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A federal judge issued a preliminary injunction yesterday that prohibits Oakland police from using rubber and wooden bullets, “Stinger” grenades, and pepper balls, and limits their ability to use tear gas. The judge’s order was in response to a lawsuit filed by the Anti Police-Terror Project last month alleging that police violated the constitutional rights of protesters in Oakland by using tear gas and other less-lethal weapons against them during recent protests against police brutality and systemic racism.
In many ways, Judge Joseph Spero’s order is a restatement of the Oakland Police Department’s existing crowd control policy, which already bans officers from using rubber and wooden bullets and “Stinger” grenades. (“Stinger grenades” shoot tiny rubber balls in all directions when they explode.)
Spero decided to continue to allow OPD to use tear gas and large-caliber foam-tipped bullets, but only when “there is an imminent threat of physical harm to a person or significant destruction of property,” and when “other techniques, such as simultaneous arrests or police formations, have failed or are not reasonably likely to mitigate the threat.”
But perhaps the most important part of Spero’s order concerns the conduct of law enforcement officers who don’t work for the city of Oakland. His order says if the Oakland Police Department asks outside agencies to come into Oakland to help out during protests or other events, which it can do through a system called “mutual aid,” it’s OPD’s responsibility to ensure that those officers follow Oakland’s rules.
During the recent protests and civil unrest that followed the killing of George Floyd in late May, numerous officers from outside agencies, including the Alameda County Sheriff’s Office, came to Oakland and used various types of force against crowds of protesters and rioters.
The Oaklandside investigated the actions of OPD officers and sheriff’s deputies during one protest on June 1 in which multiple demonstrators were injured by tear gas, which was fired into a crowd by both OPD officers and ACSO deputies, and by weapons like “Stinger” grenades, which were apparently used by sheriff’s deputies but are banned in Oakland.
OPD claimed officers fired on the crowd because protestors were preparing Molotov cocktails—bottles filled with flammable liquid and thrown while lit—to use against the police, but has yet to provide any evidence to support this claim. Our investigative report, which reviewed hundreds of photographs and dozens of videos from the scene, found that protestors likely threw two water bottles toward a line of officers, but did not turn up any evidence that anyone was preparing Molotov cocktails or other incendiary explosives.
Spero even remarked during yesterday’s hearing on the absence of evidence for OPD’s claim, asking a city attorney about it. “So I guess the one question I would ask, and it’s for you Mr. Pereda, is I was actually surprised you don’t actually have a declaration from someone who actually saw somebody throw a Molotov cocktail,” said Spero.
Deputy City Attorney David Pereda responded that the city is still investigating.
Should outside officers have to follow Oakland’s rules?
During the hearing, city attorney Pereda argued that Oakland shouldn’t be responsible for the actions of officers from outside agencies. “If it’s not OPD officer conduct, the city is not responsible for that,” he said to Spero.
Dan Siegel, one of the attorneys for the protesters, disagreed. “One of our clients got hit in the eye and most likely will lose his eye as a result of getting hit there with a rubber or wooden bullet, which was actually recovered from the scene,” said Siegel. “I assume it was one of the mutual aid forces that fired it.”
In his decision, Spero required OPD to brief law enforcement officers from outside agencies beforehand about Oakland’s policies. OPD must also make sure that those officers “do not bring or use any weapons or force prohibited under OPD’s policy.”
“This is an important step in protecting the rights of protestors to be free from excessive force by OPD and especially from mutual aid forces—especially the Alameda County Sheriff’s Department,” Siegel told The Oaklandside. “The order also allows us, for the first time, to hold individual city officials and police officers accountable by seeking contempt citations for violations.”
In addition to limiting the kinds of weapons that OPD can use against crowds of protesters, Spero’s order also requires Oakland police to wear face masks and gloves whenever they interact with members of the public at a protest.
The order could affect whether Alameda County Sheriff Gregory Ahern is willing to continue sending his deputies into Oakland during protests and emergencies. In early June, after several Oakland councilmembers proposed a tear gas ban, Ahern had a letter sent to OPD interim Chief Susan Manheimer warning her he would not provide mutual aid if the ban went into effect.
Ahern also provided a similar warning to the Berkeley Police, according to a recent memo written by Chief Andrew Greenwood.
“It is our clear understanding that if a city or Department restricts mutual aid agencies from the use of crowd management tools to protect themselves from violent encounters, the Alameda County Sheriff’s Offfice will not provide mutual aid, and other mutual aid agencies’ Chiefs will make the decision for their agencies, and likely follow suit,” wrote Greenwood.
Jim Chanin, an Oakland civil rights attorney who is not directly involved with this lawsuit, said Spero’s decision largely restated the policies that Chanin and other attorneys negotiated with the department after past violent incidents between police and protesters.
“The decision is mostly putting the crowd control policy that Rachel Lederman and I wrote into a court order,” said Chanin. “The one exception is what the plaintiffs got regarding mutual aid. I think they got more than what was in the existing policy because it clearly makes OPD responsible for the activities of mutual aid officers they call in.”