An Instagram account that spread anti police reform, misogynist, and racist content was run by an ex-Oakland police officer fired for a police shooting, and about 30 current and former OPD officers appeared to follow the page, according to a report by outside investigators made public Monday evening.
The report by San Francisco-based law firm Clarence Dyer & Cohen LLP revealed that the Oakland Police Department, at all levels, “took much too long to recognize the bigoted and corrosive nature” of the Instagram posts.
The city hired the law firm to carry out the independent investigation in response to an order by U.S. District Judge William Orrick, who oversees the Oakland Police Department’s progress under an 18-year-old reform program. Earlier this month, Judge Orrick indicated that the outcome of the social media investigation will influence whether OPD is ready to emerge from federal court oversight. OPD has been under the watchful eye of a federal judge and independent monitoring team since 2003 because of the Riders scandal, in which a squad of officers brutalized and planted drugs on West Oakland residents.
Several OPD officers knew of the Instagram account and failed to report it for weeks. Others interviewed during the six-month investigation insisted there was nothing troubling or offensive about the images and memes, and some officers told investigators that “anyone who took offense to them just couldn’t take a joke,” according to the report.
“At best, this failure signals an absence of processes within the Department to ensure a safe and discrimination-free workpace committed to Court-ordered reforms,” the report concluded. “At worst, it bespeaks a culture so hostile to women and minorities, and so wedded to a discredited model of policing, that it cannot identify discriminatory and anti-reform messaging when it sees it.”
Last month, civil rights attorneys Jim Chanin and John Burris, who are part of the reform program, wrote in court papers that they believed OPD has made significant progress and argued that it was time to consider winding down federal court oversight.
On Tuesday morning, after reading the outside investigators’ report, Chanin said he was “re-evaluating” his position.
“I am going to talk to members of the department and something will be forthcoming,” Chanin said in an interview. “I was extremely disturbed by the report, especially the part where apparently more officers knew about this. What’s worse is the reaction of some officers, which is along the lines of ‘can’t you take a joke.’ I can take a joke, but I don’t think insulting the people of Oakland, police reforms, African American commanders and women is particularly funny.”
An ex-officer fired for a fatal police shooting created the Instagram page
The independent investigation linked the Instagram account “crimereductionteam” to a controversial police killing. Investigators wrote that the account’s creator was fired for a fatal police shooting in March 2018, and although they did not identify the terminated officer or victim by name, there was only one shooting involving Oakland officers that month.
Officers Francisco Negrete, Brandon Hraiz, Craig Tanaka, and William Berger shot and killed Joshua Pawlik, a homeless man who was found asleep between two homes with a gun in his hand. A fifth officer, Josef Phillips, was also fired for shooting Pawlik with a bean bag round from a shotgun. OPD initially ruled the shooting justified, as did the Civilian Police Review Agency, the investigative arm of the Police Commission. But Robert Warshaw, the court-appointed monitor who oversees OPD’s reforms, intervened and ruled the shooting was out of policy. A special discipline committee of the Police Commission had the final word, siding with Warshaw.
The monitor held former police Chief Anne Kirkpatrick personally responsible for the mishandling of the fatal shooting investigation, and it played a role in her eventual termination by the Police Commission and Mayor Libby Schaaf.
The five officers have refused to accept their terminations. In 2019, they filed a lawsuit asking a superior court judge to overturn the city’s decision. The case was moved to federal court, and in June 2020, Judge Orrick ruled against the officers. They appealed their case to the Ninth Circuit Court of Appeals and the city and officers are currently awaiting a decision.
At the same time, the five officers are seeking their jobs back through arbitration, an option allowed under the police union’s contract with the city. If a neutral arbitrator decides in their favor, they could be rehired, regardless of the outcome of their lawsuit.
While the Clarence Dyer & Cohen LLP report didn’t identify which of the five officers created the Instagram page, it noted that rumors within OPD characterized the person as “a disgruntled former officer who had been terminated following his role in an officer-involved shooting.” The law firm and OPD were able to subpoena Facebook and obtain the email address and other information confirming the identity of the former officer, but when investigators attempted to subpoena him, he reportedly “evaded” them and therefore was not interviewed.
Sexist, racist, insubordinate, and anti-reform memes
The independent report described many of the posts created and shared by the ex-officer on the Instagram page as demeaning to women and minorities, and contrary to OPD’s goal of constitutional policing.
One of the memes degraded women officers, claiming they use sex to advance their careers, while another “communicated the message that female recruits were objects of sexual interest to male officers who wanted the recruits to be ‘theirs.’”
Another meme communicated an “insubordinate suggestion that ‘good’ cops are under assault from command staff, IAD, and the Police Commission,” by using a meme that “clearly draws upon repugnant tropes of Black men as sexual predators of white women.”
Other memes made fun of the notion of accountability for officers who wrongfully use force, or expressed contempt for reform.
Jonathan Abel, a law professor at UC Hastings who has studied the laws regulating police officers’ use of social media, said that officers have First Amendment speech protections, but because they work for the government there are some limits on what they can say. Racist and violent comments by public employees will generally not be protected by the First Amendment.
“When you’re a public employee, you may be disciplined for saying things that interfere with the operation of the government agency you work for,” said Abel.
Abel said there are a lot of cases establishing that public employees don’t have First Amendment protections for biased and violent comments. He pointed to the suspensions and firings of numerous Philadelphia police in 2019 after their social media comments were collected and re-published by the Plain View Project, an initiative to expose racist views among law enforcement, as just one of many examples of officers being disciplined for social media use.
“Now everyone is a publisher. The conversations that used to happen at a bar or dinner table are now happening on social media. They’re out there for everyone to see,” Abel said. “People use it to vent their feelings.”
Most disciplinary cases Abel has studied weren’t the result of proactive investigations by departments. Investigations are often started only after complaints are made by the public or issues are raised in a media report, he said.
OPD was slow to begin an investigation of the Instagram page
The city of Oakland hired Clarence Dyer & Cohen LLP in January after The Oaklandside exposed the Instagram account. OPD investigators confiscated 140 work phones from officers and independent investigators interviewed 43 subjects and witnesses, as well as reviewed emails and cell phone data.
Last Friday, the city of Oakland announced that it is disciplining nine officers for their misuse of social media. Not all of the discipline, which ranged from three-day unpaid suspension to a 25-day unpaid suspension, was related to the Instagram account. At least two of the nine officers disciplined have left the department and are working for other unnamed law enforcement agencies, according to the city. Oakland officials said Friday that they’ve contacted those agencies to make them aware of the investigation’s findings.
Judge Orrick, after consulting with independent monitor Warshaw, decided to publicly release one of two reports that summarizes the investigation. In addition to not naming the officer who created the Instagram page or those who were disciplined, the public report does’t name other OPD staff.
The report “allows for greater public transparency and accountability for OPD to ensure that the cultural change necessary for compliance with the NSA and AMOU governing this matter is achieved,” Orrick wrote in an order filed Monday.
The account’s existence was brought to the attention of OPD’s Intel Unit in September 2020 when a lieutenant who received an invitation to his personal Instagram account to follow “@crimereductionteam” notified Sgt. Kathryn Jones, who worked in the unit. According to the Clarence Dyer & Cohen LLP report, the lieutenant told the sergeant the account could be an “Antifa or BLM-type trap” to gain access to officers’ personal information, according to a text message reviewed by investigators.
On Sept. 23, 2020, Sgt. Jones sent an email to every sworn member of the department warning them about the account and to watch out for fake accounts.
The Oaklandside was able to obtain a copy of Jones’ email, in which she wrote the Instagram page’s owner might be using it to “get information about police officers,” and that “something as simple as following an account that is questionable or spouts negative rhetoric could reflect poorly on you. Even worse, we do not want any officers to be targeted either via social media or at their homes.” Jones added that she was unaware of who was behind the account.
“Subsequent investigation revealed that several senior OPD members, including the Interim Chief, Deputy Chief and head of Internal Affairs did not even open the email at or around the time it was sent,” the outside investigation found.
Members of the intel unit began monitoring posts, but focused more on whether the Instagram page posed a risk to officer safety and less on the content. One intel officer compiled a list of OPD members who appeared to be following the page, a number totalling approximately 30. “The officer did not share this list with the Intel sergeant or anyone else in the Department, and he told investigators that, despite accessing the page regularly, he did not conduct a systematic review of the page’s content or notice anything offensive,” investigators wrote.
Weeks later, on Dec. 21, 2020, an Oaklandside reporter emailed the department’s media relations unit and requested a copy of the Sept. 23 department wide email. A member of OPD’s media unit contacted Sgt. Jones in intel, who told the public information officer to tell the reporter the matter was under investigation.
“The media officer did just as the Intel sergeant suggested, responding to the reporter’s inquiry with a one-line email stating that the matter was still under investigation. In fact, there was no active investigation concerning the page at that time,” the outside investigation found.
After the inquiry, members of the Intel unit questioned one of the Instagram account’s followers and asked the officer if they knew who ran it, as well as cautioned him against following the page because a reporter might publish a story about it. Around that time, then Interim Chief Susan Manheimer requested a copy of intel unit Sergeant’s email, having heard about the media inquiry.
Manheimer later forwarded the email to Assistant Chief Darren Allison and Wilson Lau, captain of internal affairs, and noted that Sgt. Jones reported that there did not appear to be any department policy violations associated with the page, and “that there did not appear to be anything prohibiting OPD members from reviewing or commenting on the page.”
On Jan. 8, Chanin, the civil rights attorney, contacted Manheimer and told her “he was in possession of troubling images from” the Instagram page. Manheimer, along with the Internal Affairs Division captain, called Sgt. Jones in the intel unit. “The intel sergeant reiterated that the images on the page were just ‘dumb’ police memes and did not appear to her to constitute” misconduct violations.”
Manheiner and the captain called Chanin back, and after he shared images with them, the OPD officials, “immediately recognized the images were objectionable,” and assigned a lieutenant to open a formal investigation.
The outside investigators, however, noted that all sworn members had been on notice about the page and “not a single OPD member identified or escalated the patently objectionable nature of much of the page’s content.”
“It was not simply a failure to report,” investigators wrote. “The problem was a failure to detect — that is, a failure to see that much of the content on the @crimereductionteam Instagram page was inappropriate and offensive. This failure occurred at every level of OPD.”
The independent investigators concluded the 23-page report by recommending OPD build on the city’s anti-discrimination policy by creating a department-specific policy that extends beyond the physical workplace, create a social media policy, and clearly define rules for using personal devices for work.