Sunday Commentary: Does Oakland Police Report Give Us Insight into Broken Discipline System?

The long-troubled Oakland Police Department became the latest focal point of potential police reform efforts on Tuesday, as a scathing report was released. The police department over a decade ago was put in a federal receivership under the auspices of US District Judge Thelton Henderson.

Judge Henderson appointed San Francisco attorney Edward Swanson, who was granted sweeping power to investigate the police department and its system of oversight. The report clearly situates the Oakland Police Department within a national landscape that is increasingly scrutinizing the actions of police officers.

As Edward Swanson writes, “As the nation has focused on a string of recent high‐profile cases involving police conduct – from Ferguson to Staten Island to North Charleston – the issue of police discipline has taken center stage. These incidents raise the vital question of whether police departments can be trusted to police themselves.”

The basic question is one that has been asked time and again: who can be trusted to police the police? As Mr. Swanson puts it: “If a police department’s internal discipline system does not work, the entire department suffers. A broken discipline process means bad officers remain on the force – a clear threat to public safety. It also means good officers lose faith in the process. And it erodes the public’s trust in local law enforcement.”

The latter point is most critical, for it is one that seems most often missed by defenders of the police status quo: those who are critical of the police are seen as anti-cop, rather than wishing to protect public trust in the police. What we have seen most clearly in the last eight months since Ferguson is the impact that the lack of trust by segments of the community have on the ability of the police to do their job.

So, what is wrong with the Oakland Police Department? It is rather simple, according to Mr. Swanson. He argues, “For years, Oakland’s police discipline process has failed to deliver fair, consistent, and effective discipline. Time and again, when the Oakland Police Department has attempted to impose significant discipline, its decisions have been reversed or gutted at the arbitration stage, causing the public to question whether the City handles disciplinary cases appropriately.”

Mr. Swanson argues that there are many reasons why the system is broken, but he sees four broad categories.

These include:

• First, the Department has not done what it needs to do to ensure fair and consistent discipline. Its internal investigations have often been inadequate, resulting in repeated reversals of discipline decisions in arbitration. Because internal investigations serve as the foundation for the Department’s disciplinary decisions, mistakes or oversights in the investigation stage undermine the Department’s efforts to impose lasting discipline. Further, OPD’s polices are vague or inconsistent in ways that have repeatedly come under fire from arbitrators. And perhaps most alarming, while OPD’s discipline decisions were repeatedly reversed, Department leadership did not publicly express indignation with any of the arbitrators’ decisions, and it did not make it a priority to fix the discipline system.
• Second, the Oakland City Attorney’s Office (“OCA”) demonstrated neglect and indifference in its handling of OPD disciplinary cases and arbitrations. The City of Oakland has lost arbitrations time and again because the OCA has generally done a poor job of representing the City’s interests. For years, the OCA handled disciplinary arbitrations haphazardly, often waiting until the last minute to prepare for hearings or to assign cases to outside counsel, and showing little regard for the importance of police arbitrations to the integrity of the entire police discipline process. While there have been notable improvements in the OCA’s handling of arbitrations in recent months, there is little evidence the OCA was taking action to address its poor record in arbitrations before the Court ordered this investigation.
• Third, the relationship between the Department and the OCA has been dysfunctional. The two offices have viewed each other warily, and they have not consistently supported each other’s needs in the discipline process. The tension in this relationship has only exacerbated problems with the discipline system.
• Fourth, there has not been a culture of accountability regarding police discipline in Oakland. The problems with police discipline are not just an OPD problem; they are a City of Oakland problem. A police discipline process that is not fair and consistent corrodes both the relationship between officers and their superiors and the relationship between citizens and their police department. But the Oakland City administration – the Mayor, the City Administrator, and the City Council – has not held anyone to account for these failures. The City administration has done nothing to demand or enforce an effective discipline system. Simply put, it should not have taken a court order to focus the City’s attention on these problems.

Mr. Swanson is quick to note that, even when the system is working well, “not every disciplinary decision made by the Department is correct; such decisions are subject to human error and fundamental differences in opinion.”

However, that is not what is happening here. He writes, “But the problems the City of Oakland faces are not just the result of the challenges of arbitration or the possibility of error. They are the result of a broken and inadequate system that has evaded the public’s scrutiny for too long.”

The report argues that the city can do better but that there is no easy fix. Mr. Swanson suggested that the Police Department revise its “investigation procedures and training so that the resulting investigations are more robust – and thus more resilient – at the arbitration stage.”

He suggests stationing a Deputy City Attorney in the Police Internal Affairs Division, who can assist with the investigation into a serious complaint.   He also argues that the Mayor, City Council and City Administrators should hold the police and city attorney’s offices “accountable for failings in the police disciplinary process by requiring both offices to provide regular updates on serious discipline cases and efforts to reform the discipline process.”

He writes, “The benefits of an improved discipline system will be many. Officers who have done nothing wrong will be cleared earlier in the process. Officers who have engaged in misconduct will be appropriately disciplined; arbitration will no longer offer a get‐out‐of‐discipline‐free card. Perhaps most important, an effective discipline process will build public trust in the Department and promote public safety.”

One thing we do not know from this report – is this problem specific to Oakland Police or should we be looking at police oversight and discipline across the board?

The report gives us rare insight into a system that has vast protections against public scrutiny.

The state of California law and Police Officer Bill of Rights clearly frustrated former Supreme Court Justice Cruz Reynoso when he was asked to lead a task force investigating the UC Davis Pepper Spray incident.

He said in May 2012, “My blame is on the legislators who have passed legislation that sometimes is referred to as the policeman’s bill of rights.”

‘The reality is, as you can see in this case, that it does not permit the community to know exactly what happened, who’s responsible for it, what can be done to correct it,” he continued.  “I think that that’s a great disservice to the communities that deal with police officers who, after all, are public servants.  And I personally think it’s a disservice to the police.”

A broad investigation into the police discipline system in California would seem to be in order. Getting that done seems a bit questionable, given the current state of the law and perhaps the lack of political will in Sacramento.

—David M. Greenwald reporting