Oakland City Discipline Matrix Ad Hoc Committee (12/18/2024)

Transcript

We’re now live. Thank you for joining us today for our discipline matrix ad hoc committee meeting. The time is 6:0:2. We have our chair, Ricardo Garcia Costa, who is in transit. We have our captain Bridal Hubbard, and we have deacon Reginald Lyles. Let me see if there’s anyone else in the audience that we should acknowledge. We have 1 participant from our from the public, miss Bridal. Welcome. And, we’re going to get started. I’m gonna turn it over to captain Hubbard.

Alright. Thank you. Hello, everyone. I we’re gonna start with, like, we left off last week talking about custody of prisoners, and I’m sure that will take up most of our time this evening. But I do wanna go back to 38470. If you can see my screen here, subversive organizations. I made some changes to it. I’ll read it again. No member employee shall knowingly join, affiliate with, or support any organization, group, or gang involved in illegal activities, or designated as subversive by a competent authority within the Oakland Police Department, including the chief of police, CPRA, or an authorized designee. Such groups include, but are not limited to, organizations that seek to undermine, disrupt, or overthrow any form of lawful authority, whether that authority be vested in federal, state, or municipal government, city councils, or or other recognized lows local governing bodies or laws and regulations legitimately established under the jurisdictions of California, the United States, or other lawfully constituted entities.

Additionally, any organization engaging in illegal acts against public order and safety may be considered subversive. The designation of a subversive organization will be based on a preponderance of evidence demonstrating that the organization actively participates in activities intended to undermine, disrupt, or overthrow such lawful authority or commit illegal acts against the public welfare, Membership or affiliation for any purpose related to advancing lawful objectives is strictly prohibited, except when such involvement is essential for official duties supported by a lawful investigative purpose and authorized in writing by the chief of police or a designated official. A long 1 there. The main change here is right in the middle. It was requested last week that we expand on what lawful authority is. That 1 is subversive against and included federal, state, municipal, city, local laws, California, United States, etcetera. And, as I stated last week, California Post, you’ll see it here on the side. They have government codes that govern them. It doesn’t explicitly address affiliations with subversive organizations. But it does talk about being in good moral standing.

So 1, assumably, would not be hired if they’re part of a subversive organization because that would not be considered in good standing. Questions on that section? Excellent. I I definitely appreciate the the hack at this. This is pretty, pretty layered. The 1 thing that’s kinda standing up to me is the area in the first paragraph at the end, the bolded area where it says designated as the the mercifully competent authority within the Oakland Police Department. Can we also the way it’s written right there, I have no problem with that. But in terms of law enforcement, can we also expand it to, like, any other kind of, like, law enforcement, you know, folks that are not whether it be, like, an FBI or federal agent. I mean, there might be, like, a submersive gang that’s in a database with the FBI that’s been located, but maybe OPD doesn’t have it on their radar yet or something. You know?

Sure. Yeah. I mean, that that would be the only thing I would add on that, but that I like that. That that looks pretty good. But that probably won’t be my final I’ll write that better, other law enforcement IDs to include, maybe. Okay? Like, you know, DOJ, all that type of stuff, Ryan. Yeah. Okay. Alright.

Well, if if an organization decided to to, to have a march and demonstrate against, let’s say, the Oakland Police Department for what they thought was some unfair practice or some decision made by some court or whatever, and they marched in the streets. Let’s say, like, it was the NAACP. That would be a legal act marching in the street. Could they be considered subversive? What is what are what is their I think if if it’s not illegal against public order or safety, I would say no. Well, you know, every demonstration that happened in the past was an illegal act. Every 1 of them. Either they had them trespassing, or, they were didn’t have a permit to march in the street or not. So what they were doing was illegal. There’s no question about that.

And, so, you know, I you know, some of us may be so young that we don’t remember those days that we think we take for granted that, someone or a group exercising their, free speech and demonstrate it, I just don’t want them to be considered as being subversive. See, I thought the Suburbs Act was not against overthrow of lawful authorities. I thought being subversive was was overthrowing governments in cities, municipalities. You know, you know, I think you ought to have a right to be able to demonstrate against the police. If the police have done anything, as long as it’s peaceful, and you ought to be able to come out in the street and protest, for whatever reason you wanna protest. But if you’re out protesting, then you then now we say, hey. You’re a subversive organization. I thought subversive means overthrowing a government. And it seems like it’s blended here in my reading of it is, you know, just, being disruptive against the lawful authority. Well, as a police officer, I’m a lawful authority, And and people have a right to demonstrate against, the the police.

Or maybe you think they don’t. So it appears that we’re hung up on seek to undermine or disrupt, if it just says overthrow. Is that Yeah. I don’t I don’t see I don’t I I think you ought to be able to disrupt. I think that’s free speech. I think that’s first amendment stuff. And, but I’m not trying to overthrow the government. I just think that the the police are acting in a way that I wish they did not act. But I don’t wanna destroy the government. I’m not subversive.

I’m I’m a citizen exercising my first amendment rights. I don’t think there’s a disagreement on the citizen side. I think this speaks to membership like the officers. So do we want officers doing that? And if I’m if I’m hearing correctly, I’m a say okay. Go ahead. Go ahead. Okay. No. No.

No. You go ahead. Go ahead. Go ahead. Okay. I yeah. Gotcha. An officer, an Oakland police officer, right, who’s off duty and demonstrated against a agency in Modesto that did something that was untoward. Can can we now say that this officer’s, is subversive? I don’t think he is.

And I think he has a right to demonstrate if if he’s protest protesting against, you know, against, you know, spilling of oil in the bay or, environmental issues or fresh air, are you saying that if an officer does any of those things, they’re subversive? I don’t think they’re subversive. They I think they’re demonstrating, and I think they have a right to do that under the first amendment. And, so I think disrupting is, is a little too goes a little too far. Yeah. So as long oh, I’m sorry. Go ahead. That’s my I’m I’m I’m done. Okay. Yeah.

Yeah. And then and along those same lines, I also agree with you. Like, where does like, a slippery slope. Like, where do we draw the line, or where do you go from, like, exercising free speech or the right to gather legally, right, to now you’re becoming submersive. Now you’re disrupting public order. Right? I mean, what if you had a peaceful protest and now folks end up breaking property and disrupting the bridge and shutting down the street? Now they’re doing illegal activity. Could that be interpreted as now you’re being submersive to, like, government order and law? Right?

I don’t think you’d be I I think it’s wrong I think you’re right. To deem a police officer off duty exercising his first amendment rights. And and and for that person to be deemed subversive. I thought this this subversive would be being part of a group, you know, criminal enterprise, you know, some some gang that is making, you know, illegal activity or some group that wants to overthrow the government Yeah. Or overthrow law enforcement. I have a problem with that. Yeah. Like January 6th. Like January 6th. Thank you very much.

That At what point at what point, captain Hubbard, just kind of on a side note, just I’m trying to just process stuff. If if a cop is just out exercising their free speech, you know, the example Dekelau said, like, let’s say, like, an oil spill in the bay and there’s, like, a group that’s protesting a oil company or, you know, has nothing to do with, like, law enforcement issues or anything like that. Right? And they’re out there exercising their speech. And then at some point, let’s say and and, again, I’m not saying I’m not suggesting that this is subversive, but just on a side note, in terms of just, like, illegal behavior, like, let’s say a group starts splintering off, breaking property, disrupting traffic, doing things that are basically, could be classified as, you know, you get cited for or arrested for. Right? At what point, not suggesting that it’s subversive, but at what point is an officer like, okay. Maybe I need to walk away from this situation because if I get photographs next to a person breaking glass, they identify me as OPD. This could now be a negative reflection or bridal real repute to the organization. Like, is there a point now that you have responsibility as an officer that, like, there’s laws being broken around you that you kind of, like, step away from that?

So you so you so that there’s not a perception that you’re a part of that. How does that work? Just aside from the subversive issue, just just on a side note. How does that work? Yeah. I mean, we have an obedience to law section and and if you’re the the evidence will have to support your involvement in this, but the the initial allegation would be obedience to laws where you’re you are there, you are participating and can and what then turned into illegal behavior and the officer can be charged with that. If to take it further, that group is considered subversive by, let’s say, a competent authority, but more of more over preponderance of evidence that they’re trying to overthrow something, undermine it to where it collapses, if you will, then the added charge would be subversive organization. Sure. Gotcha. Okay.

So there is a lower level of just being around legal behavior, and that’s not necessarily with this clause. This right here, 3838471 is really around the immersive, like, the intent to over like, I would under I would I would think it’s more around seeking or the intent to actually convert an established system or institution or government. You know? Yeah. That’s what this is what it’s speaking towards. Right? I just wanna make sure, to **** and Lyle’s point, that we’re not creating something that’s meant for that, And then it ends up impacting people’s free speech, you know, and and right to assemble and things like that. Well, again, here it says undermine or disrupt a lawful authority. And and I and and disagreeing with a police officer is not subversive. Or disagreeing with a police agency is not subversive.

Overthrowing the city government is subversive. Planning dynamite, disrupting the the, the government process, you know, that could be deemed as subversive. But disagreeing with a police officer is not subversive. I don’t have to disagree with agree with the lawful authority even when I’m wrong. I’m innocent to proven guilty. So III just think that the the the way a lot you know undermine disrupt overthrow any form of lawful authority. Now, you know police officers can be disagreed with. We can disagree with There’s too much of a slippery slope is what I’m hearing. I’m sorry? There’s too much of a slippery slope is what I’m hearing then.

Because anything could get interpreted as I wanna be ******** on this. Police officers are not governments. They’re not always right. They are agent of the government disagreeing with a police officer. You have a right to do that as a citizen. The the government, the citizens, the police and the the the the government has to prove me guilty. I’m innocent and I have a right to protest to say no, I’m innocent. You know, I have a right to do that. And so now if you have, it written in here, this could be interpreted that, well, I’m a lawful authority. You disagreeing, you’re disrupting, a lawful authority.

Well, we got enough laws on the books, to deal with that 148 and all of that. You know, you can use 148 P. C. You don’t have to have this in your teaching folks that anybody who disagrees with you, you know, is subversive. They’re not subversive. They’re innocent until proven guilty. It just indicates to me how far we’ve come in this country, And it’s scary to me. How far we’ve degraded from my political perspective. You know, police officers are are not absolute, you know, they’re not governments. They’re agents of the government, but they all lawful authorities, and I and and we can we can disagree with them.

I can I can say no? I am innocent. You know? Now if I if I fight with them in terms of an arrest or anything like that, you got 148 PC. You don’t need this. You you don’t need, or overthrow any form of lawful authority. You don’t need that. Just saying that part, remove that out, because then that opens up the window. Yeah, because they are, a police officer is a lawful authority, and he’s a form of a lawful authority. So you equating an individual police officer on the same level with the government.

And I don’t and overthrowing the government is subversive. Disagreeing with a police officer is not subversive. It’s your well, right now it is. You’re part of your bill of rights. It may change in in the very near future, but right now, it’s a part of your the bill of rights, the 4th amendment. You’re innocent to proven guilty. I can disagree with your lawful authority. So I I don’t I think this is, this is dangerous because people read that, and it may encourage them to do things that they shouldn’t do. Sorry. I just I I wanna make sure I understand this.

So we we’re are we challenging the undermining and disrupting or the lower level? We’re we’re challenging undermining this and disrupting or overthrowing any form of lawful authority. A part of lawful authority is a local police officer. Right? So you’re saying, I can’t disagree with this. I can’t disrupt this officer. I can’t say, no, I’m innocent. I can’t, do that. Are you saying, Well, well, no, we’re only talking about police officers. We’re not talking about a citizen.

Well, I can’t take a police officer out of this. A police officer is a citizen. And they may be living in their community in San Francisco, but working in Oakland in or Modesto, and they’re protesting something. They have a right to do that. Yeah. I agree. How can we how can we work? Can we say, like, government institution or government system, something like that? So it’s specific to To government. To overthrow systems and institutions, not, like you’re saying, on an individual level and then that get interpreted as like, oh, now you’re now you’re just being submersed to all of our authority because you won’t listen or whatever that might be.

Right? Yeah. And and and the and the individual police officer hasn’t lost any authority. He still has 1 48 PC. You interfere with a police officer’s investigation. He still has all of that. Use that. But but this is gonna what does this teach folks? That, hey, we can charge them as being subversive. Oxford dictionary dictionary says submersive as an object as an objective is the oh, yeah.

An established system or institution. Seeking or intending to divert an established system or institution. Yeah. You’re talking about citizen. You’re talking about cities, municipalities, governments. You’re not talking about individuals. Good evening. Good evening. Sherry. Got a lawyer on the line, so I’m glad.

Sherry, we have Risa raising her hand in the audience. Excellent. Is there a way to have her come off mute to be able to contribute? Yes. Give me a sec. Alright. You’re muted, miss Risa. Thank you very much. To take in Lyle’s point also, I’m also concerned about, any organization engaging in illegal acts against public order and safety. You know, that any organization, as a Jewish person who has been protesting in support of Palestinian rights and have been called antisemitic.

I’m concerned about how broadly, this this is because our there are laws that are either in process of being put in place or have been put in place that say, I can’t legally boycott Israel. And so I’m concerned about how broad things are to, again, to the to, Deacon Lyle’s point about police officers being private citizens on their off time and what rights do they have. I totally agree. And I think, you know, the the the issue of Palestinian rights and, and, you know, objections over what’s going on in the Middle East, I think that’s a great example. And we’ve seen that I mean, we’ve seen, hell, in Oakland, we’ve seen the Black Panther’s free breakfast program get labeled 1 of the top public safety threats to America. Right? And it’s like, you know, if a cop was going out there and just free eating lunch, but because we had to call it so pro, it was deemed deemed a subversive organization. Right? I mean, it is, I mean, it is a slippery slope, and I I, yeah, I I I like that idea. I mean, I think police officers should have the right to either join a pro or or anti, you know, Israel protest.

You’re protesting a pro or pro Israel protest. Either way, and be able to express their free speech without being able being labeled a terrorist or something like that. Right? But I think I think where it gets tough, and this is it helped me out, folks, is if you have an organization, let’s say let’s say there is a known organization that no advocating for human rights 1 way or another for some political issues, like some unnamed political issue. And there’s a segment of that population that is doing, like, you know, stuff that could be be deemed as, you know, domestic terrorism or things like that. Right? At some point it is the responsibility of a cop. I mean it’s a very fine line of like well as a private citizen I have my freedom of speech you could you know exercise my right to express my political views. But then if I start aligning myself with an organization, known to have done something like the Rylance or other type of stuff then I just think the option is like I don’t know I would think that OPD would be advised to to stay a little bit away from that. Just stop.

But but if somebody was like, no, I need to go there. Does that make I should make it illegal or they violate the call by doing that now? I don’t know. Tough 1. And then really, if you really wanna get think about it, captain too. Right? If you look into January 6th and you look at even our own Department of Justice and we you know, both have been convicted of being subversive and trying to, you know, participate in acts to overthrow the government. Well, now we have a new, we have a new president and a new and we’re gonna have a new DOJ, and they’re actually gonna flip it and say that you guys are patriots. And they and they wanna submit to organizations. So, really, it all depends on the government classifying these groups and whether you’re participating or not and how your participation is at the point of when they’re being classified.

Just like J. Edgar Hoover, we’re gonna classify the Black Panther Free Breakfast. This program is the 1 of the biggest threats in America. Right? On the flip side, now you got Donald Trump saying that the January 6 guys are patriots, and they’re gonna be, you know, they’re gonna be target. I don’t think I don’t think our federal government is helping us out on this 1. It’s a little more complex as well. You need to take out any form of of, any form of lawful authority. It you know, it no. We’re only talking about governments.

We’re not we’re not talking about police officers. And we have to remember the First Amendment does allow you to, protest. So we have to be careful that seek to undermine because Black Lives Matters, you know, targeted as subversive where MAGA isn’t. So Right. It just depends on whoever’s making that determination. Correct. Well, I think by removing any form of lawful authority helps move us in the right direction. At least it doesn’t open it up with such a broad thing where if a cop, you’re not, you know, not listening to the cop who are here, you can’t be labeled as being the person. And we gotta keep in mind To your point. If we bring up January 6, they actually wanted to stop the, the Transgift.

Of the votes. They were trying to overthrow the running of the government. And to that point They were subversive. We had some Oakland police officers participating in that mark, in that overthrow. Yeah. That was an overthrow. Yeah. So this I mean, while we definitely wanna protect the, you know, right to free speech and all, there are some things that police officers should not be able to do. And I believe the participation in something like January 6th is 1 of them. And I’m and I and my point is that January 6 was subversive.

It was the definite the epitome of subversive, something subversive. They wanted to stop the counting of the votes of the electoral college. So they were trying to stop it. That was subversive. But But you know, Ed, what’s interesting? It certainly was. But then you’re gonna get Trump perhaps once he’s in well, Trump in power, perhaps, pardoning all of those. Yeah. I but again, and and I and I and I agree with you. I’m sensitive to that.

But we’re talking about here an officer being considered subversive if he or she participates, any in any protest, that, disrupts, I’m not saying overthrow, merely disrupt, comma, or so disrupts any form of lawful authority. That’s too much. And so, January 6th is not a good example because they were subversive. They actually did try to overthrow a government, federal government’s counting of the votes. That that was subversive. But and but but disagreeing with a police officer, even if you’re another police officer disagreeing with a police officer, you have a right to do that. You you and he said, well, he’s disruptive. How is he disrupted? He he did not say, he’s he’s, he was there. He did not answer my question or whatever.

I’m gonna arrest him. Fine. Or he resisted. Okay. 148. You’ve got all the tools you need. You don’t need this. You don’t need to add any form, disrupt any form of lawful authority. That’s too broad of a brush. I tend to agree with you only because there are we have to be careful that we do not just because you’re a police officer, you have no first amendment right.

They may be curtailed a bit, but as long as it’s not an unreasonable infringement on the right, first amendment right. So we do have to look at this from the point of view of how we are impacting the officer’s ability to do his or her job without aligning his or herself with subversive groups, but also have the right to exercise First Amendment rights. And, you know, that’s just going to be on a case by case basis. Okay. So let me beat this to death already? Yeah. I’ll take another crack at it for, not next week, but couple weeks from now. Okay. Okay. We’ve then left off with custody of prisoners.

So as we discussed last week, there’s only a class 1 version of this. And the problem with this section is that the discipline range is counseling and training all the way to termination. And for those who couldn’t join us last week, we had a discussion about the Freddie Gray type treatment that you saw in Baltimore, which was deemed intentional and inhumane. Yeah. And then you have the 1 that was unrestrained in the back of a of a paddy wagon. Right? Correct. Yeah. And then you have, let’s say, an officer who’s driving from Oakland all the way out to Dublin to take them to jail and they have to use the restroom, but the officer really in, you know, intentionally is trying to facilitate that, but you know you’re stuck in traffic at 3 PM heading out to Dublin. Those the restroom is not available, but you’re doing your best.

Those 2 examples are in the same section here. So to help combat this, came up with 2 different offenses, the class 1 versus class 2. This is many edits that I did between last week and when I set last night. So, my brain was fried by the end of it. So I I hope tonight we can, similar to our previous discussion, edit this as as needed. So the class 1 offense, inhumane treatment refers to any deliberate or intentional act of neglect, abuse, or mistreatment toward a prisoner that violates established standard of care, resulting in serious harm or creating a substantial risk of harm. This includes denying access to restroom facilities, refusing necessary medical care, or engaging in physical, verbal, or psychological abuse. To ensure clarity, inhumane treatment excludes brief context dependent delays that arise from operational necessities, provided such delays are reasonable, documented, and properly addressed. So that’s a class 1 offense. In class 2, this is general neglect or procedural deficiency.

General neglect or procedural deficiency involves non deliberate lapses in prisoner care resulting from technical oversights, procedural mistakes, or minor compliance failures. These incidents lack malicious intent, but may still compromise prisoner welfare. To address varying levels of severity, the classification distinguishes between minor technicolors with minimal operational impact and significant procedural breakdowns that pose greater risks. Corrective measures will be proportionate to the severity frequency and resulting consequences of the failure. So maybe we could take small bites of this. Let’s start with the class 1 offense. And, really, the theme behind this is just straight inhumane treatment. And I don’t like to clue too much of the the word intentional because 1 can then just walk in and say, well, it was unintentional. But you can see, based on the evidence, whether something was intentional. Like, someone saying over and over they have to use the restroom and the officer was in a position where they could take them to the restroom and deny them that, that would be, I would say, a class 1 offense versus the other example that I gave.

Then the class 2 I won’t even talk about class 2. Let’s just stick to class 1. Is there anything, that sticks out to you or things that need to be, fixed? You know, the first thing that leaves at me is is the the word, you know, maybe another word in between deliberate and intentional. I like those 2 words. But I would say deliberate comma intentional or callous act of neglect. Yeah. Okay. Next. Okay.

So so I think you were driving at the meanness. There’s something mean about this act of ignoring a person when you could take them to relieve themselves. Right. I mean, there’s some intentionality behind that because I mean, I’m technically not intentionally doing it, but could I I mean, could I have? Could the reasonable standard is what we’re using here. Is it reasonable for the officer to do x y and z? And if so, then they should do it. If not, then it’s a class 1 offense. Right. And and I’m saying that that that, you know, deliberate you can be deliberate and intentional and be within good police practice by not stopping for someone to relieve themselves.

And somebody’s, you know, strapped to a gurney in the trauma bay, heavily medicated, and then Invest CID comes in and and starts to get statements and starts to investigate it, like and they’re just, like, totally in a loop, don’t know what they’re saying. You know, and I I’ve seen that be quite problematic as well. Mhmm. Yeah. We do have a Miranda section that we will, I’m sure, get to. Truthfulness does have some overlap with that, but, just taking what this is truthful at all times. So I can tell you that where we run into problems with this mistake of facts. As in, you know, sometimes our investigations are months later from the incident, and we’re asking an officer to remember what happened, and sometimes the facts just don’t line up with what’s on body worn camera. But is it a truthfulness issue, or is it just time has passed, mistake of facts? I can’t even tell you what I ate for breakfast yesterday, captain.

Right. Yeah. It’s tough. Yeah. So does so is the threshold to violate truthfulness like that? You have to really see, like, they intentionally, like, are aligned or I mean, that’s it’s it’s just hard to kinda determine that. The way it’s written, it doesn’t have really the intention behind it. Sometimes we also make the argument of whether the lie is supposed to benefit them as in is there a reason to lie. But this this is a narrow threshold because we’re only talking about preponderance, and 1 can easily say, well, your facts don’t line up. You’re therefore lying.

Done. And you get terminated. But I’m certainly not suggesting that we make a class 2 section out of this either. It’s just maybe we can define this a little bit better to what is truthfulness. What does that actually mean? Well, especially in the matrix, the only, discipline in this is termination. Right? Yes. Yeah. I don’t I don’t think you need a class 2 on truthfulness.

No. No. If if we’re gonna if we’re gonna try to get back to telling the truth, we got to say that’s all we gonna accept. Off? By the way, I just read the the the the legislative council digest on AB 2644 and it says that anytime, a juvenile is in custodial. Yeah. Custody So that interview or interrogation doesn’t matter. If he’s under arrest or prevented from leaving, you can’t use any rules like that. And you have 2 hours before, within a 2 hour period, you have to have notified the public defender. And you have to notify his parents, a guardian, a responsible relative.

And you got to Mirandize them. Yeah. So, no. They can’t use the rules here with juveniles. But you said custodial arrest. So what if they’re not under a custodial arrest and they’re just detained? Well What’s the difference between those 2? It well Yeah. Well, once the detention is, I’m trying to figure out if they’re involved in the crime to where I would make an arrest. So it’s definitely a lesser threshold, but arrest is where they’re actually in custody, and I will transport them to a custodial facility.

Got it. Well, if you have reasonable cause to believe, that the minors committed a crime or violated the order or whatever, then you have to Mirandize them. So if you if if they’re detained and you’re trying to determine, name and, you know, address and and, what are you doing out here, etcetera, I don’t think you have to give a Miranda then. And what if a cop just, instructs a potential witness not to leave? Like, hey, I need to get a statement from you. Don’t leave. Right? They’re they’re not technically being detained. Are they? No.

Well, but that’s this is where the ruse can come into play though. You know, you can say, well, you’re just a witness just to see if they, you know, their witness account actually implicates them in the crime. You know, that’s where subterfuge can kind of sneak its way in here. It’s Yeah. Well, this worse. This particular section doesn’t eliminate that. Right. And that’s if So that still is a potentiality. Yeah. And that’s again a dangerous game because again, I it’s all about what how I it’s like, oh, you’re not under arrest.

I can even proactively say to the gym, hey, you’re not under arrest. I’m just talking to you. But my attention behind that is to use a ruse to get them to implicate themselves in that psychological tactic, if you will. And to to lessen their guard too. Yeah. To disarm them psychologically. It’s yeah. I think so. I think this came up, right, because of the last line that says, except when necessary under the performance of official duties. And then it almost feels like we have to say something like, considering also AB whatever whatever and that law as it pertains.

I don’t know if you named those specific, you know, assembly bills or anything like that, but it just feels like we have to kinda name that a little bit like, yeah, that’s that’s cool except if you would know. Law enforcement officers, this bill prohibits law enforcement officers from employing threats, physical harm, deception, or psychological manipulative interrogation tactics. That’s the rules thing. That’s what you’re describing, Bridal. That’s right. As specified, doing a custodial interrogation. Yeah. So out on the street, all that’s legal. And, of a person 17 years or young. Yep.

So so it’s permissible. Hey. Hold up. I just wanna talk to you about your I saw you play baseball last year. The keyboard there is a you know, you can you can do all that. So that custodial piece, that’s the keyword that basically turns once they’re actually under arrest. Right? Right. That’s what custodial means and interrogation, which is a Miranda category. So just an interview is not interrogation.

I’m just interviewing them, and they’re not Yeah. Let’s say there’s, like, a big melee of juveniles fighting fighting at them all, and you’re, like, doing crowd control. You’re trying to figure out, okay, who was involved, who’s not, but you don’t want anybody to leave at that moment. Right? That’s not custodial. I’m sorry. What’s that term again? The custodial interrogation. Custodial interrogation. Right?

Or they’re No. Because, you know, asking a police officer asking somebody to stay here is is is just that, asking. Yeah. Because we’re sorry. You don’t have to stay. You don’t you could say, no. No. I don’t understand either. I don’t want to talk to you and walk away. Mhmm.

But the the example of of juveniles fighting the officers there to discover the truth. Like who who are the dominant or primary aggressors there? That may require just a mere detention of the juveniles and interviewing them to see who is most responsible. We don’t wanna make a mass arrest type sit where everyone’s under arrest. No. We wanna find out who’s most. The the problem with that is that if I’m gonna say, well, they’re not under arrest and I’m not interrogating them, I can do this. I can say to the juvenile, Halley, hey, your friend over there said that you were fighting and I’m just using a ruse to get them to confess to me. That’s where it becomes a problem. I mean, before this, I mean, you can argue it’s it’s not even a violation of this bill, this law because they’re not under arrest and I’m just using a ruse and they fell for it.

Yeah. This tactic is actually taught by California Post. It’s in learning domain 15 where they call it which is again is a euphemism for a lie. But, yeah, they actually teach that it’s absolutely legal to do this. Almost encouraged in a way. Start trying to use rues at home. I don’t think that’s gonna go too well though. All right, Be careful. I guess it goes back to the original question of true going back to truthfulness. Like, do we need to, like, refer or mention or have language that just refers to this piece of legislation as it pertains to everyone else?

Sure. Without the initial comment that that got flagged from the beginning. Yeah. I have I have no problem putting that in there. I mean, if I if we’re gonna use the law as is, then I would have to I would have to put in there custodial interrogation. But remember that our policies can be more restrictive than what the law says. So that’s a consideration for us also if we do wanna draw the line and say even during a a lawful detention. So we’ll take a stab at that. I’ll I’ll start with the citing the law and talking more about that. But do we want to also discuss just the intentional act versus not of being truthful, if there is such a thing.

I mean, I think this might turn into a philosophical argument also. Yes. That question again. I I was moving about in here. With separating ourselves from the juvenile discussion, which I will put in there, do we wanna have a disc discussion about how we can develop this more on really the definition of truthfulness? Because here it just says you need to be truthful. But what is real truthfulness? Is it anything that I mean, well, I again, we we can get pretty deep in here into the weeds of what being truthful actually means, but I think we also want to possibly carve out the, you know, mistake of facts, assuming that those mistake of facts are not intentional to where, you know, you’re you’re gaining there’s some benefit from it. I don’t know. I’m I’m I’d probably need to do some more research on this.

For identification, the, the welfare and institution code section is 625.7, and it’s pretty descriptive. 625.7, the w 9 code, in regards to, because the holding and custodial interrogations on juveniles. But we’re not we’re we’re we’re we’re putting a pin in the juvenile aspect of it and now just relating this to. Officer truthfulness saying an interrogation. Yeah. I can’t Where are we? Yeah. Yeah. It doesn’t even have to be interrogation. I mean, it could just be truthful in general.

Just, you know, I and I’ll I’ll give you I mean, so in in all instances, I I don’t know how you define truthfulness except to say that if I look at this honesty, veracity, sincerity, to me those are wiggle words. I think there’s a isn’t there a universal understanding of truthfulness? Are you saying there might be shades of it? Well, it’s not so much that. I would say, yes. We all have a universal understanding, but let’s just say a mistake of facts. Let’s say that I showed up 5 minutes late to work today, and the chief says, hey, you’re late to work. And I say, no, I wasn’t. And then my watch, sure enough, shows that it’s it’s 5 minutes faster right on time in my view. Is that truthfulness?

And the truthful. Well, if if you look if this is your scenario. If you’re looking at your watch and it’s wrong, and you’re saying that, Yeah, I’m on time. You know, in order to be deceptive, there’s gotta be an intent to be incept deceptive. What if I change that? Know the difference. If you don’t know the difference, if you, if you, if you report something that’s wrong, but you didn’t know it was wrong. You don’t know the difference between, what the truth is and what is not the truth. So you think you’re reporting the truth that is truthfulness. When you decide later that you know you were wrong, absolutely off base and you can say I was wrong because of these extenuating circumstances.

Then you didn’t intentionally lie to anybody. So it’s a lack of deceit. Yeah. When you, when you, when you, and so I don’t think we have to I think the more words we put in here, the more trouble we’re gonna get in. We’re gonna get in. Yeah. I think truthfulness has to be just what it is. Are you telling the truth, the whole truth and nothing but the truth to the best of your knowledge. And if you say, yes, I am. Okay.

We’re gonna take that as a fact. If we find out that you you knew better or should have known better and was dishonest, that’s lack of that’s that’s a lack of veracity there. Yeah. Because this is this is not a reasonable person thing. I think if a reasonable person would have thought it was truthful, no, we’re not trying to give that kind of grace here. When is this challenge? Give us a scenario or example. And what are you this week, captain or lieutenant? I’m actually acting deputy chief for chief Mendoza who’s on vacation. So can you begin?

Oh, man. I’ve been getting to run this whole time. Brian is fine too. Tegan ask him every week. Bridal. So Brian is better. I like that better. I I Okay. In this situation, you’re just bridal. Yes.

So give us an example of when this may occur or has come up. Sure. An easy 1 would be, vehicle collision. So an officer, let’s say, comes out and sees they start their shift. They see that there’s damage to a police vehicle and they report it to their supervisor. So then the question is was this damage known by the 1 who previously drove the vehicle and did they report it? So then the truthfulness argument comes in of whether they should have reasonably known that this damage exists, and I’m talking about, let’s say, a moderate sized dent in the the the rear panel of the vehicle, not like the whole car is totaled. So there’s a truthfulness allegation. It’s like, you were driving this vehicle. You should have reasonably known, or the question is, should you have known that this damage exists?

And the officer says, no. Then it becomes an argument over truthfulness whether 1 they should reasonably known, and then, you know, that happens quite often. Well, again, there’s an opportunity to test the allegation of whether you’re being untruthful or not. Yeah. I would look at the damages and see what kind of damage. If it’s if it’s, you know, if he just scraped the side of a fence and didn’t know it, I mean, while he was driving, that happens. I mean, truck drivers and buses, they hit stuff all the time and don’t even feel it. So, but if this guy comes in, his veil light is broken out, and and he says, hey, I didn’t know it, but you should have known it. You should have checked the car before. That’s truthfulness.

Even if he says, look, I didn’t lie about anything. No, he was derelict in check in examining your car before you turn the keys in. And so you you were lacking of being truthful in that you did not inspect the car. You you know, I guess when you sign the car, you checked off that you did inspect the car. But isn’t that a different offense, Reggie, that you did okay. He wasn’t being untruthful. He was derelict. He didn’t promptly report something. No. This, well, this is how I saw the procedure happening.

You turn your car in, you got to inspect your vehicle, stop me when I’m different from what you do in open, Bridal. You have to turn your car in and you go and for the record, you sign your name or check out, I turn in car 1234. No, I change. Okay. Right? So then, the next guy gets the car, comes out in a taillight. I mean, the headlight is busted out. So either it was busted out from the time you got out the car and turned it in, or you never checked the car. So there’s a truth in the issue. Okay.

So if that’s process and procedure, the prerequisite before you can turn in your car, you walk around it like when you pick up a rental car and see what kind of dents are in the car and you you you report those. That that and correct. Stop me, Bridal, if if this is wrong now, if if it and you do that with cars, you do that with radios, right? You do that with all of your equipment. We don’t have a turn in inspection. It’s the, you check out inspection. So you turn the car in any kind of way you want. Well, I mean, but remember we, and we talked about this section when we first started this ad hoc was there’s a presumption. So it’s always the presumed last person who would take the blame for the damage. So it would be in their best interest to do an inspection before they turn in.

We we we need to change that policy then. If you wanna if you if if this is such a big thing, if this is the if this is, if this is a roadblock to truthfulness, to understanding what truthfulness is, then they need to they need to check their equipment, if that’s the best example you can come up with. Otherwise, I saw truthfulness is, I saw him run out of the bank, and he was he shot off 5 rounds, And the guy you said did it wasn’t even in the state. You’re lying on a police report. That’s what I’m saying truthfulness is. Yeah. That’s it. That’s a good that’s an extreme example, but the the collision issue and and then I’ll just take a step back. It’s let me let me create a different situation. It’s it’s not the damage that’s in question, it’s who caused the damage.

So was it an officer backing into something, or while they’re out of the car and inside one’s home taking a police report, someone hit their car and drove off. So so we’re now split. It was like, did the officer cause it or did someone, is the officer a victim of a hit and run? I’m taking the officer’s word for it. If he says that he, you know, we can’t have a system where, with that a person who’s asking a question of a police officer, can avoid having to assume that they have taken an oath of office, and they are telling the truth. We’re supposed to be hiring highly ethical people who are truth tellers. Our issue for OPD has not been that. The issue for OPD has been the lies on police report that later on were overthrown by video or audio evidence. That’s where the problem is. That’s where the people who, have a concern about, the veracity of the police department, they say, because you’ve been caught several times writing something 1 way, and after they looked at the video evidence, that’s not it.

That’s why we got video cameras now. We only got them not because we didn’t have any place else to spend the money. We got them because OPD was caught incessantly, lying on police reports. Yeah. So all your points are spot on. I so here’s the other side of this too. So if you’re all familiar with task 45, it talks about the consistency of discipline. As a commander, let’s say that I just don’t like someone. It’s so easy for me to put a truthfulness case on them. And then we’re now arguing over whether it was objectively right to discipline them or terminate them really for truthfulness.

And that’s what we wanna avoid also. It’s it’s I want to give commander supervisors a clear path of this is a clear truthfulness issue and you need to investigate it versus, you know, you ask the officer, did you follow policy? And they say, yes, I did. But they actually didn’t, but in their mind, they thought they did. A nefarious supervisor or commander can just say, oh, you’re being untruthful. You know, and that just adds a lot of stress when 1 is now being accused for truthfulness when when, you know, in their mind, it’s just good faith. So is that the exception of the norm? If if if if we got a if we got a a 100 cases around truthfulness, is that 1 or 2 times or is that 50 times? It’s it’s more likely than not, than 1 would not be sustained for truthfulness, like more exonerate. But it just shows that we do cast a wide net because we do investigate.

Well, yes, we do get truthfulness terminations, but the exonerations and not sustains far exceed that or unfounded far exceed that. Well, I think we may be, making a mountain out of a molehill. The issue is not for OPD. The issue is not the commander who is harassing some officer around making up some weak case, and labeling it truthfulness. That’s the exception. The overwhelming majority of the cases overwhelmingly for decades is writing something in a police report that is not the truth. That has been the problem. Yeah. Or are you interviewing somebody after a shotgun blast with less lethal, ammunition came out and hit a journalist in the side of the head and you interview, 25 officers and everybody says they didn’t hear nothing and they didn’t see nothing on Bridal. Where it’s like a valley, an echo.

How could you not hear that? That’s what we’re talking about. That’s the truthfulness that I don’t want to get a major in the minor on truthfulness with our issue that we’re the dragon we’re trying to slay is police reporting veracity. That’s what we’re trying to get at. Yeah. At least in my mind, that’s what we kind of get at. And if I, if I stand alone on that, then, I fine. Any Well, I I think I’m aligned with you in in in so far as there’s a universal understanding about truthfulness, and there’s an opportunity to challenge any allegation of untruthfulness. So without trying to provide any shade of truthfulness or mitigating anything around this particular provision. I would I I honestly would leave it as it is.

Yeah. Because we we start dicing this thing up, and you just giving someone a a get out of jail free card. Yeah. Yeah. That’s fine. I’ll, I’ll add the juvenile stuff in here, and then we can see where we go from there. It’s fine. Okay. The last 1, which you probably don’t have time for, because this is a whole section in itself is, use of force level 1 through 4. This will be a heavy discussion.

So what are we are we ending that now, or are we skipping this? Well, there we we have a lot of sections to talk about, but, over the past few weeks, I think we wanted to focus on the heavy ones, just be the most common ones, and that’s where we’re at. So they we bold it down to 4. So assuming we fix the custody of prisoners, truthfulness, etcetera, then this would be the last of the heavy, and then we can continue on from there. Okay. And can you, can you tell me a little bit what’s the level 1 through 4? There’s just, like, different levels, different examples, or there’s, like, a section for each level. How does how does that all break down? Sure. And I have it all written here.

Basically, all force that we use has a particular level to it. Level 1 being the most severe, so any use of force resulting in death, for example, that would be a level 1. And there’s a whole process that goes with that type of force. A level 2 would be, for example, If I if I use force against 1 who is handcuffed, that would be a level 2. If there was a canine bite, on a person, that would be a level 2 impact weapon, like a baton to someone. Level 3 would be use of mace, use of a taser device on them. That would be a level 3. And the level 4 would be, physical prowess, putting my firearm at someone, etcetera. So and there’s much more to that, but those those are the general levels. So when someone says, for example, the officer used unreasonable force on me, it doesn’t matter which level.

We would investigate it as a level use of force lehi 1 through 4, and it’s very vague because it just says the use of force shall be restricted to circumstances specified department law policies and law. And as you see here, it it carries a pretty heavy weight. And what we’re saying is it’s so there’s 2 ways of looking at this is, let’s say that I use, physical problems against someone. I twist their arm to put, to overcome the resistance to handcuff them. If the department says that I violated this section, it almost assumes that I used excessive force when similar to custody of prisoners, like, well, we’re not saying excessive force. We’re just saying that there’s a better way for you to do that. But there’s only 1 category here, which is a level class 1 offense. So that’s where this conversation’s being steered towards. So I’m sorry. So but then depending on whether it ends up landing, determine whether it’s ends up being 1 through 4, that has implications on where it lands on the matrix, or the matrix just has 1 section for use of force.

How does the corresponding matrix? Yep. It’s right here. So it is just a class 1, and the first offense is counseling determination, which is very wide. Suspension, 3 to termination, and termination. Now there’s there’s aggravating and mitigating factors here. Obviously, if if we determine that the force is excessive, termination will be a likely scenario. But let’s say that there’s a procedural lapse or the force, like, the intent there it’s a violation of policy, not so much the law, and, yes, there is a difference. However, the the the subject didn’t suffer any injury because of the force. There might be a, an a mitigating factor there that might land him in in this lower category.

So it it depends. But, yeah, it’s it’s quite complicated because level ones, you know, like, can I just do a let’s say if I shoot someone, is that can that be a procedural error or is that more excessive force category versus level 4 where I I should’ve you should’ve used more verbal persuasion before I went hands on and twisted their arm a little bit to put handcuffs on? But as you see here, there’s no it’s all in the same category. Would this be 1 1 of those categories that you would consider having different levels or having a class 2? Yeah. I would. And remember, there there are our use of force policy, which was written in collaboration with the commission, has a lot of technical violations. And all and 1 example of that is, I pull my firearm at someone, and, in that policy, it says there when reasonable to do so, and if appropriate, I I tell the person why I pointed that firearm at them. If that person claims that I use excessive force and I’m being investigated for this very section, 1 can argue, well, you violated k 3. You violated the policy because you didn’t tell the person why you pointed your firearm.

And so this is where it’s like, well, is that what this section is really intended for? But, yeah, As you can imagine, we get a lot of these allegations because anytime we use force against someone, usually there’s, you know, disagreement with that. So we we levy a lot of these complaints, and that’s why it’s on the on on the top of the list where we get most complaints top 3 easily with this section. They result in a lot of exonerations and unfounded or not sustained because they did things according to procedure. But, maybe there’s room for for room here. Which kinda leads me to that class 2. Right? Because maybe if there’s only a class 1, they end up getting exonerated. But if there was a class 2, then we could determine they should have just still done better. Yeah.

Right. I think that yeah. Would these different classifications lehi 1 through 4 naturally be divvied up? Like, ones and twos are a class 1, and threes and fours are or that’s very nuanced too. That could be, like there could be 4 levels within each classification. The reclassification well, I don’t know if if when we began this conversation, because I know this 1 was highlighted, whether we do wanna talk about reclassifying force. I think that’s a definitely a broader discussion than what we’re talking about here. Possibly, where let’s say there’s a level 1 use of force where by default, it would automatically be assumed to be a class 1 allegation versus the lesser forms of force. The pro the challenge with that is that officers are more likely to use a level 4 use of force than a level 1, 2, or 3. And if now knowing that it’s just a class 2, you know, it can it can be like, well, I I you know, there’s there’s minimal accountability associated with that.

So that’s the dangers of doing that. We’d hate to see an uptick of of, class 2 use of force violations because folks were like, well, it’s gonna be a stop in the risk. It’s not a level 1 termination anymore. So Yeah. We have to do this now. Right? And then that kind of just spikes a little bit. That would be an unintended consequence that we really would wanna avoid. Yeah. Okay.

I mean, I do think these initial discussions around use of force are helpful, as we attempt to dig deep into it. You know? But no doubt it, we definitely gonna need some some more time, maybe even a full meeting to cover the actual use of force itself if we’re gonna tease out. Are there any potential suggestions or things that you may be able to pitch or draft to us for us to think about for next time around you so far? Certainly. Just starting from scratch, but we can kind of see where you’re going from there, and then either agree or disagree. Anyways, but at least it gives us a starting point in terms of, like, how we could start peeling back a little bit of the layers of this onion. Yeah. Certainly. Oh, sounds good.

Well, let’s do a time. What time is alright. We’re about 15 minutes out till 8 o’clock. I think this sounds like a a good place. I think, is there any other just thoughts around this that that we would all wanna think about or digest before we come back? Or is there anything that you would recommend, Brian, for us to maybe look into further or kind of just is there any research or anything that we can do to kind of, like, better prepare for this? Because it does feel like this is a little nuanced and layered, or we just kind of take your direction on kind of some of your ideas of how we did kind of tease this out a little bit. Well, I I know we’re gonna be away from each other for about 2 weeks. So I will get this done. I’ll send it out so it can you can digest it in the next 2 weeks, and then I’ll probably resend it just leading up to our January meeting just so it’s fresh.

But, I would say putting eyes on it early and just sit with it and see if anything pops in your mind. Always a good idea. Excellent. So we will the next 2 Wednesdays are Christmas day and New Year’s day, and we will reconvene January 8th. Hey. Happy holiday. Correct? That’s right. You got it. Happy holidays, everyone.

Happy holidays. Happy holidays. Bye bye. Congratulations to the new author. To the new author, congratulations. Thank you. Thank you very much. I appreciate it. Yes, Charles. You better invite us to the book signing.

Oh, yeah. How’d you know that? How’d you know that? Gotta get my copy. Can we preorder? Where’d we preorder at? We’re actually gonna do a preorder event, I think, at EOIDC. So I’ll let you know. We’ll we’ll get the date together. It’d be closer to the end of the month in January.

Can you sign my copy? Of course. Yes. You don’t even need to ask. That’s exciting. Thank you. Thank you. And I don’t ran all everybody off the call now. You’re doing a job. Matt, mister chair, you’re doing an amazing job.

Yes. He is. And thank you. Make it. Thank you, Deputy Chief Hubbard. I hope we could just keep that title because it works. Looks good on you. It has a nice ring to it, doesn’t it? Yes, it does. Yeah.

You know, I just, you know, I can’t I can’t, you know, continue to express how much I appreciate you all. Brian acting captain, deputy acting deputy chief, wordsmith and extraordinaire. You know, I just really appreciate you and I hope you have find some time to get some rest, eat some good warm food, some hot tea, and, spend some good time with your family over these holidays. We know that the job is a tough demand and you can’t always get that, but anywhere you can squeeze that in, please do so. Per our orders here at this per these ad hoc orders, man, you can get some rest, brother. Just a couple weeks ago. Got it. That’s right. So you can come back and and continue all this progressive, advice Sure. And counsel to us.

Of course. Alright. Alright. And you could take that same advice, mister chair. Absolutely. Absolutely. Says the person as busy as than ever even in retirement. Hey, now what would you expect? Well, and that’s why we do what we do for the city and, the city is lucky to have us here in this commitment. And yeah.

We’ll we’ll get hey. It’s okay to pat ourselves on the back sometimes, you know? That’s exactly correct. And so with that, we will bridal this meeting to a close and call it a break for 2 weeks and reconvene in 2025. All right, everybody be safe. Thank you. Take care. Bye bye.

Author

Tom Wong

I am passionate about mentoring minority and at-risk youth and their parents, solving complex problems, and helping others achieve their potential. I aim to give back to the community by serving as a voice for parents, children, and the conservatives of Alameda County.