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Was Oakland PD's Proposed Crowd Control Policy Illegal?

Posted: May 24, 2012


On April 23, the city of Oakland held a press conference, attended by Mayor Jean Quan, Chief of Police Howard Jordan and City Administrator Deanna Santana, announcing new reforms in crowd control policy by the Oakland Police Department.

The timing was certainly auspicious, coming just prior to the biggest Occupy protests in several months, as well as an imminent official review of OPD by Judge Thelton Henderson, one of two federal monitors tasked with enforcing court-mandated reforms on the agency.

At the conference, Quan praised Santana and Jordan’s “commitment to accountability,” while Santana noted the need for OPD to be an organization that “acknowledges the areas that require improvement or corrective action.” The new policies, Jordan said, were intended to improve “our training, tactics and policies in light of our experiences.”

As detailed in internal OPD documents and by civil liberties organizations, Oakland police and mutual aid agencies frequently violated the department’s standing crowd control policies during previous Occupy protests, which resulted in the mass arrests of hundreds of protestors; the use of tear gas, flash-bang grenades and other less-than-lethal weapons by OPD and mutual aid respondents; charges of excessive use of force - including the high-profile wounding of Iraq war vet Scott Olsen; an apparent conflict–of-interest involving the Internal Affairs officer assigned to investigate Occupy-related misconduct cases; media complaints of violations of First Amendment rights; and a joint misconduct suit by the American Civil Liberties Union and National Lawyers Guild.

OPD’s new policy, based around recommendations from the Frazier Group, an outside agency hired by the city, promised improvement in five key areas: Crowd Management Training, Community Involvement, Media and First Amendment Rights, Use of Force Investigations and Use of Mutual Aid. According to the city’s press release, officers were already receiving training in all these areas, to be completed by the end of April, in time for the May Day protests.

The press release also contained language, which appeared to abandon the specific circumstances outlining the use of force under current policy, in favor of a much vaguer set of standards.

However, such revisions may have been illegal. Linda Lye, a staff attorney with the ACLU of Northern California, said OPD may have exceeded its authority to enact reforms in crowd control policy.

OPD’s current crowd control policy, Lye explained, is pursuant to a court settlement reached in the 2003 Port of Oakland incident, during which Oakland police fired wooden dowels and shotgun-propelled bean bags into a crowd of protestors, injuring 58 people. For that reason, she said, “OPD does not have unilateral authority to change that [policy].” Instead, she said, “they are required to consult with a monitor” before announcing any revisions.

Because OPD’s existing crowd control guidelines were part of a federal court order and are still legally binding, the department doesn’t “have the power to make any changes in that unilaterally,” added Rachel Lederman, an NLG attorney.

Even more confusing to some is the fact that a few weeks ago, Lederman said, OPD “inexplicably” posted the Peace Officer Standards and Training - or POST - crowd control guidelines on its website, even though it already lists the existing guidelines as its official policy. Furthermore, the city’s press release made additional mention of new guidelines, stating that OPD is “revising its crowd management policy to be consistent with upcoming POST-recommended crowd management policies.”

This raised a red flag for civil liberties advocates, who maintain that OPD doesn't need to revise its crowd control policies - just do a better job of enforcing the ones it already has. According to Lye, POST guidelines have “vaguer standards” and offer less “clear guidance to officers in the field” than OPD’s current guidelines.

An April 24 letter from the ACLU to Jordan noted that POST guidelines “appear to permit the use of so-called ‘less-lethal’ munitions to disperse crowds,” a significant change from current policy, which “specifically prohibits the police from shooting such munitions into crowds as a means of crowd dispersal.”

In other words, under OPD’s suggested revisions to its crowd control policy, the wounding of Olsen would have been within accepted use of force guidelines.

Jordan has yet to officially respond to requests for clarification from the ACLU and reporters. However, on April 26, Deputy City Attorney Rocio Fierro sent Lederman an email, obtained by Oakland Local, which raises as many questions as it answers.

Fierro's email refers to an OPD source who confirms the new crowd control policies were postponed until after May Day. If accurate, this would certainly be news to all the media organizations, which reported on the reforms outlined by the city just three days earlier, especially since there was no official announcement rescinding the new policies.

In April, Quan made a point of emphasizing that Santana and Jordan “have not waited for outside reports” to initiate reforms - despite the fact that OPD was legally obligated to consult with an outside agency before revising its crowd control policy. According to Quan, "interactions with demonstrators and the community have already changed,” which suggests that, by April 23, reforms were already well underway, at least by Quan's reckoning.

But that’s just the tip of the iceberg. Fierro’s email of April 26 appears to contradict not only the city’s initial reports that officers were to receive updated training up until April 30, but also OPD’s own statements five days later, on May 1, when reporters were informed that police had employed new strategy with regards to Occupy protestors.

Lederman said there has been “a lot of double talk” coming from OPD and City Hall regarding crowd control policy.

“They’ve said they’re changing it, they’re not changing it. They referred to doing training, but we have no idea if or what training they’ve done," Lederman said. "They haven’t told us or released those training documents so far.”

Lederman said she recently deposed two OPD commanders as part of ongoing litigation, but the commanders “couldn’t really remember when they had last been trained in crowd control policy.”

Fierro's email denies “rumors” that the revisions “in any way modified or changed the policy requirements respecting the use of force or the deployment of less-lethal munitions.“ However, it’s unclear exactly what she meant by “rumors,” since the city’s press release made specific reference to POST guidelines.

On May 1, OPD's use of less-than-lethal munitions were deployed differently than at past Occupy protests. Rather than being fired indiscriminately into large crowds, tear gas and flash-bangs were used in a smaller area to make singular arrests. This tactic, which fits in with the new strategy outlined by OPD on May 1, sounds like an improvement.

According to Lye,“The fact that Oakland was finally implementing that, to a better degree on May Day, means that Oakland is finally catching up in implementing its own policy.”

Next, Lye explained that for city officials and police, the advantage of adopting a less-specific crowd control policy isn’t lessening the possibility of misconduct, but reducing liability. She adds that OPD’s existing crowd control guidelines already calls for employing minimal use of force.

“When you have specific policy and you violate it, it’s much harder to mount legal defense,” she explained.

Since “litigation is ongoing,” Lye said, it’s doubtful OPD brass or the City Attorney’s office are unaware of legal requirements surrounding OPD’s crowd control guidelines. This raises the question of why OPD did not consult with the federal monitor before announcing its new policy.

Alex Katz, communications director for Oakland’s City Attorney, said he was unaware of Fierro’s email and couldn’t comment without knowing the proper context under which it was written. Katz told Oakland Local he was familiar with the court settlement, which established the legal framework under which OPD’s crowd control policies exist, but said he couldn’t comment “without looking further into the issue.”

Calls and emails to OPD’s Media Relations office, the Mayor’s office and the office of the City Administrator seeking further comment and clarification were not immediately returned at press time.


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