5:52pm

Mon June 24, 2013
Cops & Courts

Oakland’s civilian oversight provides justice for few

The top brass of the Oakland Police department looks a lot different than it did a month ago. In just one week in May, two police chiefs resigned: former chief Howard Jordan, then his successor, Anthony Toribio.

The departures followed several highly critical reports: one by an independent consultant, the other by the department’s court-appointed overseer. Both find that years after the landmark police abuse scandal known as the Riders case, the department is still struggling with leadership, accountability, and transparency.

Despite the uncertainty, Oakland residents do have a way to document negative interactions with the police. The Citizens’ Police Review Board, or CPRB, was established in 1979 after two OPD officers killed Melvin Black, a 14-year-old African-American boy. An independent investigation found the shooting was not justified. But the city attorney, the police department, the US attorney’s office, and the district attorney’s office all said it was justified. Residents were outraged. They began to put pressure on city leaders, demanding more oversight of police.

More than 30 years later, the CPRB has investigated thousands of cases. In 2012, Tom Moloney became one of them. All he wanted was a police report.

We approach the American Steel building in West Oakland, where he was attacked almost a year and a half ago. Moloney, his girlfriend, and a friend attended a fundraiser that night, where everyone drank and partied.

“As the night wore on,” he recalls, “my friend who I was in the company of, who is transgender, was verbally accosted by some fellow guests here.”

Moloney says he and his companions asked the harassers to take it easy and walked away. Still, things got heated. Someone raised a fist. Moloney stepped in.

“That was kind of the last thing I remember happening here,” he says. “Because at this point, I was then accosted and beaten. I was hit rather severely, to the point where I lay on the ground … pretty much where we’re at now... very unconscious.”

The ambulance came, along with the police. Witnesses told him they saw officers question some people at the scene, though they didn’t arrest anyone. Moloney was treated at Highland Hospital for massive head injuries.

“One of the police officers brought the girls to the hospital and calmed them, and for that I'll forever be grateful,” he says. “He was a really good guy.”

A week after the incident, Moloney went to OPD headquarters to obtain a police report. But when he got there “they told [him] there was nothing,” he says.

He pressed the reception officer at the station, who gave him a form to request a police report. For the next few weeks, he kept following up with the police. Without a police report, Moloney couldn’t press charges against his assailant because he had no way to prove any crime occurred.

After months of inquiry, Moloney took his case first to the police department’s internal affairs division, then to the Citizens’ Police Review Board (CPRB). He lodged separate complaints with both. Then, he waited. And waited some more. Other than a letter or two saying the case was moving forward, he wouldn’t hear anything for almost a year. 

At a monthly CPRB meeting, a dozen volunteer board members convene in Oakland’s city council chamber. They discuss a retreat to orient new members and other agency business, then begin an evidentiary hearing. That’s when the board hears cases lodged against individual officers – the meat of its work – and it’s closed to the public.

Every case gets a preliminary review of the facts. After that, the vast majority are “administratively” closed, either because the complainant stops cooperating, or because there isn’t enough information.

In 2012, the board received 67 complaints. Fifty were administratively closed and five were checked out by full-time civilian investigators. Another five went directly to the city administrator for review. The others are still pending.

When hearing a case, board member Sokhom Mao says he tries to fill in all the pieces.

“As I’m picturing the story in my head,” he says, “I try to see if there’s any missing evidence or someone’s not there. Is there a witness?”

During the hearings, board members get a chance to speak directly with both the complainant and the accused officer, which Mao says is a key part of the process.

“We have an opportunity to ask questions and to really get down to the story of what happened,” he says.

In his day job, Mao is a child welfare advocate. Other board members range from a former civilian police employee to social workers and attorneys. Mao says the diversity of the board itself leads to a diversity of perspectives, which is reflected when it’s time to deliberate.

Originally, evidence hearings were open to the public. But in 2006, California’s Supreme Court ruled in a landmark case, known as Copley, that law enforcement agents aren’t like other public employees. Namely, their personnel records are confidential.

In Oakland, Copley fundamentally changed the way the CPRB handles its business. The hearings were closed and the board lost its ability to track problem officers.

“The CPRB are not privy to the officer’s past complaints and findings,” says CPRB manager, Patrick Caceras. He says the board has to look at each case in a vacuum – they can’t know if an officer’s causing repeated problems.

Janice Embrey is an advocate for people who file complaints to the CPRB. She shows me a case file about two inches thick.

“This is how these get to me,” she says. “Redacted. A total of 20 pages redacted.”

Embrey’s been helping people prepare for their board hearings for three years. She says there are other problems with the privacy clause.

She doesn't always have access to the details of their cases – even basic details. Embrey says she once saw a case with the time of the incident blacked out. She couldn’t even tell if it happened during the day or at night.

“How is that in keeping with Copley?” she asks.

And there’s one more big issue. The police rep gets to sit in while the citizen testifies, but not vice versa – again, because of privacy.

So, practically speaking, this is how the process usually works. You submit a complaint, and wait to see if your case is one of the handful that gets a full investigation. If you do, that investigation can take a year to complete. At the end of that, you go before a board, where a police representative gets to hear your version of the story, but you can’t hear his. The board deliberates and makes a decision. In most cases, you’re likely to win. But that win is really just a recommendation. Ultimately, the city administrator reviews all the board’s decisions and consults with the chief of police about whether to discipline the officer.

And here’s the thing: the city administrator, currently, Deanna Santana, manages both the CPRB and the police department. So she has to balance the needs of both bodies when she reviews the board’s recommendations.

“I have to look at the case for its merits,” she says, “whether an employee should be disciplined and make decisions where sometimes there's lots of agreement between police department and CPRB, and where there's disagreement. And I also have to look at what's higher level risk management of where we're trying to drive organizational change.”

Janice Embrey and other citizen advocates see this as a conflict of interest. They worry that the process unfairly advantages the police department – that as the administrator, Santana is looking to minimize the city’s liability.

But Santana says that’s not true.

“More likely than not I agree with CPRB,” she says. “We looked at numbers I'm at about 76 percent agreement, 24 percent disagreement.”

If Santana agrees that a complaint should be upheld, the last step is consequences: anything from a written reprimand to termination, though that’s very rare. In 2012, the CPRB recommended discipline for nine officers. Santana upheld eight, but reversed the last one. That means one officer wasn’t punished, even though the board found evidence of misconduct. There’s no appeals process.

Everyone agrees having some civilian oversight is better than having none at all. Tom Moloney finally got his hearing this past January, after waiting about a year. But, he says, the experience was disappointing.

“I've come here tonight, despite having worked a 12-hour day, washed myself, put on a suit, made myself presentable, and the questions are curt,” he says. “The guy who's supposed to be in charge, doesn't seem to be a professional individual.”

At one point, he says he saw a board member fall asleep. He left the hearing feeling dejected. But two weeks later, he got a letter.

“To say we had in fact, they had ruled in our favor, which I was absolutely surprised,” Moloney says.

Two months later, OPD’s Internal Affairs Division also upheld Moloney’s complaints.

“There was also an explanation to say that they would be in contact later to say measures would be taken towards the officers regarding their behavior, lack of diligence in their process,” he says.

Moloney says he’s grateful for the opportunities he’s had: that the police department came out and helped him the night he was beaten and that the CPRB took his case and ultimately ruled in his favor. But he’s lost a lot of confidence in the system. And the most basic part of his complaint is still unresolved. When asked what would change his mind about Oakland’s dysfunctions, he says, “a police report.”

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