Department declines to offer evidence substantiating Chief's assertions, downgrades them to 'preliminary belief'...
By Ernest A. Canning on 11/7/2011, 7:01am PT  

Guest blogged by Ernest A. Canning, with Brad Friedman

The Oakland Police Department is walking back widely reported comments offered by its Interim Chief, Howard Jordan, at an Oct. 25 televised press conference (video posted below) that law enforcement "had to deploy gas in order to stop the crowd and people from pelting us with bottles and rocks."

The press conference had been conducted shortly after a melee which included the deployment of chemical agents on peaceful demonstrators. The police use of force resulted in injuries to, among others, a two-tour Iraq veteran who sustained a fractured skull and was admitted to the hospital in critical condition. The violent confrontation raised questions about the legality of the procedures carried out by the OPD and the 15 other law enforcement agencies that cooperated in the multi-agency task force.

In response to questions emailed by The BRAD BLOG to the Oakland PD's Chief of Staff, Sgt. Chris Bolton conceded that the department was unable, at this time, to substantiate claims made by Jordan that gas was deployed in order to protect law enforcement personnel from violent demonstrators, despite the Chief's unqualified claim that evening that "the deployment of gas was necessary to protect our officers and protect property around the area and to protect injuries to others as well."

Instead, Bolton softened Jordan's initial claim. The sergeant described it as "the Chief's preliminary belief."

Jordan failed to qualify his statements as a "preliminary belief" at the time he addressed reporters about the use of CS gas during his televised Oct. 25 press conference. Indeed, the Interim Chief spoke of the necessity to deploy chemical agents "to stop the crowd...from pelting us with bottles and rocks" as if it were an established fact.

We sent our questions to the OPD on the heels of a detailed analysis of video taken during the late night confrontation at 14th and Broadway, as well as interviews with eye witnesses conducted last week by The BRAD BLOG. In our own investigation, to date, we have been unable to unearth evidence to support Jordan's assertion that the police initiated the assault in order to defend against either projectiles or any other threat of imminent violence from demonstrators. In fact, the video evidence included in our report reveals that law enforcement officials had determined to use tear gas on the crowd long before any threat was posed by demonstrators.

Our investigation also concluded that the OPD's actions were likely in violation of both California state law, as well as in direct contravention with an OPD Training Bulletin created as part of a mandate following a federal consent decree signed by the department after a similarly violent confrontation with peaceful demonstrators back in 2003...

The Walk Back

"It is the Chief's preliminary belief, as expressed at a press conference, that CS gas [tear gas] was initially deployed in order to address imminent violence or threats to officer and public safety," Bolton wrote in response to our questions. We had sent the queries, along with a link to our detailed published analysis, as we explained, to provide OPD "a full opportunity to respond to the content of that article."

Bolton declined to directly answer whether OPD still stands by the remarks Jordan made at the presser, claiming it would be "premature" to do so "prior to a complete and thorough investigation."

He did concede, however, in response to a question about a gas canister being hurled at the feet of a group of demonstrators attempting to aid the fallen Iraq veteran, Scott Olsen (as seen in this video), that "Deploying force with intent to prevent first aid would not be within our policy."

Explaining that he was "a veteran of a foreign war, as are many of my fellow officers," Bolton wrote "The public's concern is understandable and deserving of investigation and finding."

Bolton advised The BRAD BLOG that OPD is engaged in "operational reviews and associated investigations [that] will address the type and manner of all force used."

"We are in the process of debriefing all outside agencies, interviewing officers, arrestees, complainants, and witnesses," he said. "We are also reviewing all relevant documentation and evidence."

The investigation, however, did not keep Interim Chief Jordan from making very specific claims about supposedly violent behavior from demonstrators on the night he was responding to media on live television.

Unpublished OPD video?

In his initial response to our public records request for any OPD video recorded before the initial use of gas on demonstrators on 10/25/11 at 14th & Broadway which might substantiate Chief Jordan's assertions, Bolton responded that "OPD is in possession of video for certain times and locations." He declined to release it in response to our public records request at this time, citing the departments "on-going investigation."

"This video is part of an open and on-going investigation and will not be released at this time," the OPD Chief of Staff wrote. "As the investigation is furthered, and more and more video is reviewed and catalogued, we may release video to the public."

In response, we reminded him, in a follow-up query citing a 2009 state appeals court opinion (County of Santa Clara v. Superior Court), that "a public agency may not 'shield a record from public disclosure, regardless of its nature, simply by placing it in a file [labeled] 'investigatory.'"

Our follow-up note asked directly: "Is your department in possession of video, other than those that have been publicly released, that specifically pertains to that specific event?" and added that even if "the video, itself, is shielded from disclosure...that would not prevent you from informing [us] whether your department is in possession of videos that might shed light on the circumstances surrounding the initial decisions to declare that specific gathering at 14th & Broadway 'an unlawful assembly' and the decision to deploy CS gas."

Bolton's reply: "My initial response regarding video stands as we have not reviewed or inventoried all evidence, video or otherwise."

According to the federal consent decree-mandated 10/28/05 OPD Training Bulletin [PDF], created in the wake of the 2003 incident in which Oakland officers engaged in inappropriately violent action against anti-war protesters, while video of a demonstration recorded by police "shall not be disseminated with other governmental agencies" absent "evidence of criminal activity," that rule does not relieve OPD of its obligation to comply with the CA Public Records Act.

Moreover, the OPD Training Bulletin also requires camcorder operators to "write a supplemental report at the end of his/her duty assignment documenting the camcorder operations." Bolton did not volunteer specific details of any such reports. If relevant video was obtained, its existence should be readily ascertainable.

'Preliminary belief' or premature speculation?

Sgt. Bolton's reticence to express OPD's position on what actually took place on the night of 10/25/11, pending the completion of a full investigation, might otherwise be commendable, but for the fact that Interim Chief Jordan displayed no such reservations in announcing, during his televised press conference following the violence, that "we had to deploy gas in order to stop the crowd and people from pelting us with bottles and rocks."

As we detailed in our previous report, the accuracy or inaccuracy of that remark is central to the determination of whether the OPD's declaration of an "unlawful assembly," and the order along with it to disperse, was itself an unlawful order. If, in fact, it was, it would render the decision to deploy CS gas similarly unlawful.

As explained in the 2005 OPD Training Bulletin:

The police may not disperse a demonstration or crowd event before demonstrators have acted illegally or before the demonstrators pose a clear and present danger of imminent violence.

According to Bolton, Interim Chief Jordan was not present at the confrontation, so he lacked personal knowledge upon which to make his statements to the media. At best, he relied upon unsubstantiated accounts relayed to him by subordinates --- most likely from the Incident Commander (Deputy Chief E. Breshears, as per Bolton) and not from the heavily-armored San Francisco Emergency Service Unit Deputies who were manning the police line directly behind barricades across from the demonstrators.

"Incident Commanders typically command from a command post or from within the Emergency Operations Center," Bolton explained. If so, the question remains as to whether on-scene commanders were themselves witnesses who could attest to whether anyone in the Occupy Oakland gathering at 14th & Broadway had thrown anything at the SF ESU Deputies before the command decisions were made to (a) declare the gathering an "unlawful assembly" and (b) to deploy gas.

Interim Chief Jordan might have displayed the same reticence when responding to national media at his press conference as Sgt. Bolton has displayed during his missives with The BRAD BLOG. But he did not. In the bargain, the national media relied upon the Interim Chief's unsubstantiated remarks and his unqualified claims that police were "necessarily" responding to violent demonstrators in order to protect themselves. Those assertions were then widely disseminated by the corporate media as "news."

In that regard, Bolton's inability to say that OPD stands by Chief Jordan's remarks, or to supply evidence in support of it, absent completion of a thorough investigation, would seem to speak volumes.

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ABC video of OPD Interim Police Chief Howard Jordan's entire Oct. 25, 2011 press conference follows...

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UPDATE: Earlier today, the ACLU of Northern California submitted a three-page letter to Sgt. Christopher Bolton [PDF], the OPD Chief of Staff quoted in the story above, in which they objected to his reliance upon the exception to the department's disclosure obligation under the Public Records Act.

The ACLU argued that the exemption did not apply to records that were required, not as part of a criminal investigation, but required by OPD's Crowd Control Policy.

At its website, the ACLU described Bolton's decision to withhold records as "misguided." OPD's response, the ACLU stated, "underscores the gap between its policy and practice. The agency has a great Crowd Control Policy, but doesn't abide by it."

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Ernest A. Canning has been an active member of the California state bar since 1977. Mr. Canning has received both undergraduate and graduate degrees in political science as well as a juris doctor. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).