[This investigation has an accompanying radio story produced by Andrew and published at Making Contact. You can listen to it here. You can also check Andrew’s earlier reporting on this topic in partnership with KALW and the East Bay Express]
It’s midnight. A vehicle driven by a black male is pulled over by a police officer. The reported reason, invalid registration, turns out not to be true. The driver is visibly upset and mildly uncooperative; he’s in front of his own home, and his family is inside waiting for him. He refuses to ‘get back in the car’ and the officer refuses to respond to his questions about whether he’s under arrest. Instead, the officer cuffs him and throws him in the back of the police car.
It’s a story that’s been told by hundreds of black men in Oakland and thousands across the country. Marcel Diallo is just one of them. But after almost two hours in the police car, then being released with two "fix-it" tickets for his license plates, Diallo decided he was "at a time of (his) life when he had to play defense," and filed a complaint. He’s not very hopeful it will amount to much, but being a well-known artist and community activist might help. "I think you have to use your own situation to affect the larger policy," says Diallo. He hopes that any attention his case receives can help the effort to reform the way that Oaklander’s complaints are heard.
Diallo’s complaint went to two bodies — one, the Oakland Police Department’s Internal Affairs Division (IAD), which is under court order to clean up its processes. The complaint can also be accessed by the Citizens Police Review Board (CPRB), a civilian body which some Oaklanders would like to see replace Internal Affairs.
[Marcel Diallo with his truck after recalling his story of being pulled over. The sticker with the 7 on it is to indicate that he had until July to get plates for his truck. One of Diallos main contention was that the sticker was easy to see.]
Over the past 35 years, citizens in more than seventy cities and counties across the country have set up civilian oversight bodies to try and get more transparency and accountability from their sheriffs and police departments. But the promise of such boards has largely gone unrealized, due to lack of funding, real authority, and political will. Oakland is no exception.
In 1980, Oakland established the Citizens Police Review Board (CPRB), but it’s been chronically underfunded and understaffed. The power of the CPRB is always in question. While the civilian board can recommend discipline of a police officer, the final decision about discipline is left up to the city administrator. This year has brought promises for a strengthening of the CPRB, but in a familiar pattern, no clear blueprint for how that might happen.
STAFFING AND FUNDING PROBLEMS
In 2008, the CPRB processed only about 74 complaints; that average has been roughly the same for past several years. That’s compared to the 1,156 handled by Internal Affairs last year. The CPRB has access to those complaints, but doesn’t have the manpower to look into them.
Out of nine board positions on the CPRB, only six are currently filled. The board only has three investigators; Patrick Caceres, the board’s policy analyst and outreach coordinator, says they need at least eight. Caceres says that low staffing means it could be nine months before a person hears about the results of their complaint “or in some cases it could be that their case goes un-investigated and (will) simply be closed.”
A large influx of complaints, says Caceres, would leave the CPRB debilitated. "We would not be able to manage the workload that we have.”
“The ability to select cases ten times the amount that we currently have and to choose those cases that are the most severe, could have also a tremendous impact on the ability to identify officers that have problems, behavioral problems, or have had continual issues of misconduct.”
In 2002, The Oakland City Council passed an ordinance requiring the CPRB have one investigator for every one hundred officers, but that ordinance included the stipulation that the positions were "to be added incrementally as permitted by the City Budget." It’s a judgment call left open to the Council — with tens of millions in general funds available each year, it’s up to their discretion when and where that money should go.
The CPRB also suffers from one problem that’s out of the city’s control. In 2006, the California Supreme Court ruled in Copley Press v. The Superior Court of San Diego County that all hearings by civilian review bodies in the state be held in private, and that the names of officers who were involved in the incident in question be withheld — even if the allegation is sustained. Thus even when an officer is punished, the public never hears about it.
Efforts in Sacramento to change the law to invalidate the effects of Copley were stymied by the lobbying of the California Peace Officers Association. Jason Wechter, an investigator at San Francisco’s Office of Citizens Complaints, that city’s civilian oversight body, says the resulting lack of transparency in the complaint and resolution process only multiplies mistrust of police by targeted communities.
“It’s a very significant hindrance, because it puts the entire disciplinary process behind closed doors,” says Wechter
"Just as there needs to be transparency in law enforcement, there needs to be transparency in oversight,” Wechter says.
The OPD’s complaint processes have lacked public confidence for many years, due to these same problems of capacity and transparence. Marcel Diallo looked into the complaint system once before, in 2001, when he, a business associate, and his partner, who was six-months pregnant at the time, were coming out of a church on 32nd Street and Adeline Street, and Oakland police officers ordered them to lay face down on the ground.
“I’m like, my woman is pregnant officer!” Diallo recounts. “Her six-month belly is smashing up against the ground!”
But at the time, Oakland was reeling from the "Riders" scandal, in which four OPD officers were accused of forming a gang that planted evidence, falsified reports and assaulted numerous people. Diallo found out his incident likely wasn’t severe enough to warrant action.
“It was so corrupt that if you filed a complaint trying to exact any kind of justice, they would be asking you: Did you get shot? Did you have a miscarriage? Are you bleeding from your skull? Well if you have not, then who is going to take your case?” says Diallo.
“This happens too much.” he adds,
“I’m a 36-year-old black man. I’ve had guns put to my head by police thirty or forty times in this lifetime…and I’m a college-educated brother, upstanding public citizen; that’s just my regular life growing up in the Bay Area, so I know I’m not the only one.”
CONFIDENCE PROBLEM, CIVILIANZATION AS SOLUTION
Community groups have been working for decades to strengthen the CPRB. People United For a Better Oakland (PUEBLO), one of the most visible groups, began their campaign for police accountability in 1993. But it was in 2006 that the current drive for reform came about, after a survey of Oaklander’s feelings about local policing efforts.
The study found that 90 percent of those who felt they had been mistreated by the OPD hadn’t filed a complaint with anyone — either the police’s Internal Affairs division or the CPRB. Sixty-four percent of those people said they didn’t think their complaint would make a difference, and another 20 percent didn’t trust the complaint process.
“The average person could say well, why didn’t you file a complaint? And based on the survey the answer most often given was — for what?” explains PUEBLO’s Executive Director, Rashidah Grinage.
The study also found that 14 percent of people chose not to file a complaint because they were "scared of retaliation," or "didn’t want to relive the bad experience" by engaging with the police."
In 2007, Grinage was named as a member of incoming Mayor Ron Dellum’s Police Issues Task Force. The group analyzed the survey data and arrived at a proposal to "civilianize" Internal Affairs: to have a civilian body take over virtually all of the functions of the OPD’s Internal Affairs Division, including receiving and investigating complaints about police behavior. The idea was to inspire confidence in the process and alleviate people’s fears and doubts. The hope was that with greater control, over time, the public’s trust of the complaint process and the OPD as a whole, could be gained.
“Everyone understands that accountability will never be realized when personnel from an agency are investigating their coworkers,” says Grinage. “It just isn’t going to be credible.”
Over the past two years, that proposal for full citizen control has been watered down; it now calls simply for the CPRB to take over intake responsibilities and not investigations. However, while the Mayor, the City Council and the Police Department have all expressed verbal support for the "civilianization" concept, it doesn’t look much closer to coming about than it did when Dellums took office.
Grinage says the effort to create a powerful CPRB has been up against “stonewalling by the city” ever since she became involved in police reform activism. She says that former Mayor Jerry Brown tried to get rid of the CPRB altogether, and it was only with the support of former Chief Wayne Tucker that the survey was ever completed.
“He confided in us that basically this survey was in the dead file, which was not a great surprise to us because the city had been throwing up one roadblock in front of the other for years,” she says.
This time around, the primary obstacle to change, according to public officials, is a lack of funding. A fully staffed CPRB would cost $1.29 million annually, more than twice as much as it does now.
But ironically, civilianizing Internal Affairs would actually save the city money. According to the Mayor’s Police Issues Task Force, within three years, the cost of training and hiring civilian investigators would be lower than what’s being spent to pay the 24 police officers currently staffing Internal Affairs, who receive substantially higher salaries and pensions to do that same work.
Another key selling point of the civilianization proposal is that it would free up the police officers currently working in Internal Affairs, to get back out on the streets fighting crime, a potential boost for a chronically understaffed police department.
Joyce Hicks, the former director of the CPRB from 2003-2007, says the civilianization proposal would be both "financially prudent" and "better for the community.”
She says her four years at the CPRB were “extremely frustrating,” due to a lack of staffing and funding by the Oakland City Council.
"It was determined that that was not the priority.” Hicks told Spot.us
The Oakland Police, for their part, have been resistant to empowering the CPRB. One former Bay Area police officer, speaking anonymously, referred to the OPD as "recalcitrant," when it comes to accepting criticism and making change.
In April, OPD Lieutenant Chris Shannon called the task force’s report and proposal “inherently flawed.” He added that the OPD sees making the CPRB the lone recipient of citizen complaints as a “major step backwards,” because the CPRB is slow in its investigations and incapable of taking on the responsibility.
“It’s one of those self-fulfilling prophecies," says Grinage. "You set something up to fail, and then you say ‘look, it failed.’”
OPD representatives also frequently refer to the 2003 Negotiated Settlement Agreement (NSA) as an obstacle to full "civilianization." The city entered into the the agreement as part of settling Delphine Allen v. City of Oakland, a case that grew out of the Riders scandal. It resulted in a judge overseeing and evaluating the improvement of many aspects of the Oakland Police Department, with a focus on Internal Affairs.
The NSA has required extensive policy changes by OPD’s Internal Affairs Division over the past six years. Deputy Chief Jeff Israel says better record-keeping, higher standards of responsiveness, and transparency have been difficult to achieve. He says there have been many times when the division thought it had met the required standard, only to be told by Judge Thelton E. Henderson that they needed to keep improving.
The NSA is set to expire on January 20, 2010, and at this point it’s unclear whether the OPD will meet the requirements and be removed from federal supervision. Although Israel says a strengthened CPRB could theoretically help the department meet the standards set up by the NSA, he believes that “timing is not great right now.”
“We are still not in compliance, so we don’t even really know what compliance looks like, and now we are going to be handing it off to someone else who’s never done it, (and) has no historical perspective with the monitoring team?” says Israel.
Conversely, there’s also an argument that the expiration of the NSA is all the more reason to get a strong civilian review board in place.
“If we can establish a police commission, they can supplant the role that the monitor team has been doing to make sure that we don’t go back to square one,” says Grinage. Otherwise, it may be a case of “well that’s all over with now kids, now it’s back to be good old days.”
Oakland’s Police Officers Association, as is typical with police unions, has routinely opposed moves to strengthen the CPRB’s powers. But Grinage praised the City Council, whom she says has "stood firm" and not given in to the union’s use of “everything from writs to memos to threats to litigation.”
Instead, Grinage puts much of the blame for slowing the civilianization proposal on City Administrator Dan Lindheim. The city administrator is the lynch-pin in communicating information and building consensus between the city, the police, and the non-governmental bodies who need to work together. He’s also the one who can spearhead efforts to get grant funding for the CPRB, an increasingly important issue with the city in dire financial straits.
But Grinage says Lindheim has characterized the police, CPRB and community advocates as so far apart on the civilianization idea that the City Council shouldn’t move forward on providing or seeking funds. In June, she sent out an e-mail calling Lindheim out for not including the task force’s report in information he sent to the Public Safety Committee. Lindheim later stated it was an accidental oversight.
“[Lindheim] doesn’t want to see this happen, regardless of the Council’s wishes.” wrote Grinage. “Lindheim’s strategy, as we suspected, is clearly DIVIDE AND CONQUER – emphasize the differences in our reports rather than allow the 90% of consensus to be clear to the Council.”
In a City Council meeting a few weeks later, Eric Cicineros, the convener of the Mayor’s Police Issues Task Force, pleaded with the Council to help move things forward.
“No one at OPD has told the OPD grant writer to get the funding…we don’t have that authority… our hands are tied…please direct Mr. Lindheim to do so.”
After finally getting instructions from the Public Safety Committee in late June, Grinage says the city administrator “has changed his tune," and is now regularly meeting with CPRB and OPD representatives helping to flesh out a proposal for transition.
But that delay took months, and putting off a vote on the civilianization proposal meant that by the time it was approved, several grant deadlines had been missed. It also meant Oakland’s 2009-10 budget picture was much bleaker. In April, Councilwoman Jean Quan was wondering out loud why money couldn’t be found to hire at least a couple of civilians to replace Internal Affairs officers and begin the transition. She pointed out that the police department already is allocated forty percent of the city’s budget. But by July, Quan and the rest of the Council were not even considering allocating general fund dollars to the CPRB.
Whether a vote of approval by the Public Safety Committee in April or May would have helped garner financial support is unknown, but by the time it came before the City Council, Oakland was facing an $83 million budget gap and there wasn’t a dime to spare. In fact, Councilman Larry Reid says he voted against the proposal because he fears there will be requests for general fund money down the line.
“If we apply for grants and we don’t get the funding, we will have approved something," Reid said in the July 7th City Council meeting. “And I guarantee Ms. Grinage will remind us that we have approved it.”
Instead, the Council instructed Lindheim to seek federal grant money to aid in the process. But considering the disappointing response to Oakland’s request for federal stimulus money — the city was granted only $19.7 million to hire 41 police officers, instead of the $67 million they requested to pay the salaries of 161 officers, it may be a long time before funding for the CPRB materializes.
“Because it comes down to budget, unless that’s resolved it will not happen,” Deputy Chief Jeff Israel told Spot.Us. “And the City Council controls the money.”
A group made up of the Mayor’s Task Force, the City Administrator, and the OPD are scheduled to come back to the Council in September with a more concrete transition plan. Until then, no funding can be pursued.
“The pressure really does fall on the ones who want to move this forward in being creative and coming up with alternative funding sources,” says Caceres.
For now, Grinage is pleased that the Council voted in principal for the CPRB to take over intake on complaints, which she calls the "first phase," of a transformation that will eventually see the CPRB conduct all aspects of the complaint process. She points to San Francisco as a model for what she’d like to see the CPRB become. Between San Francisco’s Office of Citizen Complaints (OCC), and the the city’s Police Commission, it’s the only civilian oversight process in the United States that gives ordinary citizens the power to discipline officers; it’s a policy that’s unpopular with officers, and a virtual guarantee that Grinage’s plans will face opposition.
“When OCC came into existence in 1983…there was a tremendous amount of resistance to it from the officers and the police department.”, says Jason Wechter, who was one of the first investigators hired at the OCC.
Some believe it’s the only way to truly make police departments accountable to the public. "Having civilians do that whole process is very powerful," says Barbara Attard, a board member at the National Association for Civilian Oversight of Law Enforcement and a former investigator at San Francisco’s OCC herself. "And it’s very powerful for it to be out of the hands of the police department."
But Attard, who has also worked at the police oversight bodies in Berkeley and San Jose, says "you don’t need a San Francisco model" to be effective. She points to Denver’s Citizen Oversight Board, which has a heavy focus on mediation, and Boise, Idaho’s Community Ombudsman as other models that have achieved success without the power to discipline officers.
"As long as your government officials take your agencies seriously, take the recommendations, fund your agency on the level that it needs to be funded, ensure that your police chief cooperates and back up your oversight agency, your agency will work."
Frustrated by years of delay, Grinage says a ballot initiative is likely in 2010 or 2011 to make Oakland’s CPRB more like San Francisco’s Office of Citizen Complaints.
But she acknowledges that initiative will have a hard time at the polls.
“The issue of police misconduct is one that is a very hard sell in terms of mainstream voters who don’t see this as their issue, who don’t foresee that they will have any issues with police or their children will, and therefore it doesn’t really touch them,” says Grinage.
“For the most part they think that cops are honorable and professional and that if something goes wrong, usually it’s the victim’s fault and not be the officer’s fault,” she adds. “There’s a presumption that if you get hurt by an officer you did something to deserve it."
If the ballot initiative doesn’t work, Grinage says the future is uncertain, with a new police chief and a new mayor expected in 2010. Sean Wendt, commander of OPD’s Internal Affairs Division, says that it will be at least a year or year and a half before any positions could be transferred over from Internal Affairs to civilians.
“I have been on the Council for 12 years and we’ve been talking about civilizing police oversight,” said Councilwoman Nancy Nadel, “It’s already been a long process.”
“This town, in this economic times, is not big enough for an Internal Affairs [department], and a civilian process. You are going to have to choose.” said Berkeley Copwatch’s Andrea Pritchett, speaking to Oakland’s Public Safety Committee in April.
“So the fundamental question the people want to know is — Who is in charge here of this process?…Is the police or is it the people?”
Oversight bodies in cities across the country have sunk into ineffectiveness because of a lack of political will similar to that in Oakland. As a result, many Bay Area copwatchers are skeptical of the possibility of there ever being a healthy CPRB. Brian Helmley from San Jose Copwatch says he’s reluctant to join the movement to get civilian review in San Jose.
“Although I think a civilian review board would be a great thing, it would be really helpful, I just think the process of getting in involves a lot of effort…I don’t necessarily think that’s the best use of the movement’s resources.”
Back in West Oakland, on 12th Street and Pine Street, Marcel Diallo stands out in front of his coffee house and performance space, the Black Dot Café.
He’s joined the effort to push for an empowered CPRB, because he’s convinced the only solution is to “create something where we have a firing power as a citizenry, where we, actually, the people who pay their salaries with our taxes have the right to fire one of them if they are not doing what they are supposed to be doing.”
He invokes the spirit of the Black Panthers, who once had their headquarters only a few blocks away.
“Sometimes we tend to forget, because we believe the hype and sort of start believing that they are in control of these streets. But Huey (Newton) and them didn’t believe that…We’re still in West Oakland. We are still in the place where one of the first national community policing efforts was launched, so a lot of us do remember that. So while some of us may be falling for the Oki-doke, a lot of us do understand that they are here to serve and protect and work for us.”
For More Information:
Bay Area Rapid Transit (BART) Police
Berkeley Police Review Commission
1947 Center Street
Berkeley, CA 94704
California State Assemblyman Tom Ammiano
PO Box 942849
Sacramento, CA 94249
Justice For Oscar Grant Committee
Oakland Citizens’ Police Review Board
One Frank Ogawa Plaza, 11th Floor
Oakland, CA 94612
National Association for Civilian Oversight of Law Enforcement (NACOLE)
638 East Vermont Street
Indianapolis, IN 46202
PO Box 42456
Portland, OR 97242
San Francisco Office of Citizen Complaints
25 Van Ness Avenue, Suite 700
San Francisco, CA 94102
Blogs, Articles, Links:
NACOLE list of Civilian Oversight Agencies
US Dept of Justice Report:
Citizen Review of Police: Approaches and Implementation. March 2001
City of Berkeley Police Review Commission 2004 report
Justice for Kendra James Community Information