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Oakland Police Officer Matt Neff used excessive force when he allowed his police dog to maim two 18-year-old men during a search for armed robbery suspects in East Oakland in 2019, according to OPD discipline records and Police Commission records released Friday.
OPD’s investigation into the incident also concluded that Sgt. Alan Leal, Neff’s supervisor, contributed to the wounds suffered by the two youngsters by telling Neff to keep his canine “on the bite” as its teeth were clenched on one of the 18-year-olds. Neff’s canine, “Bas,” bit one of the young men for 2 minutes and 24 seconds, chewing his right leg to the bone, according to OPD records.
The teenager was hospitalized for three weeks and needed surgery and a skin graft to repair an eight-inch wound. Bites to the other 18-year-old required five staples on his scalp. His neck, shoulder, hand and thighs were also pierced by the dog’s teeth, in bites lasting a minute and 24 seconds.
Neither of the 18-year-olds were charged with a crime, but they had fled and hid along with two others when officers arrived to a report of an armed robbery along Skyline Boulevard on April 17, 2019.
OPD’s Internal Affairs Division, which investigates use of force incidents for possible misconduct by officers and makes disciplinary recommendations to the chief of police, initially cleared Neff and Leal of wrongdoing. But the department’s Executive Force Review Board, a panel made up of three deputy chiefs or captains, later overturned IAD’s findings and ruled that the use of the dog to bite the two men was not within policy. OPD also found Leal, as supervisor, failed to properly perform his duties in regards to translation services for the Spanish speaking suspects, neither of whom could understand commands that were being given to them by officers.
Although the incident was controversial, the department’s handling of the case was praised by Robert Warshaw, the independent federal monitor overseeing OPD’s reform effort, as a step in the right direction.
Warshaw wrote in a report that the EFRB’s decision to overturn the Internal Affairs Division’s findings, and discipline Neff and Leal, shows that OPD can thoroughly examine serious use of force cases and come to the proper conclusion. The decision was one of the first by an Executive Force Review Board after the department’s mishandling of the Joshua Pawlik fatal shooting investigation, which caused OPD to backslide and fall out of compliance with one of the tasks required of it under the Negotiated Settlement Agreement.
The dog bite case came to light for the first time on Friday when OPD released a trove of documents under the new police transparency law, S.B. 1421.
The 2019 incident was the first dog bite case released by Oakland police under the landmark law that requires law enforcement agencies to release records pertaining to use of force causing great bodily injury and all police shooting records, including investigative files and discipline records. Because the law gives law enforcement agencies discretion on how to define “great bodily injury,” few Bay Area departments so far have released dog bite case files.
By all accounts, the injuries to the two 18-year-olds met the definition of great bodily injury. The dog bites were investigated as Level 1 and Level 2 uses of force. Level 1 is the most severe level of force used by an officer, best known for police shootings ending in death. Its definition also includes force that causes serious bodily injury, from loss of consciousness to “protracted loss, impairment, serious disfigurement, or function of any bodily member organ.”
The Marshall Project and partner news organizations in a series of stories published in 2020 documented how some police departments use dogs as weapons, biting thousands of Americans each year, including innocent bystanders.
The investigation singled out Oakland as one of few cities with strict criteria on when police are allowed to deploy canines. Oakland changed its police dog policy from “find and bite” to “find and bark” following a 1990s case in which a canine continued to bite a man hiding inside an auto body shop even as he was attempting to surrender.
Oakland policy allows for canine deployments for “violent forcible crimes, burglary and weapons related offenses,” but requires the canine handler to immediately call the dog off the bite once the handler believes the suspect has complied.
An armed robbery in the hills leads to a backyard search for suspects
On April 17, 2019, at about 10:25 p.m. someone called 911 and told dispatchers they had been robbed of their cellphones near Golf Links Road and Skyline Boulevard. Police noted that there had been a series of armed robberies in the area over the past month.
The first officer on scene said she saw several “Hispanic male subjects” standing near vehicles that were later determined to be stolen. The officer detained two of the males, a 16-year-old and a 19-year-old, but others fled on foot down a hill into the neighborhood below. A third man, 22, was arrested a few blocks away. Following the arrests, an officer found “what appeared to be a black semi-automatic handgun placed underneath a loose piece of tree bark,” just off the roadway and near where the men had been standing. It turned out to be a BB gun.
Believing the remaining suspects were armed, Oakland police established a perimeter and called in the California Highway Patrol’s airplane to help with the search. Officer Neff and his canine, Bas, along with rifle cover teams were also called to the area of the 5000 block of Scotia Avenue, where a man was spotted hiding on the side of a home. After several minutes and multiple announcements over a loudspeaker warning the man to surrender or the police dog would be sent in, Neff let Bas off leash.
Bas and the 18-year-old struggled for more than a minute before officers approached and arrested him. He suffered four lacerations to his scalp, requiring five staples, and abrasions to his shoulder, hand, thighs and neck, thought to be due to Bas pulling on his sweatshirt during the struggle. (The Oaklandside reviewed photographs to confirm the seriousness of the injuries but is not publishing them.) When he was brought to the ambulance, officers discovered the man only spoke and understood Spanish, so Lt. Brandon Wehrly, the incident commander, directed that any other warnings used to alert suspects that officers planned to send a dog after them also be in Spanish.
OPD’s search team then moved about a block and a half away to Stacy Street, where the CHP airplane, using a thermal camera, detected three people hiding in a yard. After several announcements in Spanish and English, Bas was sent into the backyard of a home, where the canine latched onto the leg of another 18-year-old man.
Neff later told investigators due to the dark yard he could not clearly see the 18-year-old’s hands to determine whether he was unarmed. As Bas continued to bite the teenager’s leg, Leal told Neff to keep the dog “on the bite,” because there were two other outstanding suspects in the yard. During the commotion, the 18-year-old repeatedly yelled, “get the dog off me, please?” in Spanish. A Spanish speaking officer there was translating both officer commands and the 18-year-old’s responses.
At one point, Neff asked Leal, “Do you want to move up to him, Sarge?”
Leal responded, “Matt, if you call your dog off, do you think this dude will stay there, or do you want to keep him on the bite?”
“I can probably call him off as long as I can see his right hand. I can’t see his right hand,” Neff replied. Leal decided to keep Bas “on the bite” until the two other suspects were spotted and surrendered.
The 18-year-old’s injuries required a skin graft and surgery. He spent three weeks at Highland Hospital before he was released home. Despite detaining five men and a teenage boy, “it was determined through the investigation that there was enough probable cause to arrest” only the 22-year-old man who was already in custody before the backyard searches on suspicion of robbery and possession of a stolen vehicle.
It is unclear whether the Alameda District Attorney’s Office ended up charging the 22-year-old. But neither of the young men bitten by Bas were charged with a crime related to that night, according to a search of court records.
The Oakland Police Department’s public information unit did not respond to a request for comment before publication time.
The Police Commission’s civilian investigators also examined the case
The Community Police Review Agency, part of Oakland’s civilian police commission, investigated 11 allegations of police officer misconduct due to the events that night. CPRA investigators found that while it was reasonable to deploy the canine in both cases, “the continued use of force was excessive, unreasonable and inconsistent with department policy.”
The plan on how to detain the suspects, investigators found, was problematic: Leal suggested “dragging” one of the 18-year-olds out.
“The only plan they discussed was a ‘bite and drag’ scenario, which was not consistent with Ofc. Neff’s training,” investigators wrote in a 167-page report.
The 18-year-old hiding on Stacy Street “was not actively resisting, as he wasn’t fighting with or even trying to get away from the dog,” the CPRA investigators wrote in their report. “On the contrary, [his] actions and responses indicated his intent to comply with the officers’ commands.”
CPRA investigators sustained findings against Neff and Leal for unnecessary force and against Lt. Wehrly for failure to supervise as incident commander. They exonerated Leal on an allegation that he failed to properly supervise the search. Leal “managed this complex incident and performed his supervisory duties well in many ways from start to finish,” according to the report.
In a statement, Leal’s attorney, Harry Stern, said: “As confirmed by the exhaustive investigations, Sgt. Leal’s leadership in this harrowing incident was exemplary. The fact that a serial armed robbery suspect, who admitted that he understood the commands to surrender, has been construed as the victim here is startling—particularly given the tsunami of violent crime afflicting the beleaguered citizens of Oakland.”
According to OPD investigators, some of the men in the group may have been linked to four other robberies. In police interviews, members of the group said they met up in the Oakland hills in two different cars, which were reported stolen, and some said they ran believing there was a warrant out for their arrest. All of them either denied involvement in the robbery that occurred earlier that night or refused to give a statement.
The 16-year-old boy admitted to bringing the BB gun with him. The records OPD released say investigators were unable to locate the robbery victims, and ultimately police only pursued charges against the 22-year-old.
In addition to the exhaustive investigation of the use of a K9 to apprehend the men, four other officers were investigated for drawing their guns and pointing them at the men during the search. Both OPD and CPRA exonerated officers Timothy Cavins, Ryan Kabahit, Josiah Ladd, and Kanwaljit Singh, finding their actions within policy and reasonable during a search for robbery suspects.
CPRA investigators sustained a finding that Officer Sylvestre Triana violated the department’s body camera policy by using his personal cell phone to record the incident on Stacy Street, where he was assigned as a cover officer. He admitted to doing so for “educational purposes” and later deleted the footage because “it was not clear and didn’t capture anything,” according to the CPRA report.
“He stated that he did not share or show the video to anyone, and he admitted that in retrospect, it was not a good idea to record with his personal cell phone during the incident,” the report said.
OPD’s internal affairs recommended Triana receive training, finding he violated policy, “as well as addressing his officer safety (distracted while providing cover).”
A more complete and critical investigation, according to OPD’s court-appointed monitor
Long before the documents in the case were made public, OPD monitor Robert Warshaw noted in a July 28, 2020 report that the executive force review board for the dog bite case was the first to convene since OPD’s force board was found out of compliance with court-ordered reforms, following the decision in the Pawlik case. Pawlik, 31, was shot and killed by OPD officers in March 2018.
The handling of the Pawlik case was cited as a factor in the firing of police Chief Anne Kirkpatrick in early 2020. Kirkpatrick, who defended her department’s decision not to hand down terminations to the officers who killed Pawlik, was terminated by a vote of the police commission and Mayor Libby Schaaf. Warshaw later issued a report finding that Kirkpatrick had “mishandled” the Pawlik investigation.
To Warshaw, the fact that OPD’s executive force review board overturned the department’s internal affairs conclusions about the dog bite case was promising.
“It is clear that the Board did not merely rubber-stamp the IAD investigation; in fact, the Board overturned IAD’s findings as it pertained to the most serious use of force and ruled it out of compliance,” Warshaw wrote. “The Board appropriately challenged some of the outside [subject matter expert] opinions, since he admitted during his testimony that he would not consult on a case in which he believes a dog bite is not justified, calling into question his objectivity.”
“The deliberations were thorough and probing,” Warshaw added.
However, in his latest monthly report released Monday, Warshaw wrote that the department is not back in compliance with the reform task related to force review board investigations, indicating that while he approved of the handling of the dog bite case, he believes there is still work to be done.