Allen, et al v. City of Oakland, et al
Filing
1076
ORDER re: Force Review Board and Executive Force Review Board policy. Signed by Judge Thelton E. Henderson on 12/11/15. (tehlc3, COURT STAFF) (Filed on 12/11/2015)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DELPHINE ALLEN, et al.,
Plaintiffs,
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v.
CITY OF OAKLAND, et al.,
Case No. 00-cv-04599-TEH
ORDER RE: FORCE REVIEW
BOARD AND EXECUTIVE FORCE
REVIEW BOARD POLICY
Defendants.
United States District Court
Northern District of California
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In his July 10, 2015 report, the Monitor recommended that the Force Review Board
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and Executive Force Review Board processes be expanded “to include a review of whether
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the use of deadly force may have been avoided, and to identify tactics, strategies, and
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opportunities as events unfolded that may have avoided such an outcome.” July 10, 2015
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Monitor Report at 10. Since then, the Monitor has conferred repeatedly with the Chief of
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Police on this issue and has also consulted with the Mayor, City Administrator, and
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Plaintiffs. In August, the Chief “committed to provide suggested policy revisions” to
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address the Monitor’s recommendation. Sept. 10, 2015 Monitor Report at 13.
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By November, the Chief had “commenced the implementation process, a portion of
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which includes a ‘meet and confer’ component with the police officers’ union, or OPOA.
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This meeting is scheduled to occur during the month of November.” Nov. 12, 2015
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Monitor Report at 8. The Chief reported to the Monitor that the meeting did, in fact,
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occur, and that additional meeting and conferring with the OPOA, its counsel, and
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Plaintiffs’ counsel both preceded and followed that meeting. The Chief ultimately
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proposed policy language with which the Monitor concurred, and the Chief informed the
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Monitor that he would implement the revised policy on December 9, 2015 – nearly five
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months after the Monitor’s initial recommendation.
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However, the City has now rescinded implementation of the revised policy based on
the OPOA’s objection that the required process of meeting and conferring has not been
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completed. It is not clear whether the policy changes under consideration are even subject
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to any meet and confer requirement, but even if they are, there has been more than ample
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time to complete the process. Moreover, the Court understands that the union and the City
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have had extensive exchanges on this issue, and even if the City was required to meet and
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confer, the union cannot unilaterally decide when the meet and confer process should be
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deemed complete. This process has gone on long enough, and IT IS HEREBY ORDERED
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that the City must complete any additional meeting and conferring it believes it must do
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with the union and reach a final determination on whether it will implement the revised
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United States District Court
Northern District of California
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policy on or before December 21, 2015.
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IT IS FURTHER ORDERED that, if the City does not implement the revised policy
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by the above deadline, then the Compliance Director shall invoke his authority to direct its
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implementation. There can be no doubt that this falls within the Compliance Director’s
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authority, which extends to “policies, procedures, and practices that are related to the
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objectives of the NSA,” the “overall objective” of which is “to enhance the ability of the
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Oakland Police Department . . . to protect the lives, rights, dignity and property of the
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community it serves.” Dec. 12, 2012 Order at 6; NSA at 1. The Court can think of
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nothing that goes more to the heart of protecting lives than a policy that requires the
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Department to consider whether loss of life could have been avoided. To reject the
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proposed changes would indicate that the only important issue following a use of force is
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whether an officer should be disciplined because the force fell outside of department
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policy, and that it is unimportant to evaluate whether deadly force could have been
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prevented and, as a result, one or more lives saved. Indeed, the City itself appears to
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understand the importance of the proposed policy changes. Following the tragic deaths of
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four officers in March 2009, the City evaluated the totality of the circumstances, including
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whether different tactical or strategic choices might have saved the officers’ lives. To treat
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fatal officer-involved shootings any differently would imply that police officers’ lives
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somehow matter more than civilian lives – a message that the Court hopes neither the City
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nor the union intends to send.
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IT IS SO ORDERED.
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Dated: 12/11/15
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THELTON E. HENDERSON
United States District Judge
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United States District Court
Northern District of California
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