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Indybay Feature
BART Police Oversight Pushed Along in Assembly Committee on Public Safety Hearing, 9/27/11: audio
California State Assemblymember Tom Ammiano of San Francisco, Chair of the Public Safety Committee, called for an oversight hearing on "BART Police: Training Policies, and Procedures" on September 27th as a follow-up to previous Public Safety Committee hearings and the passage of AB1516 which created BART's police Auditor and Citizen Review Board (CRB). Ammiano was firm but not overly confrontational as he warned BART officials that disbanding or disarming BART police in future legislation was "on the table." Appearing at the hearing for BART was police chief Kenton Rainey, general manager Grace Crunican, police auditor Mark Smith, chair of the CRB George Perezvelez, vice-chair of the CRB Sharon Kidd, and CRB member Douglas Hambleton, a former Berkeley police chief inexplicably appointed to the board. Three speakers stepped forward to offer public comment at the end of the hearing: Cephus Johnson, Sister Beatrice Dale, and this reporter. [Full audio below]
[Pictured above: Inside the State Capital Building in Sacramento, Kenton Rainey, with Grace Crunican to his right, addresses Nancy Skinner (left at dais), and Tom Ammiano (center dais, under painting).]
I. Opening Remarks
Ammiano opened the hearing by flatly declaring that BART has been in the middle of a maelstrom over the last couple of months that could have been prevented. He noted that in 2009 he had called for a stronger version of civilian oversight, AB312, yet BART proposed its own "watered-down version" to the California state legislature. Ammiano asked, "Should there even be a BART police force, and should they be armed?" He said those options are on the table in consideration of any future legislation regarding BART police.
II. Progress Report on NOBLE Recommendations panel
Besides running through her work history, BART's new general manager Grace Crunican reports in her opening statement that she is satisfied with the progress she is aware of regarding implementation of the NOBLE recommendations, a process she indicated is expected to take several years. It is worth noting that it has already been two full years since the first draft version of the NOBLE report was presented to the BART board. She says that the chief delivers a status update twice a year to BART directors sitting on the BART police review committee and monthly to the CRB.
BART police chief Kenton Rainey reads a prepared statement as well. He reports that he is systematically implementing the NOBLE recommendations and highlights six related initiatives since he became chief in June 2010. The first was a total revision to the General Orders manual, adopting Lexipol's standardized policies and procedures. All updates moving forward will be vetted by the CRB. 2) NOBLE also recommended a training plan and Rainey says one has been created. California peace officers are required to attend 24 hours of Continued Professional Training (CPT) per year. BART officers are now required to complete 40 hours of CPT per year. The training includes arrest and control, defensive tactics, ethical decision making, incident response to terrorist bombings, first-aid, use of tasers, and electronic and projectile weapons. Last year, CPT included ethical decision making, racial profiling, communicating with youth, range and impact weapons, customer loyalty, crowd control, driving, and force options simulations in the range. Crisis Intervention Training (CIT) involves working with mental health professionals and families. Rainey says that over the last year, BART has taken into custody three mentally ill people a day. BART's twenty-four field officers have taken 40 hours of CIT in the last year and by the end of October another twenty officers will have received some CIT. BART officers are also receiving Leadership Development and Succession training. 3) NOBLE recommended pulling together a single use of force policy and creating a comprehensive reporting system for all use of force incidents. Rainey reports that this has been implemented. 4) NOBLE recommended a community outreach program. Rainey says that BART police have adopted the Department of Justice's COPS strategy (Community Oriented Policing Services) as a crime control strategy, and reports that he has reached out to the following "stakeholder" groups: the ACLU, the NAACP, local Bay Area ministers, and Cephus Johnson's 501c(3), the Oscar Grant Foundation. A specialized COPS unit in Rainey's office has also done work with the Make a Wish foundation, the Special Olympics, and Bay Area restaurants. 5) NOBLE recommended improvement around internal affairs complaints. NOBLE could only find thirteen complaints for all of 2008, which is a low number for the size of the BART PD. Rainey claims that BART has revamped the way the department receives and investigates citizen complaints, saying this is documented in the 2010 BART Police Internal Affairs annual report provided to committee members. Complaint forms are now available at "all of our report locations" and BART is placing complaint forms at station agent booths. The agency received sixty-six complaints in 2010. 6) NOBLE recommended that BART police adopt a more traditional disciplinary system which Rainey reports has been done, including a quarterly evaluation system, tying promotions to performance evaluations, and institution of an "early warning" computer system that can indicate when an officer may be experiencing performance problems.
Ammiano notes that he feels that his legislation for BART police oversight had more teeth, but that the committee and BART how have the other legislation that passed to work with. He says that he is doing a side-by-side comparison between the two pieces of legislation. Ammiano then asks Rainey a series of questions based on the NOBLE recommendations, seeking status updates on implementation.
Ammiano asks if a training committee has been formed as recommended. Rainey says that one has been created and that the department has been re-organized into three divisions which are represented on the committee. The committee has met three times over the last year, created a training plan that matches with each of BART police's specialized positions within the department, and have outlined essential, desirable, and mandatory training for each position.
Ammiano says that he was instrumental (as a city Supervisor) in getting mental health training for SFPD officers. Ammiano asks if either officer involved in the shooting death of Charles Hill had received CIT. As reported previously on Indybay, but for the first time in other news outlets after this latest Assembly hearing, neither officer on the platform with Charles Hill had been trained yet to deal with mental health issues that might arise within the BART system.
Ammiano references NOBLE's point that BART police received a lot of training around firearms but nothing related to defensive tactics. Defensive tactics are means to take persons into custody without using deadly force, including hands, OC spray, batons, and verbal coercion. Rainey lists trainings such as Arrest & Control and Ethical Decision Making Regarding Use of Force, saying officers are receiving ten hours of training in this area. Rainey also points to BART having adopted a mandatory carry of a taser for all officers, saying that officers are receiving ten hours of related training on the use of tasers. Ammiano reminds everyone of Johannes Mehserle's defense during his murder trial that he confused his gun and his taser when he shot Oscar Grant in the back. Rainey says that BART officers have gone from quarterly firearms training to bi-monthly which includes transitioning through all of the weapons on an officer's duty belt along with utilizing their firearm. Ammiano follows up by asking about jurisdictional conflicts between BART which now requires the carrying of tasers and SFPD that is currently does not have tasers but is debating their possible use by police. Rainey answers that each department has its own guidelines.
Related to the legal and ethical use of force training that NOBLE recommended happen at least once a year for all sworn officers, Ammiano inquired about consequences for officers who refused or avoided training -- be it training on use of force, mental health issues, or otherwise. Rainey said that there was no set disciplinary response for officers who missed training, that they would simply be rescheduled to complete the training at a later date. Ammiano asked if the officers would at least be removed from patrol duty and Rainey said they would.
There was discussion about the databases BART police used. Apparently BART used three separate databases previously and NOBLE recommended streamlining training records. Rainey says that BART is currently using an ACCESS database but will be moving entirely to a TMS database in the next month or two. NOBLE recommended against using TMS but Rainey says that he has found it useful in his past job experiences.
On use of force, NOBLE recommended a single policy and Rainey says that there is now one policy for all use of force incidents.
Ammiano notes that it wasn't part of mentions that the police officers who beat Kelly Thomas to death in Fullerton had cameras on their person. Rainey replies that the BART police department is currently beta testing the Vievu body cameras in order to record interactions with "suspects". A grant has been identified, Rainey says, to pay for cameras across the entire force. The cameras BART is looking at, while
Rainey says that BART police have a "robust" use of force reporting system. A sergeant has to immediately respond to the scene, conduct an investigation, including debriefing "suspects" upon whom force was used and doing a canvas for witnesses. The report created is then forward through the chain of command, starting with the lieutenant watch commander who must approve the use of force. The report is then forwarded to operations deputy chief who must comment on if the force is justified before the report is again forwarded to a use of force committee that reviews the incident and makes a determination on the force used. The report is delivered to the police chief for comment and then sent to Internal Affairs for final disposition.
On the two most recent killings by BART police, Rainey says that the Oakland police department and the Alameda County district attorney are conducting the investigation into the shooting death of Fred Collins on July 17th, 2010, near the Fruitvale BART station, who was killed by five police officers, two from BART and three from OPD. The identities of the officers and how many of them fired on Fred Collins is unknown. No explanation as to what is still being investigated in the killing of Fred Collins 15 months later was offered. As to the BART police killing of Charles Hill on July 3rd, 2011, inside of the Civic Center station, Rainey reiterates what has been publicly known since the shooting: that SFPD, the San Francisco district attorney's office, and BART's police auditor are conducting investigations. Rainey adds that BART police's internal affairs is conducting an administrative investigation to determine if any policies or procedures were violated in the deadly shooting.
Pulling a direct quote from the NOBLE report which highlighted a disturbing attitude amongst most BART police officers regarding discipline -- "Write me up... nothing will happen and it will be out of my file in nine months" -- Ammiano asks about the favoritism and unaccountability called out in the NOBLE report. Have the disciplinary procedures been consolidated as recommended by NOBLE? Further, has there been an attitude change in the department? Rainey claimed that "you get what you inspect," so BART is doing individual quarterly evaluations with all officers. Ammiano says that patterns must be identified and proper mentoring is crucial. Rainey says there is no longer disciplinary favoritism at BART. Rainey adds, related to a "brain drain" that occurs when officers reach fifty years of age "stampede" to retire with a "pretty good pension," that the agency faces succession issues and says that "premiere" training programs give officers a chance to learn "best practices" from other departments.
Assemblymember Nancy Skinner of Berkeley asks if standard police training is best for BART. BART faces perhaps larger issues with mental illness, especially during inclement weather when people might seek shelter in trains or stations. BART is a different environment than what regular police encounter; crowds on BART are constant. Rainey responds that he is an advocate of Crisis Intervention Training (CIT) and de-escalation. He says his officers receive forty hours of training per year, including training from the National Alliance on Mental Illness (NAMI). After Fred Collins was shot down, Rainey says he pushed for increased CIT, but NAMI training is only available a few times a year and police departments all over are "clamoring" for more CIT. Skinner asserts that the stress of dealing with a "perpetrator" is compounded by the presence of large crowds and may effect officer judgement during crises. Rainey asserts that the yearly training for officers includes crowd control training, then defensively adds that he wants to dispel "any rumor or myth" that BART police are different from other police, because they attend the same training as other departments. Skinner reiterates that she was talking about the circumstances faced by BART police, not BART police themselves.
Ammiano addresses another point from the NOBLE report, that BART officers preferred their patrol cars were not riding trains very often, leading to minimal contact with the public. Rainey says that that is a high priority. There are more officers patrolling within the BART system and, as a result, he is getting email complaints now about BART police txting while on duty or where they are standing on trains and in stations.
Ammiano asks about reports that members of "our friends in the fourth estate" were arrested at a BART protest on September 8th -- jokingly stating that while he "may fantasize about that from time to time" -- wanting Rainey to verify if it was true and what BART plans to do about it, because, he says, that kind of action will bring BART more heartache than the Assembly committee will. Rainey says that it was regrettable that the press was "detained" and that BART does have a policy in place. As he said at the BART board meeting on September 22nd, BART wants reporters to have credentials prominently displayed, "so that it eliminates any type of confusion." Rainey adds that he has meetings scheduled with editorial board members and new outlets the following day. When Rainey says he wants the media to cover what BART is doing, Ammiano interjects, "and not be scripted," a reference to the BART's media manipulation strategy on August 11th. Ammiano says the issue goes back to issues with training and crowds.
Back to use of force, Ammiano asks what are BART's internal affairs procedures. Rainey says one report goes directly to IA (which he didn't mention earlier) and one goes through the chain of command. He says that there have been instances where IA has alerted him that there is a problem with a report before it has reached his desk through the chain of command. If Rainey disagrees with the recommendations of the chain of command report, he can use his judgment to send it to IA for further review. The same procedures apply for use of force incidents with and without weapons.
BART does receive funding from the Department of Homeland Security, but none of that is necessarily earmarked for mental health or other police training. Rainey seems to indicate that funding is not an issue regarding BART police training when he notes that BART is the only agency he has worked for that has not told him to cut his budget.
Rainey reiterates that BART police have adopted the COPS strategy as a crime control strategy, requiring "customer service" training and working with the "stakeholders" in the district. Ammiano encourages more community outreach, noting problems with BART police's complaint process, in that it was available only online and only in English. The process should be accessible and not intimidating. Rainey says that BART is putting the complaint forms in station booths and is in the process of translating the forms to three additional languages.
Noting that Oakland police did an assessment the previous week about use of force and drawing of weapons, and it was concluded that 23% of the time it was not appropriate, Ammiano asks about what statistics are made available by BART police. Rainey says that he thinks the data is in the annual report, and if not then he can provide it.
Ammiano closes by saying that he has been comparing his legislation for BART police oversight with what passed and that he believes his would have had a more salubrious effect. He says he is open and hopeful, and understands that both Rainey and Crunican are new, but he doesn't want that to be an obstacle to the process moving forward. If there is to be any further legislation is totally open. The last incident was very difficult and Ammiano and others in the legislature were worried that the oversight legislation now in effect could lead to another shooting. So, when it did happen, their fallback was second-guessing that if the oversight had had teeth, then maybe this wouldn't have happened. It's not certain, but for years there has been neglect of this issue, back to when Ammiano was on the San Francisco Board of Supervisors and he was discussing oversight then. Civilian oversight is prickly but it's about transparency and accountability, not about bringing down police forces. "We don't want the fox guarding the hen house." There is still a long ways to go, but he is encouraged by Rainey's sense of commitment. If any legislation develops, Ammiano will work with BART.
Skinner closes by saying it has been a difficult year for BART. The Oscar Grant incident was not beneficial to BART or BART community relations, but many things were done to improve BART's standing in the community. The recent incidents were a big setback. While appreciating BART's concern that the protests did not endanger riders, the decision to cut off phone service and other responses were not appropriate and indicated that there was not a good understanding within BART police and management about how to deal with these types of crowds and protests. Given that there will continue to be crowds, and may continue to be protests, it needs to be better addressed.
An Assemblymember meeting with GM Grace Crunican will be scheduled.
III. Implementation of Police Oversight Entities panel
Ammiano starts by reviewing some of the NOBLE recommendations on civilian police oversight, which included that all appeals on complaints stop with the general manager, that the Auditor and members of the CRB should not be police officers or former officers, that the BART board should not appoint CRB members directly, and consistent training must be provided to CRB members. Ammiano says that he agrees with those recommendations and reiterates that the legislation he authored was stronger. Ammiano acknowledges that the Auditor was still looking for office space within BART when the Charles Hill shooting happened and it's probably taking some time to get going. That is understandable but also frustrating.
The auditor Mark Smith reads his prepared statement. He says he has held that job for three months. The auditor, or OIPA (Office of the Independent Police Auditor) as he refers to it, is in its infancy but important work has been done. The CRB is going now with public meetings, and he notes that they are volunteers. He says with the officer-involved shooting of Charles Hill that getting the CRB going as a "representative and mouthpiece" for the public as soon as possible was crucial. He adds that the CRB responded quickly to the BART board's request for input on the interruption of cell phone service on August 11th. Smith says the community needs information on how to utilize police oversight entities, so he has initiated a program to re-launch the OIPA to the public through meetings with "stakeholders" such as the Oscar Grant Foundation, other local police oversight organizations, and members of the National Lawyer's Guild, the ACLU, and PUEBLO. He has set up a single web page at BART's website and has a draft version of a complaint form separate from BART PD's complaint form. He has worked with BART's media relations on outreach opportunities and BART PD to learn their procedures by communicating with their internal affairs and studying tutorials on BART's closed-circuit television camera network. He praises BART PD's IA for their cooperation thus far. Smith has not yet hired staff for his office, including an investigator, but he says he has received 150 applications and will conduct interviews in the near future.
Ammiano says that he is concerned that there is no staff yet, noting that the storm of controversy lately has gone beyond police use of force to cell phones and scripted press conferences. Ammiano asks Smith if another use of force incident were to happen, fatal or not, would the auditor be ready to handle it without having to rely so much on IA. How independent will the role of auditor be? What commitment is there from the GM and the police that they will work with you? "So far we've gotten lip service," Ammiano notes. Smith said that he is confident that he will be "wholly" independent. Smith says that since the killing of Charles Hill that he has gotten a "mirror image" of everything that IA has, that they don't know anything he doesn't know. Smith says that he believes agency judgments regarding cell phone antennas or other issues are not central to his view of the oversight system. Ammiano interjects that there are downsides with the police auditor model, that they are "vulnerable to counter-intuitive decisions from on high." Ammiano says that the auditor should be at least kept in the loop regarding "mishegas" such as with the cell phones.
Skinner follows up with Smith by asking who hired him and to whom he directly reports. Smith answers that he reports to the BART board of directors and that he was a hire of the board.
Sharon Kidd, vice-chair of the CRB, says she believes the CRB will be an asset to the local communities, the BART board, and BART police. Bridging the gap between local communities and BART police is one of her top priorities. Kidd worked with the Oakland police department on a special task for seven years and served on the Berkeley Police Review Commission for five years. She says that the CRB has addresses all matters before it, including the police shooting of Charles Hill, with the highest level of competency and integrity. She says the primary focus of the CRB is to generate awareness about the availability of a forum where citizens can air and file complaints, review BART policies, learn about current updates, and suggest new policies that will be beneficial to BART, the directors, and the community. She is doing her first monthly BART ride-along on October 7th. The ride-alongs are intended to give the public an opportunity to get to know Kidd as well as provide Kidd an opportunity to educate the public about the purposes and goals of the CRB.
Ammiano asks Kidd is she feels like she is getting all of the information she needs to make decisions. She affirms that she feels she does.
George Perezvelez, chair of the CRB, speaks next. George Perezvelez was chair and vice-chair of the Berkeley Police Review Commission for seven years. Perezvelez notes that it took the death of Charles Hill to really get things going with citizen oversight at BART. (While the law authorizing the Auditor and CRB went into effect in January, members of the CRB were not appointed until March, and the first CRB meeting was not held until July 12th.) Perezvelez says regarding mutual aid agreements between departments that he has concerns about differences in policies between BART PD and SFPD, in matters such as the use of tasers, and that he believes those differences need to be looked at closely. Perezvelez openly disagrees with Smith and states that because procedures for oversight have not been fully developed that he does not believe the auditor and CRB are ready to take on new police incidents. There are no investigators, so all of the information would have to come from somewhere else. The CRB has no online presence to date, there have been no meetings on complaint forms and processes, so it is a challenge to gain credibility within the community as the CRB is caught up in trainings and developing bylaws.
Ammiano asks if Perezvelez feels he is getting information that is timely and accurate, or does he have to "read about it in the paper, like me." Perezvelez says that in the September 19th meeting of the CRB some members raised the idea of writing a letter to the SFPD to demanding answers about the status of the investigation on the Charles Hill shooting, but after a lengthy discussion it became apparent that the CRB is not empowered to make such a demand and it would have to go through the BART board of directors. "So, there isn't a lot of information coming" on the Hill investigation. He says that the CRB doesn't have a complaint or a witness to the complaint on the incident in San Francisco, so their hands are tied. He says that there are a lot of things that could be done to make the oversight model more effective. Perezvelez does say that information from BART has been forthcoming because BART realizes the need for the CRB to work with the police chief to make BART police more responsive. Ammiano adds that one would hope the BART board recognizes the things he is saying, but that if even within the limited scope of the CRB and the auditor that they can't make constructive criticism then why are we doing this if it's not working? Ammiano goes on to say that if there is not basic trust and politics reign over judgment, then that makes it very uncomfortable for the CRB and everyone. Ammiano says that having something on the web about the CRB and the auditor is not sufficient, and that they need to push for more. The more public scrutiny, the better. Even if the BART board were to repeat its negligent history, the CRB and auditor need to push for more scrutiny because the board is only as good as the information they receive and that needs to be independent. There doesn't need to be pressure on the CRB that their appointments might be rescinded, for instance. In the current oversight model, true independence isn't really there. The existence of the CRB and auditor is not enough. People need to be aware of the limitations in the current legislation, and perhaps transparency and accountability can help compensate. CRB members should not feel that you might be in trouble if you do this or do that. If you feel you are getting stonewalled, regardless of how new everyone is, that is your civic duty. Perezvelez says that the BART board is open and energetic about the CRB, naming directors Sweet and Radulovich as especially supportive, and says he didn't want to give the impression that the board was stonewalling. Ammiano responds that he was not asserting that but is speaking from experience. "The reason we're here is the BART board of directors were neglectful, I'll just say it," declares Ammiano, "and the previous police chief." Ammiano says that all the change at BART had to happen because of sanctions. "It's fine now that everyone had had a 'come to Jesus' thing about this issue, but the thing is that they didn't do anything for many, many years. Now that they are championing it, fine, but I want more than lip service. I want the real thing. I want accountability. And if we have to live with this legislation, then I want the optimum."
Skinner asserts that the the complaint process needs to be accessible. There may be other instances in the future where another jurisdiction conducts the investigation and that some of those issues may not require legislative updates but could be handled by the BART board. The BART board may want to set some boundaries on related communications or requests, but certainly, Skinner says, the CRB and auditor want the ability to make them directly and not have to wait for the next time the BART board meets.
Douglas Hambleton, a retired Berkeley police officer who started with the force in 1975 and was chief of police from 2005-2009, was inexplicably appointed to the CRB by BART director John McPartland. It was troubling enough that some of the most important aspects of BART's police oversight model were created behind closed doors, including the provision that BART Police Officers' Association and Police Management Association be granted one appointee, but additionally there was nothing written into the oversight model on the legislative end or in the BART board's implementation of it forbidding the appointment of police officers or ex-police officers (other than BART's police unions not being allowed to appoint a current police union member). And so we see in the very first iteration of the CRB at least two people who formerly worked for police agencies. At the Assembly hearing, Douglas Hambleton began by asserting his disagreement with the ignored NOBLE recommendation that former officers not serve on the CRB. Hambleton claims to have as much or more experience with civilian review than anyone, having voted in Berkeley for the creation of their Police Review Commission in 1972 before he became a police officer. He says he strongly supports civilian review, accountability, and an officer disciplinary process that goes all the way up the command chain. Hambleton notes, without saying their names, that BART's former GM Dorothy Dugger and police chief Gary Gee are now gone, and he adds that wasn't by happenstance. As for civilian review, he said it helps hold leaders accountable and the system in place has the potential for being very good for the BART police department, seeing how it plays out over the next year or so. Some things he is very impressed with, including Rainey's statements, his cooperation with the CRB, and his complete revising of the BART police policy manual. He is impressed with Rainey and the BART board's commitment to training. He says he doesn't know of any police department that is able to provide the level of funding for training that BART does. Hambleton is hopeful from the first steps, but he notes that the "proof is in the pudding." As the CRB and the auditor get into it and start examining responses to CRB suggestions, the complaints, the discipline, and the processes, we will see how well it is working.
Ammiano says he too is impressed, although he just doesn't know yet. Ammiano says he would defer to Hambleton's experience on a number of law enforcement issues, but asserts that the layman's perspective is important as well because it is the basis of assessment where people say, "I'm not quite with this, but I trust you." Historically, there has been a betrayal of the trust of the community. Ammiano makes plain -- "with all due respect" -- that he does not think that Hambleton has a place on the CRB. As a former police officer, Hambleton's role is more appropriate as an advisor. Ammiano said he originally recommended against having officers on the CRB because it is counterintuitive, and some of that is why there was "bloodshed" over the legislation in 2009. As Skinner said earlier, Ammiano states that he would prefer a non-legislative solution. He says there are other members who are concerned, who have transit systems with various expressions of enforcement in their districts, some utilizing private security. Ammiano says he's not with that at all, but wanted to make the point that there are options for BART as well to look at. Ammiano re-emphasizes his point about mentoring, noting the "newness" of many of BART's officers. He says that while they are having committee meetings, discussing the "proof in the pudding" and so forth, that he doesn't want another shooting. He compares it to the Golden Gate Bridge District board, who discussed a suicide barrier "year after year after year" while people kept jumping. Ammiano acknowledges no one can guarantee there will not be another shooting, but he asks, "What are we doing as we're planning?" Will the energy diminish over time? He wants the fire in the belly from the CRB, BART directors, the new general manager, and the police chief. Ammiano declares that he is pledged to minimize the uncertainty.
Skinner discloses that she supported Ammiano's legislation that more closely resembles Berkeley's and San Francisco's. She says she is agnostic on whether police should serve on the CRB. BART clearly would have been far better served to have had citizen review earlier on. While she can't say if citizen review has had fewer incidents because of the commission, Skinner says she believes it has improved the "corporate culture" of the Berkeley police department and helped to create a healthier relationship between police and the community. She notes that Berkeley has a large homeless population, a large mentally ill population, a large student population, and is a dense city. Berkeley has a lot of the same issues BART police have to deal with, although not the daily crowds in every circumstance, and yet has managed to avoid a lot of the incidents BART unfortunately has not avoided. Skinner says that much of Ammiano's frustration is based in that he has wanted this for a long time coming. What we all want, she says, is for the auditor and the CRB's presence to help BART establish a new corporate culture around public safety and its relationship to riders.
IV. Public Comment
Sister Beatrice Dale applauds the efforts of the committee and the board to hold BART accountable. She says that she supported Ammiano's bill, and not the one created by BART. Sister Beatrice says that the one time Oscar Grant's mother Wanda Johnson came to a BART board meeting shortly after the murder of her son in 2009, she asked for was more training so it would not happen again, and when the latest killing happened it was devastating. She emphasizes the importance of training in breaking a problematic mindset amongst police. Sister Beatrice says that she participated in a BART police training where the trainer discussed a nightclub called "Country Boogie" that under new owners changed its name to "Boogie". The trainer showed photos of the "nice, older, caucasians" square dancing at the bar under the first name and then a list of supposed calls to police for stabbings and murders under the second name. From the recounting, the implication is that the trainer was attempting to make a racial connection to crime at the location. Sister Beatrice uses the story to illustrate that if the police mindset is not changed then training will accomplish nothing.
This reporter spoke next. I say that I'm speaking because I personally have become part of the story. I explain that while I understand the committee's hesitance to revisit legislation, I think it might come to that because there are issues bigger than training. BART tends to act often as if it is its own country because it is not accountable to a city council or a mayor. I acknowledge the importance of holding the public safety hearing. The BART board of directors is part-time so they don't properly oversee what happens there. Many times they are primarily rubber-stamping financial decisions. I say that I'm concerned about some of the culture that is still going on at BART. The police department prior to August 11th sent out an email to BART administrators asking for "good or bad, constitutional or unconstitutional" solutions to dealing with protests. I don't feel it's appropriate for police to be sending out emails asking for unconstitutional solutions. And they've been acting in that regard as well, arresting protesters for exercising free speech rights. Knowing that I am a journalist critical of BART, BART police arrested me under orders from their deputy chief, putting me in handcuffs for three hours and sending me to 850 Bryant. I say that from the Auditor and CRB meetings I have attended, I am not encouraged. To Ammiano's question about independence, I say that it seems as though they feel their role is more to act as a PR buffer for BART than it is to actually take on a confrontational role when appropriate. For instance on September 2nd, when the CRB was asked by a public speaker to look into legal ramifications of chief Rainey's decision to cut off cell phone service, auditor Mark Smith said that no, it is was a matter for BART's general counsel. That's not really independence if it is just referred back to the general counsel.
Ammiano responds that legislators would want to be extremely deliberative about future legislation but it is a strong option.
Oscar Grant's uncle, Cephus "Uncle Bobby" Johnson, addresses the committee as the final public speaker and says that he, too, supported Ammiano's bill at the time. Regarding civilian oversight, Cephus reads from a section of the NOBLE report which says that oversight should not be rushed, which it was by the BART board that wanted to have something passed within a year of Oscar Grant's murder by BART officer Johannes Mehserle. The idea expressed at the time was just to pass something fast, and if it didn't have teeth then it could be built upon later. Cephus says that he looks at the hearing as a chance to build upon the toothless oversight committee that currently exists. Cephus suggests that most training is not useful because it is done in a controlled environment and "unrehearsed" training might prove more helpful in preparing for real world situations. Cephus says that he has a relationship with chief Rainey and believes that he is a good chief who want to make change. He says that he knows BART's community relations officer Roderick Lee and that the new GM Grace Crunican has offered to meet with the family. Cephus says that the intentions seems good now but that the BART police culture needs to change from top to bottom. Wanting to look good to the community at all costs is shameful and builds a distrust with the community. Again, Cephus reads from the NOBLE report, where it calls out that BART was unable to provide data on all of its police contacts, but the data that was available suggested a disproportionate amount of contact with African Americans and Hispanic Americans. At the time of the report, BART police did not have a policy in place regarding racial profiling, nor had they ever in their history. Cephus says that to his knowledge there is still no such policy. He asks what teeth does the CRB have to bring about necessary policy changes? He also concurs with others that a former police officer should not be a member of the CRB. "I don't know how he slipped in there." The belief that all police officers are good, should not taint the CRB. And because bad officers are allowed to get away with what they want, that makes all police look bad. Community confidence is hurt when it is revealed that BART is paying for scripted people to come to a press conference -- that discredits BART as an agency that truly cares about change and the betterment of the community. Cephus declares that during protests, no BART employee should be touching protesters as green vested employees did on July 11th. BART employees who do that should be fired because they are risking serious injury to protesters.
Cephus apologizes to the committee for getting "a little excited" and Ammiano replies that he welcomes it. Cephus says that it is important to look at the progress that has been made since the NOBLE and Meyers Nave reports. Cosmetically some things have changed but internally there is still much work to be done. Ammiano says in regard to Cephus' nephew and the others, and to the BART police, the committee is pledged to respect those memories and they don't want it to happen again. Things can slip between the cracks, and he commends Cephus because it is a duty of the populace to report if they are on the right track. If there is a certain mindset about a certain ethnic group, then that is going to creep into the actions of police. If there's not a policy around that, we're going to see the Country Boogie/Boogie. It's a wonderful and deep analogy.
Public comment ends after Cephus reads a statement from Minister Keith Muhammad who could not attend the hearing. Minister Keith reports being disappointed that the CRB is still waiting to take action and points out that the SFPD investigation into the killing of Charles Hill is being conducted outside of BART but it is not really independent.
Skinner closes the hearing by expressing sympathy for the Grant family having to confront incidents that keep happening. She notes that Ammiano's legislation was born of frustration that BART's corporate culture was not responsive or appropriate for the Bay Area community as a whole. The onus is now on BART, on the BART board, on the new general manager, and on the CRB. BART has the ability, without the assembly forcing them to, change their corporate culture -- and that's what the committee is expecting. As for the training, she says that we live in a very racist culture. That's shown in the nature of our sentencing laws, our popular culture, you name it. She says no matter what our roles, a legislative role, a public safety role, we need to be "untrained" and understand how those factors play in. She tells a story from her experience on the Berkeley city council about having seen a number of riots over the decades, prominently caucasian riots, some related to People's Park or the "anarchist convention" in San Francisco -- many with injuries, deaths, fires, or property destruction -- yet, other than when Ronald Reagan was governor and sent in the National Guard, there have never been calls for curfews except for after the riots related to the Rodney King beating. Why? Because there was unsaid concern that it would be a racial riot. These kinds of things are just there in our culture and we have to re-learn. Skinner pledges whatever assistance to BART to confront the circumstances that it is facing, improving its relationships with the community, and addressing its corporate culture.
Report from April 14th, 2009 Public Safety Committee hearing on AB312: audio
http://www.indybay.org/newsitems/2009/04/20/18590528.php#18590530
CA Assembly Hearing on BART's Deeply Inept, Reckless, and Corrupt Police Force, 10/20/09: audio and PDFs
http://www.indybay.org/newsitems/2009/10/27/18626905.php
Indybay Coverage of the Justice for Oscar Grant Movement:
I. Opening Remarks
Ammiano opened the hearing by flatly declaring that BART has been in the middle of a maelstrom over the last couple of months that could have been prevented. He noted that in 2009 he had called for a stronger version of civilian oversight, AB312, yet BART proposed its own "watered-down version" to the California state legislature. Ammiano asked, "Should there even be a BART police force, and should they be armed?" He said those options are on the table in consideration of any future legislation regarding BART police.
II. Progress Report on NOBLE Recommendations panel
Besides running through her work history, BART's new general manager Grace Crunican reports in her opening statement that she is satisfied with the progress she is aware of regarding implementation of the NOBLE recommendations, a process she indicated is expected to take several years. It is worth noting that it has already been two full years since the first draft version of the NOBLE report was presented to the BART board. She says that the chief delivers a status update twice a year to BART directors sitting on the BART police review committee and monthly to the CRB.
BART police chief Kenton Rainey reads a prepared statement as well. He reports that he is systematically implementing the NOBLE recommendations and highlights six related initiatives since he became chief in June 2010. The first was a total revision to the General Orders manual, adopting Lexipol's standardized policies and procedures. All updates moving forward will be vetted by the CRB. 2) NOBLE also recommended a training plan and Rainey says one has been created. California peace officers are required to attend 24 hours of Continued Professional Training (CPT) per year. BART officers are now required to complete 40 hours of CPT per year. The training includes arrest and control, defensive tactics, ethical decision making, incident response to terrorist bombings, first-aid, use of tasers, and electronic and projectile weapons. Last year, CPT included ethical decision making, racial profiling, communicating with youth, range and impact weapons, customer loyalty, crowd control, driving, and force options simulations in the range. Crisis Intervention Training (CIT) involves working with mental health professionals and families. Rainey says that over the last year, BART has taken into custody three mentally ill people a day. BART's twenty-four field officers have taken 40 hours of CIT in the last year and by the end of October another twenty officers will have received some CIT. BART officers are also receiving Leadership Development and Succession training. 3) NOBLE recommended pulling together a single use of force policy and creating a comprehensive reporting system for all use of force incidents. Rainey reports that this has been implemented. 4) NOBLE recommended a community outreach program. Rainey says that BART police have adopted the Department of Justice's COPS strategy (Community Oriented Policing Services) as a crime control strategy, and reports that he has reached out to the following "stakeholder" groups: the ACLU, the NAACP, local Bay Area ministers, and Cephus Johnson's 501c(3), the Oscar Grant Foundation. A specialized COPS unit in Rainey's office has also done work with the Make a Wish foundation, the Special Olympics, and Bay Area restaurants. 5) NOBLE recommended improvement around internal affairs complaints. NOBLE could only find thirteen complaints for all of 2008, which is a low number for the size of the BART PD. Rainey claims that BART has revamped the way the department receives and investigates citizen complaints, saying this is documented in the 2010 BART Police Internal Affairs annual report provided to committee members. Complaint forms are now available at "all of our report locations" and BART is placing complaint forms at station agent booths. The agency received sixty-six complaints in 2010. 6) NOBLE recommended that BART police adopt a more traditional disciplinary system which Rainey reports has been done, including a quarterly evaluation system, tying promotions to performance evaluations, and institution of an "early warning" computer system that can indicate when an officer may be experiencing performance problems.
Ammiano notes that he feels that his legislation for BART police oversight had more teeth, but that the committee and BART how have the other legislation that passed to work with. He says that he is doing a side-by-side comparison between the two pieces of legislation. Ammiano then asks Rainey a series of questions based on the NOBLE recommendations, seeking status updates on implementation.
Ammiano asks if a training committee has been formed as recommended. Rainey says that one has been created and that the department has been re-organized into three divisions which are represented on the committee. The committee has met three times over the last year, created a training plan that matches with each of BART police's specialized positions within the department, and have outlined essential, desirable, and mandatory training for each position.
Ammiano says that he was instrumental (as a city Supervisor) in getting mental health training for SFPD officers. Ammiano asks if either officer involved in the shooting death of Charles Hill had received CIT. As reported previously on Indybay, but for the first time in other news outlets after this latest Assembly hearing, neither officer on the platform with Charles Hill had been trained yet to deal with mental health issues that might arise within the BART system.
Ammiano references NOBLE's point that BART police received a lot of training around firearms but nothing related to defensive tactics. Defensive tactics are means to take persons into custody without using deadly force, including hands, OC spray, batons, and verbal coercion. Rainey lists trainings such as Arrest & Control and Ethical Decision Making Regarding Use of Force, saying officers are receiving ten hours of training in this area. Rainey also points to BART having adopted a mandatory carry of a taser for all officers, saying that officers are receiving ten hours of related training on the use of tasers. Ammiano reminds everyone of Johannes Mehserle's defense during his murder trial that he confused his gun and his taser when he shot Oscar Grant in the back. Rainey says that BART officers have gone from quarterly firearms training to bi-monthly which includes transitioning through all of the weapons on an officer's duty belt along with utilizing their firearm. Ammiano follows up by asking about jurisdictional conflicts between BART which now requires the carrying of tasers and SFPD that is currently does not have tasers but is debating their possible use by police. Rainey answers that each department has its own guidelines.
Related to the legal and ethical use of force training that NOBLE recommended happen at least once a year for all sworn officers, Ammiano inquired about consequences for officers who refused or avoided training -- be it training on use of force, mental health issues, or otherwise. Rainey said that there was no set disciplinary response for officers who missed training, that they would simply be rescheduled to complete the training at a later date. Ammiano asked if the officers would at least be removed from patrol duty and Rainey said they would.
There was discussion about the databases BART police used. Apparently BART used three separate databases previously and NOBLE recommended streamlining training records. Rainey says that BART is currently using an ACCESS database but will be moving entirely to a TMS database in the next month or two. NOBLE recommended against using TMS but Rainey says that he has found it useful in his past job experiences.
On use of force, NOBLE recommended a single policy and Rainey says that there is now one policy for all use of force incidents.
Ammiano notes that it wasn't part of mentions that the police officers who beat Kelly Thomas to death in Fullerton had cameras on their person. Rainey replies that the BART police department is currently beta testing the Vievu body cameras in order to record interactions with "suspects". A grant has been identified, Rainey says, to pay for cameras across the entire force. The cameras BART is looking at, while
Rainey says that BART police have a "robust" use of force reporting system. A sergeant has to immediately respond to the scene, conduct an investigation, including debriefing "suspects" upon whom force was used and doing a canvas for witnesses. The report created is then forward through the chain of command, starting with the lieutenant watch commander who must approve the use of force. The report is then forwarded to operations deputy chief who must comment on if the force is justified before the report is again forwarded to a use of force committee that reviews the incident and makes a determination on the force used. The report is delivered to the police chief for comment and then sent to Internal Affairs for final disposition.
On the two most recent killings by BART police, Rainey says that the Oakland police department and the Alameda County district attorney are conducting the investigation into the shooting death of Fred Collins on July 17th, 2010, near the Fruitvale BART station, who was killed by five police officers, two from BART and three from OPD. The identities of the officers and how many of them fired on Fred Collins is unknown. No explanation as to what is still being investigated in the killing of Fred Collins 15 months later was offered. As to the BART police killing of Charles Hill on July 3rd, 2011, inside of the Civic Center station, Rainey reiterates what has been publicly known since the shooting: that SFPD, the San Francisco district attorney's office, and BART's police auditor are conducting investigations. Rainey adds that BART police's internal affairs is conducting an administrative investigation to determine if any policies or procedures were violated in the deadly shooting.
Pulling a direct quote from the NOBLE report which highlighted a disturbing attitude amongst most BART police officers regarding discipline -- "Write me up... nothing will happen and it will be out of my file in nine months" -- Ammiano asks about the favoritism and unaccountability called out in the NOBLE report. Have the disciplinary procedures been consolidated as recommended by NOBLE? Further, has there been an attitude change in the department? Rainey claimed that "you get what you inspect," so BART is doing individual quarterly evaluations with all officers. Ammiano says that patterns must be identified and proper mentoring is crucial. Rainey says there is no longer disciplinary favoritism at BART. Rainey adds, related to a "brain drain" that occurs when officers reach fifty years of age "stampede" to retire with a "pretty good pension," that the agency faces succession issues and says that "premiere" training programs give officers a chance to learn "best practices" from other departments.
Assemblymember Nancy Skinner of Berkeley asks if standard police training is best for BART. BART faces perhaps larger issues with mental illness, especially during inclement weather when people might seek shelter in trains or stations. BART is a different environment than what regular police encounter; crowds on BART are constant. Rainey responds that he is an advocate of Crisis Intervention Training (CIT) and de-escalation. He says his officers receive forty hours of training per year, including training from the National Alliance on Mental Illness (NAMI). After Fred Collins was shot down, Rainey says he pushed for increased CIT, but NAMI training is only available a few times a year and police departments all over are "clamoring" for more CIT. Skinner asserts that the stress of dealing with a "perpetrator" is compounded by the presence of large crowds and may effect officer judgement during crises. Rainey asserts that the yearly training for officers includes crowd control training, then defensively adds that he wants to dispel "any rumor or myth" that BART police are different from other police, because they attend the same training as other departments. Skinner reiterates that she was talking about the circumstances faced by BART police, not BART police themselves.
Ammiano addresses another point from the NOBLE report, that BART officers preferred their patrol cars were not riding trains very often, leading to minimal contact with the public. Rainey says that that is a high priority. There are more officers patrolling within the BART system and, as a result, he is getting email complaints now about BART police txting while on duty or where they are standing on trains and in stations.
Ammiano asks about reports that members of "our friends in the fourth estate" were arrested at a BART protest on September 8th -- jokingly stating that while he "may fantasize about that from time to time" -- wanting Rainey to verify if it was true and what BART plans to do about it, because, he says, that kind of action will bring BART more heartache than the Assembly committee will. Rainey says that it was regrettable that the press was "detained" and that BART does have a policy in place. As he said at the BART board meeting on September 22nd, BART wants reporters to have credentials prominently displayed, "so that it eliminates any type of confusion." Rainey adds that he has meetings scheduled with editorial board members and new outlets the following day. When Rainey says he wants the media to cover what BART is doing, Ammiano interjects, "and not be scripted," a reference to the BART's media manipulation strategy on August 11th. Ammiano says the issue goes back to issues with training and crowds.
Back to use of force, Ammiano asks what are BART's internal affairs procedures. Rainey says one report goes directly to IA (which he didn't mention earlier) and one goes through the chain of command. He says that there have been instances where IA has alerted him that there is a problem with a report before it has reached his desk through the chain of command. If Rainey disagrees with the recommendations of the chain of command report, he can use his judgment to send it to IA for further review. The same procedures apply for use of force incidents with and without weapons.
BART does receive funding from the Department of Homeland Security, but none of that is necessarily earmarked for mental health or other police training. Rainey seems to indicate that funding is not an issue regarding BART police training when he notes that BART is the only agency he has worked for that has not told him to cut his budget.
Rainey reiterates that BART police have adopted the COPS strategy as a crime control strategy, requiring "customer service" training and working with the "stakeholders" in the district. Ammiano encourages more community outreach, noting problems with BART police's complaint process, in that it was available only online and only in English. The process should be accessible and not intimidating. Rainey says that BART is putting the complaint forms in station booths and is in the process of translating the forms to three additional languages.
Noting that Oakland police did an assessment the previous week about use of force and drawing of weapons, and it was concluded that 23% of the time it was not appropriate, Ammiano asks about what statistics are made available by BART police. Rainey says that he thinks the data is in the annual report, and if not then he can provide it.
Ammiano closes by saying that he has been comparing his legislation for BART police oversight with what passed and that he believes his would have had a more salubrious effect. He says he is open and hopeful, and understands that both Rainey and Crunican are new, but he doesn't want that to be an obstacle to the process moving forward. If there is to be any further legislation is totally open. The last incident was very difficult and Ammiano and others in the legislature were worried that the oversight legislation now in effect could lead to another shooting. So, when it did happen, their fallback was second-guessing that if the oversight had had teeth, then maybe this wouldn't have happened. It's not certain, but for years there has been neglect of this issue, back to when Ammiano was on the San Francisco Board of Supervisors and he was discussing oversight then. Civilian oversight is prickly but it's about transparency and accountability, not about bringing down police forces. "We don't want the fox guarding the hen house." There is still a long ways to go, but he is encouraged by Rainey's sense of commitment. If any legislation develops, Ammiano will work with BART.
Skinner closes by saying it has been a difficult year for BART. The Oscar Grant incident was not beneficial to BART or BART community relations, but many things were done to improve BART's standing in the community. The recent incidents were a big setback. While appreciating BART's concern that the protests did not endanger riders, the decision to cut off phone service and other responses were not appropriate and indicated that there was not a good understanding within BART police and management about how to deal with these types of crowds and protests. Given that there will continue to be crowds, and may continue to be protests, it needs to be better addressed.
An Assemblymember meeting with GM Grace Crunican will be scheduled.
III. Implementation of Police Oversight Entities panel
Ammiano starts by reviewing some of the NOBLE recommendations on civilian police oversight, which included that all appeals on complaints stop with the general manager, that the Auditor and members of the CRB should not be police officers or former officers, that the BART board should not appoint CRB members directly, and consistent training must be provided to CRB members. Ammiano says that he agrees with those recommendations and reiterates that the legislation he authored was stronger. Ammiano acknowledges that the Auditor was still looking for office space within BART when the Charles Hill shooting happened and it's probably taking some time to get going. That is understandable but also frustrating.
The auditor Mark Smith reads his prepared statement. He says he has held that job for three months. The auditor, or OIPA (Office of the Independent Police Auditor) as he refers to it, is in its infancy but important work has been done. The CRB is going now with public meetings, and he notes that they are volunteers. He says with the officer-involved shooting of Charles Hill that getting the CRB going as a "representative and mouthpiece" for the public as soon as possible was crucial. He adds that the CRB responded quickly to the BART board's request for input on the interruption of cell phone service on August 11th. Smith says the community needs information on how to utilize police oversight entities, so he has initiated a program to re-launch the OIPA to the public through meetings with "stakeholders" such as the Oscar Grant Foundation, other local police oversight organizations, and members of the National Lawyer's Guild, the ACLU, and PUEBLO. He has set up a single web page at BART's website and has a draft version of a complaint form separate from BART PD's complaint form. He has worked with BART's media relations on outreach opportunities and BART PD to learn their procedures by communicating with their internal affairs and studying tutorials on BART's closed-circuit television camera network. He praises BART PD's IA for their cooperation thus far. Smith has not yet hired staff for his office, including an investigator, but he says he has received 150 applications and will conduct interviews in the near future.
Ammiano says that he is concerned that there is no staff yet, noting that the storm of controversy lately has gone beyond police use of force to cell phones and scripted press conferences. Ammiano asks Smith if another use of force incident were to happen, fatal or not, would the auditor be ready to handle it without having to rely so much on IA. How independent will the role of auditor be? What commitment is there from the GM and the police that they will work with you? "So far we've gotten lip service," Ammiano notes. Smith said that he is confident that he will be "wholly" independent. Smith says that since the killing of Charles Hill that he has gotten a "mirror image" of everything that IA has, that they don't know anything he doesn't know. Smith says that he believes agency judgments regarding cell phone antennas or other issues are not central to his view of the oversight system. Ammiano interjects that there are downsides with the police auditor model, that they are "vulnerable to counter-intuitive decisions from on high." Ammiano says that the auditor should be at least kept in the loop regarding "mishegas" such as with the cell phones.
Skinner follows up with Smith by asking who hired him and to whom he directly reports. Smith answers that he reports to the BART board of directors and that he was a hire of the board.
Sharon Kidd, vice-chair of the CRB, says she believes the CRB will be an asset to the local communities, the BART board, and BART police. Bridging the gap between local communities and BART police is one of her top priorities. Kidd worked with the Oakland police department on a special task for seven years and served on the Berkeley Police Review Commission for five years. She says that the CRB has addresses all matters before it, including the police shooting of Charles Hill, with the highest level of competency and integrity. She says the primary focus of the CRB is to generate awareness about the availability of a forum where citizens can air and file complaints, review BART policies, learn about current updates, and suggest new policies that will be beneficial to BART, the directors, and the community. She is doing her first monthly BART ride-along on October 7th. The ride-alongs are intended to give the public an opportunity to get to know Kidd as well as provide Kidd an opportunity to educate the public about the purposes and goals of the CRB.
Ammiano asks Kidd is she feels like she is getting all of the information she needs to make decisions. She affirms that she feels she does.
George Perezvelez, chair of the CRB, speaks next. George Perezvelez was chair and vice-chair of the Berkeley Police Review Commission for seven years. Perezvelez notes that it took the death of Charles Hill to really get things going with citizen oversight at BART. (While the law authorizing the Auditor and CRB went into effect in January, members of the CRB were not appointed until March, and the first CRB meeting was not held until July 12th.) Perezvelez says regarding mutual aid agreements between departments that he has concerns about differences in policies between BART PD and SFPD, in matters such as the use of tasers, and that he believes those differences need to be looked at closely. Perezvelez openly disagrees with Smith and states that because procedures for oversight have not been fully developed that he does not believe the auditor and CRB are ready to take on new police incidents. There are no investigators, so all of the information would have to come from somewhere else. The CRB has no online presence to date, there have been no meetings on complaint forms and processes, so it is a challenge to gain credibility within the community as the CRB is caught up in trainings and developing bylaws.
Ammiano asks if Perezvelez feels he is getting information that is timely and accurate, or does he have to "read about it in the paper, like me." Perezvelez says that in the September 19th meeting of the CRB some members raised the idea of writing a letter to the SFPD to demanding answers about the status of the investigation on the Charles Hill shooting, but after a lengthy discussion it became apparent that the CRB is not empowered to make such a demand and it would have to go through the BART board of directors. "So, there isn't a lot of information coming" on the Hill investigation. He says that the CRB doesn't have a complaint or a witness to the complaint on the incident in San Francisco, so their hands are tied. He says that there are a lot of things that could be done to make the oversight model more effective. Perezvelez does say that information from BART has been forthcoming because BART realizes the need for the CRB to work with the police chief to make BART police more responsive. Ammiano adds that one would hope the BART board recognizes the things he is saying, but that if even within the limited scope of the CRB and the auditor that they can't make constructive criticism then why are we doing this if it's not working? Ammiano goes on to say that if there is not basic trust and politics reign over judgment, then that makes it very uncomfortable for the CRB and everyone. Ammiano says that having something on the web about the CRB and the auditor is not sufficient, and that they need to push for more. The more public scrutiny, the better. Even if the BART board were to repeat its negligent history, the CRB and auditor need to push for more scrutiny because the board is only as good as the information they receive and that needs to be independent. There doesn't need to be pressure on the CRB that their appointments might be rescinded, for instance. In the current oversight model, true independence isn't really there. The existence of the CRB and auditor is not enough. People need to be aware of the limitations in the current legislation, and perhaps transparency and accountability can help compensate. CRB members should not feel that you might be in trouble if you do this or do that. If you feel you are getting stonewalled, regardless of how new everyone is, that is your civic duty. Perezvelez says that the BART board is open and energetic about the CRB, naming directors Sweet and Radulovich as especially supportive, and says he didn't want to give the impression that the board was stonewalling. Ammiano responds that he was not asserting that but is speaking from experience. "The reason we're here is the BART board of directors were neglectful, I'll just say it," declares Ammiano, "and the previous police chief." Ammiano says that all the change at BART had to happen because of sanctions. "It's fine now that everyone had had a 'come to Jesus' thing about this issue, but the thing is that they didn't do anything for many, many years. Now that they are championing it, fine, but I want more than lip service. I want the real thing. I want accountability. And if we have to live with this legislation, then I want the optimum."
Skinner asserts that the the complaint process needs to be accessible. There may be other instances in the future where another jurisdiction conducts the investigation and that some of those issues may not require legislative updates but could be handled by the BART board. The BART board may want to set some boundaries on related communications or requests, but certainly, Skinner says, the CRB and auditor want the ability to make them directly and not have to wait for the next time the BART board meets.
Douglas Hambleton, a retired Berkeley police officer who started with the force in 1975 and was chief of police from 2005-2009, was inexplicably appointed to the CRB by BART director John McPartland. It was troubling enough that some of the most important aspects of BART's police oversight model were created behind closed doors, including the provision that BART Police Officers' Association and Police Management Association be granted one appointee, but additionally there was nothing written into the oversight model on the legislative end or in the BART board's implementation of it forbidding the appointment of police officers or ex-police officers (other than BART's police unions not being allowed to appoint a current police union member). And so we see in the very first iteration of the CRB at least two people who formerly worked for police agencies. At the Assembly hearing, Douglas Hambleton began by asserting his disagreement with the ignored NOBLE recommendation that former officers not serve on the CRB. Hambleton claims to have as much or more experience with civilian review than anyone, having voted in Berkeley for the creation of their Police Review Commission in 1972 before he became a police officer. He says he strongly supports civilian review, accountability, and an officer disciplinary process that goes all the way up the command chain. Hambleton notes, without saying their names, that BART's former GM Dorothy Dugger and police chief Gary Gee are now gone, and he adds that wasn't by happenstance. As for civilian review, he said it helps hold leaders accountable and the system in place has the potential for being very good for the BART police department, seeing how it plays out over the next year or so. Some things he is very impressed with, including Rainey's statements, his cooperation with the CRB, and his complete revising of the BART police policy manual. He is impressed with Rainey and the BART board's commitment to training. He says he doesn't know of any police department that is able to provide the level of funding for training that BART does. Hambleton is hopeful from the first steps, but he notes that the "proof is in the pudding." As the CRB and the auditor get into it and start examining responses to CRB suggestions, the complaints, the discipline, and the processes, we will see how well it is working.
Ammiano says he too is impressed, although he just doesn't know yet. Ammiano says he would defer to Hambleton's experience on a number of law enforcement issues, but asserts that the layman's perspective is important as well because it is the basis of assessment where people say, "I'm not quite with this, but I trust you." Historically, there has been a betrayal of the trust of the community. Ammiano makes plain -- "with all due respect" -- that he does not think that Hambleton has a place on the CRB. As a former police officer, Hambleton's role is more appropriate as an advisor. Ammiano said he originally recommended against having officers on the CRB because it is counterintuitive, and some of that is why there was "bloodshed" over the legislation in 2009. As Skinner said earlier, Ammiano states that he would prefer a non-legislative solution. He says there are other members who are concerned, who have transit systems with various expressions of enforcement in their districts, some utilizing private security. Ammiano says he's not with that at all, but wanted to make the point that there are options for BART as well to look at. Ammiano re-emphasizes his point about mentoring, noting the "newness" of many of BART's officers. He says that while they are having committee meetings, discussing the "proof in the pudding" and so forth, that he doesn't want another shooting. He compares it to the Golden Gate Bridge District board, who discussed a suicide barrier "year after year after year" while people kept jumping. Ammiano acknowledges no one can guarantee there will not be another shooting, but he asks, "What are we doing as we're planning?" Will the energy diminish over time? He wants the fire in the belly from the CRB, BART directors, the new general manager, and the police chief. Ammiano declares that he is pledged to minimize the uncertainty.
Skinner discloses that she supported Ammiano's legislation that more closely resembles Berkeley's and San Francisco's. She says she is agnostic on whether police should serve on the CRB. BART clearly would have been far better served to have had citizen review earlier on. While she can't say if citizen review has had fewer incidents because of the commission, Skinner says she believes it has improved the "corporate culture" of the Berkeley police department and helped to create a healthier relationship between police and the community. She notes that Berkeley has a large homeless population, a large mentally ill population, a large student population, and is a dense city. Berkeley has a lot of the same issues BART police have to deal with, although not the daily crowds in every circumstance, and yet has managed to avoid a lot of the incidents BART unfortunately has not avoided. Skinner says that much of Ammiano's frustration is based in that he has wanted this for a long time coming. What we all want, she says, is for the auditor and the CRB's presence to help BART establish a new corporate culture around public safety and its relationship to riders.
IV. Public Comment
Sister Beatrice Dale applauds the efforts of the committee and the board to hold BART accountable. She says that she supported Ammiano's bill, and not the one created by BART. Sister Beatrice says that the one time Oscar Grant's mother Wanda Johnson came to a BART board meeting shortly after the murder of her son in 2009, she asked for was more training so it would not happen again, and when the latest killing happened it was devastating. She emphasizes the importance of training in breaking a problematic mindset amongst police. Sister Beatrice says that she participated in a BART police training where the trainer discussed a nightclub called "Country Boogie" that under new owners changed its name to "Boogie". The trainer showed photos of the "nice, older, caucasians" square dancing at the bar under the first name and then a list of supposed calls to police for stabbings and murders under the second name. From the recounting, the implication is that the trainer was attempting to make a racial connection to crime at the location. Sister Beatrice uses the story to illustrate that if the police mindset is not changed then training will accomplish nothing.
This reporter spoke next. I say that I'm speaking because I personally have become part of the story. I explain that while I understand the committee's hesitance to revisit legislation, I think it might come to that because there are issues bigger than training. BART tends to act often as if it is its own country because it is not accountable to a city council or a mayor. I acknowledge the importance of holding the public safety hearing. The BART board of directors is part-time so they don't properly oversee what happens there. Many times they are primarily rubber-stamping financial decisions. I say that I'm concerned about some of the culture that is still going on at BART. The police department prior to August 11th sent out an email to BART administrators asking for "good or bad, constitutional or unconstitutional" solutions to dealing with protests. I don't feel it's appropriate for police to be sending out emails asking for unconstitutional solutions. And they've been acting in that regard as well, arresting protesters for exercising free speech rights. Knowing that I am a journalist critical of BART, BART police arrested me under orders from their deputy chief, putting me in handcuffs for three hours and sending me to 850 Bryant. I say that from the Auditor and CRB meetings I have attended, I am not encouraged. To Ammiano's question about independence, I say that it seems as though they feel their role is more to act as a PR buffer for BART than it is to actually take on a confrontational role when appropriate. For instance on September 2nd, when the CRB was asked by a public speaker to look into legal ramifications of chief Rainey's decision to cut off cell phone service, auditor Mark Smith said that no, it is was a matter for BART's general counsel. That's not really independence if it is just referred back to the general counsel.
Ammiano responds that legislators would want to be extremely deliberative about future legislation but it is a strong option.
Oscar Grant's uncle, Cephus "Uncle Bobby" Johnson, addresses the committee as the final public speaker and says that he, too, supported Ammiano's bill at the time. Regarding civilian oversight, Cephus reads from a section of the NOBLE report which says that oversight should not be rushed, which it was by the BART board that wanted to have something passed within a year of Oscar Grant's murder by BART officer Johannes Mehserle. The idea expressed at the time was just to pass something fast, and if it didn't have teeth then it could be built upon later. Cephus says that he looks at the hearing as a chance to build upon the toothless oversight committee that currently exists. Cephus suggests that most training is not useful because it is done in a controlled environment and "unrehearsed" training might prove more helpful in preparing for real world situations. Cephus says that he has a relationship with chief Rainey and believes that he is a good chief who want to make change. He says that he knows BART's community relations officer Roderick Lee and that the new GM Grace Crunican has offered to meet with the family. Cephus says that the intentions seems good now but that the BART police culture needs to change from top to bottom. Wanting to look good to the community at all costs is shameful and builds a distrust with the community. Again, Cephus reads from the NOBLE report, where it calls out that BART was unable to provide data on all of its police contacts, but the data that was available suggested a disproportionate amount of contact with African Americans and Hispanic Americans. At the time of the report, BART police did not have a policy in place regarding racial profiling, nor had they ever in their history. Cephus says that to his knowledge there is still no such policy. He asks what teeth does the CRB have to bring about necessary policy changes? He also concurs with others that a former police officer should not be a member of the CRB. "I don't know how he slipped in there." The belief that all police officers are good, should not taint the CRB. And because bad officers are allowed to get away with what they want, that makes all police look bad. Community confidence is hurt when it is revealed that BART is paying for scripted people to come to a press conference -- that discredits BART as an agency that truly cares about change and the betterment of the community. Cephus declares that during protests, no BART employee should be touching protesters as green vested employees did on July 11th. BART employees who do that should be fired because they are risking serious injury to protesters.
Cephus apologizes to the committee for getting "a little excited" and Ammiano replies that he welcomes it. Cephus says that it is important to look at the progress that has been made since the NOBLE and Meyers Nave reports. Cosmetically some things have changed but internally there is still much work to be done. Ammiano says in regard to Cephus' nephew and the others, and to the BART police, the committee is pledged to respect those memories and they don't want it to happen again. Things can slip between the cracks, and he commends Cephus because it is a duty of the populace to report if they are on the right track. If there is a certain mindset about a certain ethnic group, then that is going to creep into the actions of police. If there's not a policy around that, we're going to see the Country Boogie/Boogie. It's a wonderful and deep analogy.
Public comment ends after Cephus reads a statement from Minister Keith Muhammad who could not attend the hearing. Minister Keith reports being disappointed that the CRB is still waiting to take action and points out that the SFPD investigation into the killing of Charles Hill is being conducted outside of BART but it is not really independent.
Skinner closes the hearing by expressing sympathy for the Grant family having to confront incidents that keep happening. She notes that Ammiano's legislation was born of frustration that BART's corporate culture was not responsive or appropriate for the Bay Area community as a whole. The onus is now on BART, on the BART board, on the new general manager, and on the CRB. BART has the ability, without the assembly forcing them to, change their corporate culture -- and that's what the committee is expecting. As for the training, she says that we live in a very racist culture. That's shown in the nature of our sentencing laws, our popular culture, you name it. She says no matter what our roles, a legislative role, a public safety role, we need to be "untrained" and understand how those factors play in. She tells a story from her experience on the Berkeley city council about having seen a number of riots over the decades, prominently caucasian riots, some related to People's Park or the "anarchist convention" in San Francisco -- many with injuries, deaths, fires, or property destruction -- yet, other than when Ronald Reagan was governor and sent in the National Guard, there have never been calls for curfews except for after the riots related to the Rodney King beating. Why? Because there was unsaid concern that it would be a racial riot. These kinds of things are just there in our culture and we have to re-learn. Skinner pledges whatever assistance to BART to confront the circumstances that it is facing, improving its relationships with the community, and addressing its corporate culture.
Report from April 14th, 2009 Public Safety Committee hearing on AB312: audio
http://www.indybay.org/newsitems/2009/04/20/18590528.php#18590530
CA Assembly Hearing on BART's Deeply Inept, Reckless, and Corrupt Police Force, 10/20/09: audio and PDFs
http://www.indybay.org/newsitems/2009/10/27/18626905.php
Indybay Coverage of the Justice for Oscar Grant Movement:
For more information:
http://indybay.org/oscargrant
Listen now:
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BART police asked for ideas "good or bad, constitutional or unconstitutional"
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