Edward Swanson (photo: Courtesy of Swanson & McNamera LLP)
The Oakland Police Department (OPD) has a lengthy, documented history of bad behavior by officers, but they are rarely disciplined and a new report (pdf) points a long finger at the City Attorney’s office.
“The Oakland City Attorney’s Office (“OCA”) demonstrated neglect and indifference in its handling of OPD disciplinary cases and arbitration,” court-appointed investigator Edward Swanson wrote. “The City of Oakland has lost arbitrations time and again because the OCA has generally done a poor job of representing the City’s interests.”
The U.S. District Court appointed Swanson & McNamara, LLP to investigate the city’s police disciplinary process in August 2014 as part of much larger, federal court supervision since 2003 for a range of misdeeds and mismanagement. Indeed, Swanson was incredulous that it was even necessary “with the court having already alerted the City to problems with police arbitrations.”
Swanson described a “broken” disciplinary system with problems in four broad categories, but two of them had to do with the City Attorney’s office. In addition to doing a lousy job of representing the city in disciplinary cases, the office has a “dysfunctional” relationship with the police department that “has only exacerbated problems with the discipline system.”
The police department’s internal investigations, which are the foundation of any case against an officer accused of doing bad things, “have often been inadequate.” The department’s policies on discipline are “vague or inconsistent” and its top officials do not publicly express indignation when an arbitrator goes against them.
Not to be left out, the report skewered the mayor, the city council and the city administrator for not holding anyone accountable: “The city administration has done nothing to demand or enforce an effective discipline system. Simply put, it should not have taken a court order to focus the city’s attention on these problems.”
But Swanson saved his sharpest criticism for the city attorney’s office, which successfully defended the police department’s initial disciplinary decision in just seven of 26 arbitration cases. The office prepared its cases “haphazardly” and was generally ill-prepared:
“In many of these cases, there has been a noticeable lack of zealous, aggressive advocacy on behalf of the City. This is likely because the OCA or outside counsel have in many cases started preparing too late in the process to make strategic litigation decisions.”
The lawyers screw up pre-hearing discovery, fail to call as witnesses civilians and outside experts and don’t track essential data.
When it reaches outside its office for help, the city attorney doesn’t necessarily select the most appropriate lawyer. Although city attorney records were missing requisite information for making generalized statements about the selection process, the report noted one case where a city attorney memo recommended hiring a firm in part because it “had handled several real estate matters for the City.”
The report said city attorney staff members aren’t available to the police at critical times of the initial investigation, although it acknowledges, “It is true that the OCA has been affected by staff and budget cuts in recent years.”
The decision last August to investigate Oakland’s disciplining of its police force came days after Officer Robert Roche—who fired a tear-gas canister in October 2011 at a group of Occupy protesters as they helped a critically injured Iraqi war veteran hit in the head by a police bean bag—was reinstated with back pay.
Roche was filmed by a TV camera crew responding to orders to help clear 1,000 demonstrators who had gathered at City Hall in a peaceful protest. Ex-Marine Scott Olsen was standing motionless alongside another ex-soldier, between protesters and police, when his skull was shattered by a bean bag fired from 20 feet away. As people rushed to his aid, Roche tossed tear gas at them.
The police department said Roche used unreasonable force and fired him but he appealed and an arbitrator saw it his way.
The report pointed out that the city attorney’s office waited three and a half months before picking a lawyer for the Roche arbitration. The lawyer “did not even conduct a ‘preliminary review’ of the file until March 14—only 24 days before the arbitration.”
“More to the point, it is alarming that the City Attorney believes that the timing of this assignment was not a factor in the outcome of the case,” the report said.