Alameda County Public Defender Brendon Woods and three senior members of his staff made an appearance before the Oakland Police Commission Thursday evening to allege that the Oakland Police Department is violating a 2017 state law that strengthened children’s rights to legal counsel after they’re arrested.

“OPD is routinely doing this,” said Alphonso Mance, the assistant public defender for the county who leads the office’s juvenile defense operations, during the commission’s public comment period. “It appears to be a matter of policy, and they are not following the spirit of the law.”

“We have been told that our actions are within the law,” OPD Chief LeRonne Armstrong said in a brief response during last night’s meeting.

The law in question is Senate Bill 395, which added a requirement that police officers must connect any person age 17 or younger they arrest with an attorney, either in-person, over a phone or video call. The attorney makes sure the child understands their legal rights, including that they have the right to remain silent, and the right to legal counsel, including a public defender if they can’t afford their own lawyer. Under the law, all of this has to happen before a police officer asks a child if they will waive their Miranda rights and answer questions.

Prior to SB 395, children were treated much like adults after an arrest. Police had to read them their Miranda rights before attempting to interrogate them, but there was no obligation to let them hear about their rights from a defense attorney. 

The authors of Senate Bill 395, former State Senators Ricardo Lara and Holly Mitchell, wrote in the legislation that children’s brains are still developing and that “people under 18 years of age have a lesser ability as compared to adults to comprehend the meaning of their rights and the consequences of waiver.” The phone call with an attorney is meant “to assist in their understanding of their rights and the consequences of waiving those rights.”

The public defenders said OPD is effectively circumventing the spirit of the law by allowing too much time to pass between the phone call a youth is given with a lawyer and when an OPD officer actually reads the child their Miranda rights and asks them if they will waive these rights and answer questions. Youseef Elias, chief assistant public defender, said the officer who makes the phone call to connect a youth with an attorney often isn’t the same officer who later attempts to interrogate the child, which might also cause confusion for the young person.

Mance said during last night’s commission meeting that OPD is the only police agency in the county that does this. Others have an officer ask if a child wishes to waive their Miranda rights and answer questions immediately after they’ve spoken with an attorney, he said.

According to the public defenders, by waiting several hours after the attorney’s phone call to attempt to interrogate a child, the police are able to wear down the young person, make them feel alone and that there isn’t anyone on their side who is present, and it’s more likely a child will waive their rights and make a statement.

OPD responded today in a statement to The Oaklandside saying that “the time in which a person is detained or arrested and receives their admonishment is done on a case-by-case situation,” and that “in the most serious of cases where juveniles are transported to the police department to be interviewed by experienced investigators, there can be breaks in time due to transportation and investigative necessities to the case,” but that its officers always allow juveniles to make a call to their attorney which OPD’s does not monitor.”

Even so, the department’s statement said it is “reviewing protocols to see if OPD is within best practices.”

Mance said last night that in one recent OPD case involving juveniles, the childrens’ statements to the police were thrown out by a judge because officers chose to wait two and a half hours after they’d spoken with an attorney to interrogate them.

The Oaklandside was unable to confirm the outcome in this case because juvenile cases are confidential. OPD said they could not discuss anything related to confidential juvenile cases.

The Alameda County Public Defender’s office serves as the on-call legal counsel for all juveniles arrested in the county, said Assistant Public Defender Kathleen Ryals during the commission meeting. Staff rotate so that there is always someone available around the clock to speak to youth arrestees.

Ryals said that OPD’s practices of not giving children a Miranda warning immediately after a public defender advises them of their rights is unusual. Police officers from the 14 other agencies in the county allow her and other public defenders to stay on the phone while they read a child their Miranda rights and ask if they want to make a statement. Mance said that he and his colleagues don’t provide legal advice to the children by telling them whether or not to speak with the police. Instead, their goal is only to ensure the youth fully understand their right to remain silent and other rights.

Ryals criticized OPD, saying “they are deliberately trying to subvert the law.”

Oakland Police Chief LeRonne Armstrong briefly responded last night, telling the Police Commission that his officers aren’t violating SB 395. But after hearing concerns from the public defender some time ago, Armstrong said he went to the city attorney seeking advice, and OPD also informed the district attorney and county judges of the public defender’s views.

“In our meetings with the district attorney as well as our monthly meetings with the judges, we have not been advised that our officers are violating the law in any way.”

Armstrong also said the department’s Negotiated Settlement Agreement, the 19-year-old court order that resulted from the “Riders” police brutality case requiring various reforms, has made OPD adopt procedures that create lengthy delays between when a young person is arrested and when they can “get a juvenile in the building” to interview them.

Armstrong didn’t respond to the public defenders’ accusations any further, citing the fact that the matter wasn’t agendized in advance for a more substantive discussion.

Woods said that his office has been trying to get OPD to change their policy with respect to juvenile arrestees since 2018, but that Oakland’s previous chief, Anne Kirkpatrick, told him there wasn’t a legal requirement to do it their way.

Most recently, Woods said he sent Armstrong a letter in May of this year, but that Armstrong hasn’t responded.

“It should not be this difficult, and there should not be this resistance to make sure that our children understand their rights,” Woods said.

Correction: the age requirement under SB 395 is 17 and below, not 15 years and younger.