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Crossing the Line: The Oakland Police Department Versus the Crowd 

Wednesday, Aug 7 2013

Page 2 of 5

To ensure OPD's compliance, Judge Henderson placed the crowd-control policy under federal court jurisdiction for three years. If police violated the policy during that period, the court could step in to enforce it.

The three-year court supervision ended in late 2007, after an uneventful period for political dissidence in Oakland. But just one year later, BART officer Johannes Mesherle shot passenger Oscar Grant in the back as Grant, who was unarmed, lay face-down on the platform at Fruitvale station. For the first time since its adoption, the crowd-control policy was put to the test: Grant's death triggered waves of protests and riots, and it quickly became clear from OPD's handling of these protests that the policy had not reformed the department. Just when federal enforcement of the crowd-control policy became more crucial than ever, the court's oversight had vanished.

Large protests flared at virtually every step in Mesherle's ensuing criminal trial. He was initially charged with murder in Grant's death, but the charge was reduced to involuntary manslaughter. On Nov. 5, 2010, Mesherle was sentenced to two years in prison, with credit for time served.

Later that evening, Grant supporters set out from downtown Oakland toward Fruitvale station in protest of the sentence. During this march, Lederman says, "We saw that police had pretty much dispensed with the crowd-control policy." In fact, the events of that evening — and the revelations of the legal battle that followed — call into question whether the crowd-control policy had ever been properly instated in the first place.

The policy contains specific instructions for managing large crowds, including requirements that police declare an unlawful assembly, issue a dispersal order, announce routes by which the crowd can disperse, and give adequate time for demonstrators to do so before making a mass arrest. However, the march didn't make it far before it was hemmed in by OPD. After surrounding the 150 demonstrators, an Oakland officer announced over a loudspeaker, "This has been declared a crime scene and you're all under arrest." None of the provisions for mass arrests outlined in the policy had been followed. (OPD did not return repeated requests for comment, but did provide crowd-control training records in response to a California Public Records Act request.)

Dispatch records revealed that only 10 minutes into the march, Deputy Chief Eric Breshears instructed former Capt. David Downing, who was responsible for crowd-control that night, "The first opportunity you can, set up a surround to arrest. We'd like to employ that." He later added, "I'd like to not have the crowd cross Oak Street. If you could envelop and arrest before that, that would be great."

Once the march was surrounded, Downing asked, "Do we want to make announcements for unlawful assembly or they're already just under arrest?"

Breshears replied, "Affirm. Based on their activity over here, the vandalism that's occurred, affirm that it's unlawful assembly. You are to arrest everybody that's within that perimeter."

Despite Breshears' mention of vandalism, only two of the arrestees that night were ever charged with a crime, and demonstrators allege that the march was overwhelmingly peaceful.

It's unclear whether Breshears intentionally disregarded the policy when he gave the mass arrest order, or whether he was unaware of the requirements for mass arrests. Although the policy requires all officers be trained in crowd-control and receive "periodic crowd-control refresher training" throughout their careers, OPD's records indicate that regular training did not take place. Breshears' most recent training at the time of the arrests was a two-hour course in June 2009. Prior to that, he had attended two training sessions in 2005, when the policy was first instated.

Once again, the NLG filed suit against the department on behalf of demonstrators.

In a March 29, 2012, deposition, Downing admitted that he was unsure whether officers had ever been trained on crowd-control beyond his first one in 2005. When asked when he had received the training, Downing said, "More than likely a few years ago when the policy first came out and I know I had probably received at least one other update training during one of our command session training dates." He said he could not recall when this update training may have taken place.

"Was it prior to 2010?" Lederman, who was taking his deposition, asked.

"Yes, I would say at least that," he responded.

"Was it prior to 2009?" she asked.

"I can't recall to that specificity," he responded.

When asked if he had attended any crowd-control training since the mass arrests, he said no.

Downing had, in fact, attended two training sessions in 2005 and two sessions in 2009. His total training amounted to nine hours over the course of his career with OPD. From 2009, when the department's crowd-control policy fell out of court oversight, to 2012, when it earned hefty criticism over its handling of Occupy Oakland protesters, OPD held no trainings on the policy.

Thomas Frazier, the compliance director who oversees OPD's progress on the reforms mandated by the Riders settlement, wrote in a June 14, 2012, report that the department needed to improve its training on the crowd-control policy. Earlier that year, former police Chief Howard Jordan said that all OPD officers would undergo training by April 30. But in a June 14 memo responding to the Frazier report, Jordan wrote that development of the crowd management training curriculum was under way. It also stated that crowd-control training of all personnel was ongoing, despite the fact that the curriculum had not been completed.

In June 2013, the city of Oakland settled the Mesherle sentencing protest lawsuit for $1.025 million.

The year following Mesherle's sentencing, a new form of political demonstration took root in downtown Oakland — an encampment inspired by the Occupy Wall Street movement. Oakland demonstrators set up tents in October 2011.

In the wee hours of Oct. 25, 2011, Oakland police raided the camp, beginning their first of several battles with the Occupy movement. Over the next few months, OPD made hundreds of arrests, inflicting injury along the way.

About The Author

Kate Conger

Kate Conger has written for SF Weekly since 2011.


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