Judge Sets Deadline for City to Strengthen “Use of Force” Police Review Boards


Federal Judge Thelton Henderson has lost patience after months of delays by city officials who have been balking at implementing a court-recommended policy to strengthen internal police use-of-force review boards, saying they must continue to “meet and confer” with the Oakland Police Officers Association (OPOA).


Henderson, in a court order issued last Friday, said that if the city does not implement the changes by the deadline, he would direct his representative in Oakland – Monitor and Compliance Director Robert Warshaw – to implement the changes himself.



“This process has gone on long enough, and it is hereby ordered that the city must complete any additional meeting and conferring it believes it must do with the union and reach a final determination on whether it will implement the revised policy on or before Dec. 21.


“It is furthered ordered that if the city does not implement the revised policy by the above deadline, then the Compliance Director shall invoke his authority to direct its implementation.”


Henderson, who has been overseeing police reforms for the past 12 years, is requiring OPD to expand its Force Review Board and Executive Force Review Board to examine issues that go beyond whether the use of deadly force falls within department policy.


He wants the police to expand the review to “whether… deadly force may have been avoided, and to identify tactics, strategies, and opportunities as events unfolded that may have avoided such an outcome.”


Warshaw recommended the policy change to Chief Sean Whent in July and since then has met with Whent repeatedly and conferred with the mayor and city administrator.


In August, Chief Whent agreed to make the policy changes, commencing “meet and confer” with OPOA.


The chief informed the monitor that he would implement the revised policy on Dec. 9, almost five months after the monitor’s initial recommendation.


“However, the city has now rescinded implementation of the revised policy based on the OPOA’s objection that the required process of meeting and conferring has not been completed,” the judge said in the court order.


“It is not clear whether the policy changes under consideration are even subject to any meet and confer requirement, but even if they are, there has been more than ample time to complete the process,” said Henderson, adding that the “union cannot unilaterally decide when the meet and confer process should be deemed complete.”


Henderson said this policy change falls within the authority of the monitor, which is to “enhance the ability of the Oakland Police Department . . . to protect the lives, rights, dignity and property of the community it serves.”


“The court can think of nothing that goes more to the heart of protecting lives than a policy that requires the department to consider whether loss of life could have been avoided,” he said in the court order.


“To reject the proposed changes would indicate that the only important issue following a use of force is whether an officer should be disciplined because the force fell outside of department policy, and that it is unimportant to evaluate whether deadly force could have been prevented and, as a result, one or more lives saved.”


He said the city appears to understand the importance of the proposed policy changes.


Following the deaths of four officers in March 2009, “the city evaluated the totality of the circumstances, including whether different tactical or strategic choices might have saved the officers’ lives.”


“To treat fatal officer-involved shootings any differently would imply that officers’ lives somehow matter more than civilian lives – a message that the court hopes neither the city nor the union intends to send.”


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