions of the Collective Bargaining Agreement in existence for the last nine years. Plaintiffs have not alleged that efforts by the OPOA and its counsel to enforce substantive and procedural due process rights of OPOA members have impeded NSA enforcement in nine years. The OPOA as an employee organization has not asserted that the NSA, as it is presently written, violates the collective bargaining rights of OPOA members or infringes upon procedural or substantive due process rights in nine years. At this juncture, the OPOA recognizes that the appointment of a Receiver is a discretionary decision the Court will exercise after considering briefing by the parties and holding hearings commencing on December 13, 2012. If the briefings and the evidence ultimately produce an order from the Court appointing a Receiver, the OPOA respectfully
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requests that the Receiver’s authority be clearly defined, and that the definition require the appointed Receiver to perform his/her duties without intrusion upon or interference with the collective bargaining rights of the OPOA and its individual members and/or the procedural and substantive due process rights of the same members. The OPOA also requests that the order for a Receiver, if one issues, provide a mechanism by which potential claims of collective bargaining infringement or due process right intrusion may be brought to the Court’s attention and resolved by the Court directly or by a hearing officer appointed for that purpose. Dated: November 8, 2012 Respectfully submitted, RAINS LUCIA STERN, PC /s/ Michael L. Rains By: Michael L. Rains Attorneys for Oakland Police Officers’ Association

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