Reject the “Exigency Clause” Measure — No Martial Law in Oakland

Dear Councilmembers Kalb, Bas, McElhaney, Thao, Gallo, Taylor, and Reid, Council President Kaplan, Mayor Schaaf, City Attorney Parker, Interim Police Chief Susan Manheimer , and City Administrator Reiskin:

I am writing to you of my concerns regarding the language in Section 604(b)5 of Measure LL which grants power to the police chief in direct contradiction to policy written by the Police Commission.

I am Oakland born and raised and returned to North Oakland, having lived in West Oakland, East Oakland, and the Hills. My parents migrated to Oakland with their parents during the Great Black Migration and have taught me the importance of voting which I have every year since I attained the legal voting age.

I have served as a volunteer board member for District 1 for the Community Policing Advisory Board, the Community Development Block Grant, and as Vice Chair of the Beat 10Y NCPC. I continue to volunteer on many community projects in the Santa Fe and Golden Gate neighborhoods. I am on the steering committee of the Coalition for Police Accountability and also co-chair one of its working committees. And I vote. I voted for Measure LL to provide oversight of the Oakland Police Department which has proved over and over again that they cannot or will not police themselves.

For decades, I have personally witnessed harm inflicted by Oakland police officers upon Black and Brown, poor, and homeless communities. It was and continues to be unacceptable. While there are many fine police officers in the Oakland Police Department, our department continues to be defined by:

• rogue cops,

• the Oakland Riders case,

• sexual abuse of a minor child by several officers,

Council President and All Councilpersons July 20, 2020 Page Two

• supervisors and chiefs who cover up officer committed crimes,

• promotions of officers who commit crimes,

• racial profiling of Black and Brown people,

• rude and disrespectful attitudes visited upon Black and Brown people,

• a burgeoning budget with no accountability,

• 17 years under federal oversight with no end in sight,

• lawsuits and settlements costing taxpayers millions of dollars,

• lack of trust by an increasing number of Oaklanders, and

• many other transgressions too numerous to recount here.

This latest attempt to override the Police Commission’s authority and permit City Council to give the police department the power to write its own policy under “exigent circumstances” for “public safety” is one more attempt to obstruct the Police Commission’s purpose. May I remind you that the Commission’s purpose is to “oversee the Oakland Police Department’s policies, practices, and customs to meet national standards of constitutional policing …” Granting the police chief the absolute power to dismiss the Police Commission’s use of force policy does not meet national standards of constitutional policing.

On Thursday, July 9, 2020, the Police Commission voted unanimously to ban chokeholds and carotid holds in their use of force policy. The police union’s immediate response was to carve out an exception to that policy. “Exigent circumstances” could mean anything the interim police chief deems “exigent.” We could have another George Floyd on our hands. This is completely unacceptable and cannot stand.

Additionally, the “exigent circumstances” exception would violate Oakland’s federal court settlement agreement with the National Lawyers Guild in the class action suit Spalding v. City of Oakland, No. CV11- 2867 TEH and the Campbell et al. v. City of Oakland, No. CV11-5498 JST case.

As part of both settlements, the City and OPD agreed to abide by a negotiated crowd control policy that prohibits impact munitions and explosives from being used in the manner they were used during the Occupy events, sets guidelines for constitutional policing of demonstrations and other crowd events; requires OPD to negotiate with the National Lawyers Guild and the American Civil Liberties Union concerning any revisions to the crowd control policy; and provides that the federal court will have the power to enforce compliance with the settlement, including crowd control policy, for up to seven years. The “exigent circumstances” provision flies in the face of those two cases.

Our most “exigent circumstance” is to rescue our civil rights and democracy despite moves toward autocracy in this country and now it appears in our City. Doing our local part requires resisting the panicked impulse to give more authority to officials in the absence of public oversight and legal protections.

We respectfully request that the entire proposed language in Section 604(b)5 be stricken before the measure is sent to the ballot. Any changes to policy, procedures, customs, or General Orders of the Department must be approved by the Police Commission.

Thank you for your courtesy and cooperation in this regard.

Very truly yours,

Cathy Leonard

Steering Committee, Coalition for Police Accountabiity

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Additonal Information on Exigent Circumstances

Attorney Larry White of the Coalition for Police Accountabiliy explains:

Re: Measure LL Clean-up Or Should We Say “Police Empowerment Measure?”

You are scheduled to consider the Measure LL clean up draft on Thursday, July 23. The intent was to strengthen the Police Commission. But the draft contains a “poison pill” that undermines the entire effort. You must delete it.

The so-called “exigency clause” (at the end of (b)5) is an unacceptable expansion of police power. “Exigent circumstances” could mean almost anything. Large protests, certainly, but much more than that. Any police use of force is a reaction to some level of such circumstances.

During “exigent circumstances” the police could overrule the civilian Police Commission and all existing rules (including Federally negotiated crowd control policies) that might restrain them. Tear gas, rubber bullets, flash bang grenades, choke holds—if the police chief wants these practices for a fourteen day period—long enough to “quell” protests or other “exigent circumstances” —they could be used.

Police officers who harmed Oakland residents under the police chief’s rules could not be disciplined and neither could the police chief for allowing those behaviors.

Could these powers be abused? Does anyone doubt that they would be? Some might say that the City Council will not grant the chief such powers. But even if you would not, no one can know what future Councils will do if the Charter allows it.

This is a potentially dramatic expansion of police power that has never before been considered necessary in Oakland. Why is it necessary now?

The Coalition for Police Accountability has worked for years to establish civilian oversight of the Oakland Police Department. The Measure LL clean up effort which we initiated and labored on for the past two years was meant to remedy some of the shortcomings of the initial measure. This effort was intended to enhance civilian oversight.

The “exigency clause” does the opposite. It carves out a critical area of policing and removes it from oversight.

If the Council deletes this clause, the Coalition will support the measure and work hard for its passage. If, however, the Council retains this “poison pill” the Coalition will oppose the measure and work to defeat it.

A ballot measure that contains the “exigency clause” is one that we would frame as a “Police Empowerment Measure.” Council members that vote for it will have to answer this simple question—“Why did you vote for the police and against the community?”

Public policy reasons should be enough for you to delete the clause. But there are also legal reasons. The National Lawyers’ Guild and the American Civil Liberties Union sued the City and obtained settlements and a consent decree that conflicts with the powers that could be granted to the police by the “exigency clause.”

The first case, Campbell et al. v. City of Oakland, CV11-5498 JST, challenged OPD’s unlawful use of shotgun-fired, lead shot filled “beanbag” rounds, explosive teargas filled blast grenades, and other unconstitutional force and arrests against protesters on October 25 and November 2, 2011. The Campbell settlement overlaps with a separate $1,025,000 settlement in Spalding v. City of Oakland, CV11- 2867 TEH, a class action lawsuit brought by the NLG on behalf of 150 Justice for Oscar Grant protesters who were illegally arrested and jailed in 2010.

As part of both settlements, the City and OPD have agreed to abide by a negotiated crowd control policy that prohibits impact munitions and explosives from being used in the manner they were used during the Occupy events, and sets guidelines for constitutional policing of demonstrations and other crowd events; requires OPD to negotiate with the NLG and ACLU concerning any revisions to the crowd control policy; and provides that the federal court will have the power to enforce compliance with the settlement, including the crowd control policy, for up to seven years from now.

The ”exigency clause” also sets up a conflict with the Negotiated Settlement Agreement and the supervision of the OPD by a federal court. It would allow the City Council to delegate power to the police chief without regard to the NSA or the authority of the federal monitor/compliance director.

In addition, the Coalition is preparing litigation to enforce the provisions of the Brown Act and the Sunshine Ordinance. More details regarding this will be provided in a letter from our lawyers at Troutman Pepper Hamilton Sanders, LLP.

For all these reasons, and for the communities of Oakland, we must insist that you delete the harmful language at the end of subsection (b)5 of the draft under consideration before it can go to the ballot.

Please Sign the Petition below: