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Last week, with the election on the horizon, the Oakland Police Department asked a federal judge to ease restrictions on the kinds of weapons that law enforcement agencies can use on protesters in Oakland. OPD and the city pleaded for the changes after multiple Bay Area police and sheriff’s departments told Oakland that if the city asks for help, they won’t show up because they can’t use banned weapons on protesters.
“It is prudent for the City to anticipate and prepare for significant, extended protests next month,” David Pereda, an assistant city attorney wrote in a court brief. “To begin with, there are widespread reports that due to delays caused by the pandemic or legal challenges, the election’s outcome may not be certain for some time. Further, President Trump’s tweets and remarks about the elections and his acceptance of their results—such as his comments at the recent debate—are of concern and could incite mass protests.”
U.S. District Court Judge Joseph Spero first issued the ban on using certain types of “less-lethal” crowd control weapons like rubber bullets following a controversial police crackdown on protesters in May and early June. Spero also restricted the use of tear gas and other “crowd control” weapons to a very narrow set of circumstances. And crucially, he ordered the Oakland police to ensure that no other law enforcement agencies coming into Oakland—through a process referred to as “mutual aid”—bring these banned weapons with them, or violate other city policies that are supposed to protect the constitutional rights of protesters.
Alameda County Sheriff Gregory Ahern has repeatedly objected to these limits. He wrote in an August 3 letter to OPD interim Chief Susan Manheimer that his agency will not provide Oakland with mutual aid because of the ban on using rubber bullets and other weapons, which he feels will put deputies at risk of injury.
Since then, the police departments of Fremont, Newark, Union City, and San Leandro, and the San Mateo County Sheriff, have all sent letters or emails stating they won’t send officers to Oakland to help OPD.
“[A]s things stand, mutual aid remains unavailable, the elections loom, and the City should be prepared for potential mass protests next month,” Pereda wrote in a court brief pleading for a change.
Last Saturday, Spero responded to the city’s concerns by modifying the injunction. He removed a stringent section that states that mutual aid officers have to follow the same rules as Oakland police. He wrote that if OPD makes “reasonable efforts” to request mutual aid under the terms Sheriff Ahern and others have rejected, and no mutual aid arrives, then OPD can request help under less stringent terms.
“If OPD does not have an adequate number of officers for any upcoming election-related demonstrations, there is a risk not only to the safety of officers, but also to the safety of the general public and of the demonstrators themselves,” wrote Spero in his Saturday decision. “Accordingly, the Court finds that the lack of mutual aid, combined with the potential for large-scale demonstrations related to the upcoming election, constitutes a significant change[.]”
Although several Oakland police commanders and attorneys for the city wrote in court briefings that they believe there could be large-scale protests in Oakland requiring mutual aid, the department told The Oaklandside in an email today that “at this time the City is not aware of any specific events planned to take place in Oakland.”
Dan Siegel, an attorney for the protesters who brought the lawsuit against OPD that led to the injunction, said he doesn’t actually think Spero’s change will be enough to convince the sheriff and other police to send mutual aid. “The amended order is designed to give Oakland additional arguments it can make to convince Ahern and the others to provide mutual aid,” said Siegel. “It is unclear to me whether it will make any difference.”
Siegel believes that under the law, OPD is still responsible for the conduct of mutual aid forces, including the types of weapons they use.