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law enforcement official of Alameda County, I want to make the court a

concerns I have about how the Independent Monitor is judging the per

Oakland Police Department with respect to officer involved shootings a

both the department and public safety. I offer the following information

assist the court in making its decision regarding the appointment of rec

2. I have served in the Alameda County District Attorney's O

more than twenty eight (28) years, as the District Attorney for the last t

the Chief Assistant District Attorney for ten (10) years prior to that, as w

Senior Deputy District Attorney and Deputy District Attorney. The Dist

Office consists of 156 attorneys in the Legal Division, 63 sworn peace

Inspector's Division, 39 victim advocates in the Victim Witness Assistan

108 staff in the Administrative Division.

3. As the Attorney General is the chief law enforcement offic

California, I serve as the chief law enforcement officer and chief prosec

County of Alameda, which includes Oakland. A primary responsibility

and that of my Office, is to protect and ensure public safety.

4. The Alameda County District Attorney's Office covers a ju

approximately 800 square miles and boasts an extremely diverse popu

1.6 million people. The District Attorney's Office regularly interacts wit

County Sheriff's Department, which has sole jurisdiction in the unincorp

the County and county wide law enforcement jurisdiction; with fourteen

municipal law enforcement agencies; with the University of California a

State University police departments; with three (3) special district polic

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extensive continuing education and training of sworn peace officers in

California and as such, we produce three (3) legal update shows per wmembers of my staff, including me, are certified P.O.S.T. Instructors; s

my staff regularly instruct California sworn peace officers and non-swo

personnel. Lastly, the Alameda County District Attorney's Office is rec

the national leaders of prosecutor offices and within California, my Offic

staff members are instructors for the California District Attorneys Assoc

including at the National Homicide Symposium sponsored by the Natio

Attorneys Association and CDAA.

5. The monitor's report criticizes aspects of officer involved

investigations by the Oakland Police Department and proposes change

investigations play an integral part in our own investigation, the ACDA'

interested in the monitor's attempt to influence the manner in which su

are carried out and reviewed.

6. Further, the ACDA Inspectors frequently work closely wit

Oakland Police Department. For example, the ACDA Inspectors may

Police Officers in conducting criminal investigations both before and af

decision has been made. Inspectors may call upon assistance from O

Officers in making arrests or executing search warrants. Moreover, I h

responsibility to apply for wiretaps on behalf of the Oakland Police Dep

wiretap investigations often focus on individuals engaged in violent crim

ACDA Inspectors often work closely with Oakland Police Officers in ca

operations. To the extent that the monitor's report impacts officer safe


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7. When a peace officer is involved in a shooting in Alamed

results in a fatality, my Office conducts a separate investigation of the ACDA Office's Officer Involved Shooting (OIS) Team consists of exper

assistant and/or deputy district attorneys as well as experienced ACDA

two person team, consisting of an attorney and inspector, are assigned

duty, responding 24/7, 365 days a year. The Team responds to the sc

and evaluates cases where a person has died as a result of an officer i

While it remains the responsibility of both the Internal Affairs Division a

Investigation Division of the employing law enforcement agency to con

investigation into the use of force, the OIS Team conducts a separate,

parallel investigation into the circumstances leading up to the death.

8. Although the OIS Team's evaluation and report is a sepa

independent investigation of officer involved shootings, my Office caref

criminal investigation of the employing law enforcement agency. The O

investigation, evaluation, and report are designed to answer the ultima

whether criminal charges should be filed against the officer(s) involved

criminal standard used in the OIS Team evaluation is unquestionably d

employed during the administrative review of an Internal Affairs Divisio

inquiry must address the issue and existence of an "imminent threat" fa

involved officer(s).

9. It is with this background that I provide the following resp

Report of the Independent Monitor for the Oakland Police Department:

Shootings (October 2, 2012) submitted to the court. It is my primary in


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THE MONITORS SPECIAL REPORT

10. The monitor was tasked to identify any systemic problemprocess by which the Oakland Police Department evaluates officer invo

and to recommend solutions to those problems. I have reviewed the S

the Independent Monitor for the Oakland Police Department: Offic

Shootings, authored by Robert Warshaw. I am familiar with some of

the monitor to lodge his criticism of the actions of the Oakland Police D

some of its officers. Additionally, my Office stands in the unique positi

no less than thirty (30) law enforcement agencies, as well as providing

to law enforcement officers across the State of California. It is with this

background that I find the monitors report troubling in several ways.

11. First, many of the monitor's criticisms of the Oakland Pol

investigation and review of officer involved shootings seem designed to

consideration of crucial information, particularly as it relates to an office

of the presence of an "imminent threat." Secondly, the procedural pr

and advancement of findings suggested by the monitor is in direct cont

stated goal of allowing reviewing bodies the benefit of dissenting opinio

perhaps of greatest concern, the monitor's discussion regarding cultura

Oakland Police Department ignores or discounts realities surrounding o

the need to protect the citizens of Oakland from increasing violence by

The tone and totality of the monitor's report on officer involved shooting

concerns about the monitor's objectivity and ability to make unbiased c

///


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THE MONITORS LIMITATION OF PERTINENT INFORMATIO

12. Officer involved shootings are complicated incidents whicthorough consideration of the many different factors confronting an offi

second before he or she must decide whether to use deadly force in de

officer and/or others. These factors include the split second assessme

make of an imminent threat, whether or not the suspect is armed, and

suspect has a violent criminal history. Rather than giving full considera

factors, the monitor chooses to discount them, and thereby limit consid

information crucial to the analysis of any officer involved shooting.

13. The limitation of crucial information is most evident in the

treatment of the issue of "imminent threat." In the report, the monitor c

some cases, "we do not believe the evidence supports the existence o

threat at the time the trigger is pulled." As a lead in to this conclusion,

"We concede that these situations are fluid, stressful, and dangerous.

justification for using deadly physical force must be based on the threa

officer at the precisetime force is used. It is troubling that the monitor

constrained to concede that scenarios presented to the police are fluid

dangerous. The report should reflect an understanding of the difficultie

rather than a concession.

14. That the monitor seeks to limit the evaluation of the office

the "precise time" force is used is legally and practically incorrect. Wh

officer must have a reasonable belief of imminent harm at the time he

weapon, the monitor seems to substitute "imminent" for "precise" which


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criminal law and as such, holds the Oakland Police Department to a di

unreasonable standard for officer safety issues than that imposed by uaccepted training.

15. A police officer is justified in using deadly force when the

believes such force is necessary to defend the officer or another perso

threat of death or serious bodily injury. This determination of reaso

requires a consideration of the totality of the circumstances.

16. Californias jury instructions illustrate the factors that mus

Homicide is justifiable and not unlawful when com

who

o Reasonably believed he or someone else wdanger of being killed or suffering great bod

o Reasonably believed that the immediate us

was necessary to defend against the dange

o Used no more force than was reasonably n

against the danger.2

Homicide by a peace officer is justifiable and not u

o The officer had probable cause to believe th

posed a threat of serious harm to himself o

o Probable cause exists when the facts know

would persuade someone of reasonable ca

someone is going to cause serious physica

o The People have the burden of proving bey


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this burden, the jury must find the officer no

17. It is difficult to reconcile the reality of a fluid and dangerouthe monitors requirement of a "precise time" at which to measure the a

an officers use of deadly force. This contradiction demonstrates the m

find fault in situations, even where fault does not lie. By doing so, the m

atmosphere of extreme conflict and confusion which has resulted in un

the police department and its ranks.

18. The monitors report also dismisses the important questio

not a suspect is armed. The monitor states that the Oakland Police De

bias that an officer involved shooting is justified unless proven otherwis

of this supposed bias, the monitor argued that the "presence" of a fireaincident was a factor unreasonably weighted in favor of justifying a sho

stated: "If a firearm is involved in the incident, we note the OIS will alm

found to be justified, even if at the time of the actual use of force, the fir

being used as an imminent threat. During our conversations, one OPD

showing great insight, wondered if it was possible for a suspect posses

surrender without being shot, given that his every action would probab

a furtive move."4

19. The monitor's conclusion is unsupportable. The quoted r

consider the many scenarios where Oakland police officers have recov

armed criminal suspects and no officer involved shooting occurred. Ac

and police reports, since January 2012, Oakland Police Officers have


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than 750 illegal firearms without an OIS incident. Contrary to the o

unnamed command officer, it is both possible and frankly, is the case iencounters,for a suspect possessing a handgun to surrender without b

outcome is routinely achieved when a suspect obeys an officer's comm

firearm, shows his empty hands, or abandons the firearm in a vehicle b

When a suspect commits an assault with a firearm upon a police office

charges those cases which can be proved beyond a reasonable doubt

section 245 (d)(1).

20. The monitor criticizes the Oakland Police for including inf

criminal history of the subject in their investigation. The monitor argue

Police Department has a bias that an officer involved shooting is justifieotherwise. The monitor states:

"[E]very EFRB commences with a detailed history of subj

criminal record. This tends to reinforce that a bad guy' w

involved and that should be taken into account in determ

justification."

21. Presumably, the monitor is suggesting that the criminal h

subject should be excluded from the materials generated by the Oakla

Department in an officer involved shooting. Officer involved shooting in

require analysis of statements made by the involved officers regarding

use of deadly force. Such statements include descriptions of the actio

The criminal history of a subject is useful in evaluating whether the des

the subject are inconsistent or consistent with the subject's actions on


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the only consideration in a review of an officer involved shooting, but it

means, an important one. Therefore, elimination of this material from investigation would be inappropriate.

PROCEDURAL ROADBLOCKS TO DISSENTING OPINIONS

22. The monitors report is critical of a review process that it d

exhibiting the most deficiencies and the least inquisitiveness when it c

involved shootings that are not clearly justified.5 Among other things

critical of a procedure under which the IAD investigators conclusions a

report and findings of the IAD Commander even if their recommendatio

inconsistent. The monitor asserts that the dissenting opinions are ther

weight and credence. What the monitor then suggests is that the disserecommendation of the IAD investigator, if different from the IAD Comm

changed in the report. He suggests that the same dynamic would not

criminal investigation, and it should not be tolerated in an administrativ

am astounded by this remark. The suggestion to change a report falls

common practice and thought. In a criminal investigation, conflicting e

that which would tend to exonerate a subject of the report should neve

changed to accommodate anothers finding. In fact, the opposite exist

exonerating, material evidence or information, it is readily disclosed by

team. It is my understanding that OPD has an electronic reporting sys

allow going back in and changing a report. In any event, it is the proto

5 Special Report of the Independent Monitor for the Oakland Police De


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am told, that in an IAD investigation, if a dissenting opinion(s) exists, n

included, but they are considered by the Board and final decision-make

investigation be criminal or administrative, the goal is the same: the as

truth. An investigation is never simple, never easy, particularly in the c

involved shooting.

23. A shooting by an officer involves a host of considerations

elsewhere. Some of those considerations were addressed above, but

into play: a suspects movements, an officers reaction time, the presen

innocent bystanders who could be harmed by the suspect or by friend

officer, the officers assessment of the suspects mental status, the inte

sudden movement, a bulge under the clothing, a dark object. A fair cothese factors requires that the shooting be evaluated by several invest

several perspectives. It would thwart the purpose of the investigating b

investigator the absolute authority to ignore the findings of the others a

boards findings to the majority. The reports suggestion is tantamount

Justice of the Supreme Court the authority to write the majority opinion

he feels strongly about even if he is outvoted by the remaining 8 justice

24. The reports emphasis on result over process calls into q

this report is a fair and knowledgeable assessment or a reflection of the

particular result.DOWNPLAYING THE REALITIES OF INCREASING VIOLENC

25. Perhaps of greatest concern in the monitor's report, is the

appreciate the dangers faced by Oakland Police Officers on a daily ba


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officer safety issues and repeatedly reinforce the dangers of police wor

times in the same policy. This can create an environment in which off

perpetual state of high alert, assuming that all citizen contacts have the

badly, and reinforce the need to be ready to defend themselves at all t

aggressive action.7

26. These words may readily be interpreted as an insult to th

community in Oakland and betray a fundamental misconception by the

realities faced by Oakland Police Officers and all law enforcement pers

the badge to protect and serve our communities. Across America, mo

are killed in a traffic stop, serving a search warrant or responding to a d

incident. Officer safety is a priority for virtually every police agency in thshould indeed be expected, if not required, that OPD Administration an

"emphasize officer safety issues" and repeatedly "reinforce the danger

There is an abiding risk for any police officer who patrols a street, but r

makes Oaklands streets more dangerous than ever. With a full two m

calendar year yet remaining, there have been 103 murders in the city o

a 13% increase over the previous year and nearly a 65% increase from

this year, there have been a reported 2,226 Aggravated Assaults in Oa

increase from this time last year) and 458 Assaults with a Firearm (a 2

last year and a nearly 8% increase over the same time span in 2010). have been reported and in more than one-half of those crimes, a firear

7 See Special Report of the Independent Monitor for the Oakland Polic


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a marked 30% since last year. Yet, perhaps most pertinent to the mon

OPD's "hypersensitivity" to the dangers of police work, is the staggerin

number of Firearm Assaults on an Officer. So far this year, there has b

increase in such assaults against Oakland Police Officers over last yea

increase from 2010.9 While even these sobering numbers do not fully

dangers and officer safety issues faced by members of the Oakland Po

their complete absence from the monitors' report or, at least, the absen

comprehensive appreciation for how these numbers impact officer safe

paramount concern.

27. As to the monitor's claim that OPD's emphasis on officer

an environment in which officers are on a perpetual state of high alert, citizen contacts have the potential to go badly and reinforce a need to b

themselves at all times against aggressive actions," one need only loo

events of March 21, 2009 to see how misplaced the monitor's criticism

citizens of Alameda County and the greater Bay Area, we are all too fa

events of that day, and a complete recitation of that tragedy here is no

what can be instantly gleaned from that day's events, and what is indir

the monitor's statements, is that just three years ago four Oakland Poli

shot and killed in the line of duty stemming from events that simply beg

traffic violation and car stop. This horrific occurrence, the single deadlCalifornia police officers since 1970, exemplifies the need, the demand

indeed be on "a perpetual state of high alert," knowing that any citizen


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the "potential to go badly" and that the officers need to be ready to def

all times against such a reality. To fault the Oakland Police Departmen

and policies is to ignore the events of March 21, 2009, to discard the le

from that day, and to place police officers directly in harm's way withou

and appropriate perspective. Furthermore, the monitors emphasis on

ignores the friendly and cooperative interactions officers have with Oak

a daily basis. In virtually every Neighborhood Crime Prevention Counc

Neighborhood Watch meeting I attend, citizens of Oakland cry out for a

police department and have established positive communication lines a

relationships with the Oakland Police Department.

28. The monitor's report contains an analysis of individual incmonitor's "Summary of Investigations Reviewed" describes two separa

shootings resulting in three fatalities. This description, and the time pe

the report, makes it possible for us to identify the incidents at issue. M

a separate and thorough investigation into these officer involved shoot

fatalities.

29. At the conclusion of the monitor's report, he states, "It is

discuss with the Court our concerns regarding the actions of individual

involved in 'OIS's' as well as the behaviors of those who have investiga

certain cases that have been of great concern to us."30. To the extent that the monitor is referring to one or both o

involved shootings investigated by my office, it is notable that the moni

contacted my office to express concern regarding the police investigati


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with the monitor, to meet.

31. We know all too well that criminals in Oakland are using

people. The number of gun related homicides and shootings in Oaklan

2012, Oakland's crime statistics reveal:

o 103 murders, much higher than the already compa

year average of 79;

o More than 450 firearm assaults against persons (n

reported, which is a five-year high;

o More than 500 firearm offenses at vehicles and str

also a five year high and 25% more than last year

o At least 6 firearm assaults on a police officer, an in

o More than 3,250 robberies reported have plagued

and of those, more than half involved a firearm--an

over the same time last year;

o More than 160 sexual assault crimes reported, an

o Nearly 7,000 calls for help on domestic violence c

increasingly more violent, involve weapons and se

o 8 Domestic Violence homicides, a significant incre

and an all-time Alameda County high since 2002.

32. When confronted with these sobering statistics, our commquite frankly demands law enforcement officers to be proactive in their

and arrest criminals armed with guns. This expectation puts police offi

way. The community expects these officers to be lawful in the executio



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33. The City of Oakland, given the challenges of scarce reso

struggled to address gun related violence. In recognition of the challen

Oakland and its police department, United States Attorney General Eri

United States Attorney Melinda Haag, have pledged assistance to Oak

law enforcement agencies. Accordingly, agents from the FBI, ATF, DE

and others, have been deployed to Oakland in an attempt to reduce gu

and successfully prosecute those engaging in such violence.

CONCLUSION

34. The NSA came about as a result of the Riders case. The

those involved officers were prosecuted by my Office and an arrest wa

outstanding against one. When police officers have broken the law in

they have been prosecuted by this Office, for crimes ranging from murd

the influence. Oakland, its residents, and all those who visit Oakland,

department that is the finest it can be. They also deserve a police dep

operates within the law, with a high level of professionalism, and the hi

integrity.

35. Police misconduct and abuse of civil rights are detrimenta

law enforcement and the ability of my office to successfully prosecute c

which depends on public trust in the criminal justice system and a willin

to come forward as witnesses in the cases we decide to prosecute. I tvested interest in seeing the Oakland Police Department come into com

NSA and to follow the best practices of modern constitutional policing.

want to make sure that this monitor (or any other monitor selected by t


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