A federal judge signaled today that former Police Chief Anne Kirkpatrick’s lawsuit against the city of Oakland can proceed to a trial by jury later this year unless a settlement is reached before then.
Kirkpatrick was fired in early 2020 by the Police Commission, a civilian board created in 2016 to provide additional oversight to the Oakland Police Department, and Oakland Mayor Libby Schaaf. The mayor and commission did not cite a specific reason, and were not required to, but several commissioners later said they were disappointed with Kirkpatrick’s performance.
Soon after her dismissal, Kirkpatrick claimed that the commission retaliated against her for trying to blow the whistle on allegedly illegal activities by its members. Kirkpatrick filed her lawsuit in August 2020.
Since then, the city and Kirkpatrick’s attorneys have briefed their cases before U.S. Magistrate Judge Jacqueline Scott Corley.
In February, the city filed what’s known as a motion for summary judgment, essentially asking Judge Corley to decide based on the facts of the case—which the city and Kirkpatrick mostly agree on—and prevent it from going to a jury trial.
Following an hour-long hearing today, Corley indicated that she might dismiss some of Kirkpatrick’s specific claims, but others will remain, and that a jury should hear them.
“I’m pretty confident we will be going to trial on something,” Corley told the attorneys.
The city faces a potentially costly verdict if it loses the trial. Kirkpatrick is seeking an unspecified amount in damages for lost pay, benefits, and future earnings from the date she was fired, Feb. 20, 2020, through Feb. 26, 2022, when her contract with the city was set to end.
Kirkpatrick alleges retaliation
The former police chief accuses the police commission and Schaaf of getting rid of her because she made several complaints about the behavior of police commissioners. The city and former police chief agree on many facts in the case, but they disagree about whether or not the incidents amounted to whistleblowing, or whether the commissioners acted in retaliation.
The incidents Kirkpatrick complained about include the following:
- In March 2018, two OPD neighborhood service coordinators—civilian employees who help residents address specific problems in their neighborhoods—reported to Kirkpatrick that during a meeting with Police Commission members Ginale Harris and Jose Dorado, Harris expressed displeasure with their work and told them she “had a history of having people fired,” and that she believed NSCs “should be Oakland residents.” Dorado allegedly criticized the NSCs assigned to the neighborhood where the Ghost Ship fire happened in 2016. Kirkpatrick told the city administrator and city attorney about the exchange because the commissioners, in her opinion, were also trying to steer resources to their neighborhoods, a potential misuse of their authority.
- In September 2018, Commissioner Harris visited OPD to inquire about tow truck fees she was being charged. Kirkpatrick claims that Harris was “basically throwing a fit” and tried using her position as a commissioner to have the fees dismissed. Harris and the city deny that the commissioner was seeking any sort of preferential treatment.
- During a Police Commission meeting in March 2019, Commissioner Harris made a comment that assumed Public Defender Brendon Woods was white. Then, upon learning Woods is African American, she told him, “You have the skin color of a Black man, okay, but that don’t mean you live like a Black man.” Kirkpatrick reported this comment to the city administrator and city attorney, saying it was a violation of a city rule that prohibits employees from racially discriminating against anyone.
- In April 2019, the commission asked Kirkpatrick to tell them about the status of an internal affairs investigation that involved the chief. Kirkpatrick was accused of neglecting to take action on complaints brought to her by the Oakland Black Officers Association about discrimination within OPD. Kirkpatrick believed that state law prohibited her from discussing the case, so she refused the commission’s requests. She reported the commission’s requests to the mayor and city administrator and accused the commission of harassment.
- Also in 2019, the commission asked Kirkpatrick to assign then-Deputy Chief LeRonne Armstrong (who now holds the job of police chief) to become the liaison between OPD and the commission. Kirkpatrick believed that this was an illegal request because it violated the city’s rules against allowing commissioners to direct staff.
- In the summer of 2019, the Police Commission subpoenaed OPD for records related to a controversial police shooting. Kirkpatrick believed that these records were confidential and could not be given to the commission and initially refused to before finally relenting.
- In November 2019, Commissioner Harris got into an argument with officials at the San Francisco school her son attends. Kirkpatrick alleges that Harris flashed her Oakland Police Commission “badge” to the officers in an attempt to gain favor. Kirkpatrick later reported the incident to the city administrator.
- Finally, Kirkpatrick claims that the commission harassed her deputy, Virginia Gleason, when they scheduled her to attend a meeting when Gleason wanted to be on vacation.
During today’s hearing, Judge Corley indicated that she will likely set aside several of Kirkpatrick’s claims, but that others could reasonably be viewed as examples where members of the police commission misused their positions. Whether or not the police commission and mayor then fired the former chief for calling out these potential violations of rules would be up to a jury to decide.
Corley said that Harris’s alleged flashing of her Police Commission ID and statement to police at her son’s school that she was an Oakland police commissioner is one allegation that could head to trial. “I can’t think of any reason why that would be a relevant statement to make other then, ‘I want the police to treat me favorably because I’m an Oakland police commissioner,’” Corley said during today’s hearing.
But Corley indicated she might toss the claims involving the Police Commission’s efforts to obtain records about police shootings and other OPD internal affairs cases. Corley said the commission didn’t violate any law or local rule by asking Kirkpatrick for the records, and therefore Kirkpatrick’s complaints to the city administrator and city attorney couldn’t be characterized as whistleblowing.
Corley is likely to issue a decision in the near future.
The commission and mayor say they fired Kirkpatrick for failing on reforms, among other reasons
When the Police Commission and Mayor Schaaf fired Kirkpatrick, they did so “without cause,” meaning that they chose not to list their reasons in the public record. This led to some confusion at the time about why the chief was dismissed.
However, the commissioners and mayor recently stated their reasons in detailed responses to Kirkpatrick’s lawsuit.
“While the termination was ‘without cause,’ and therefore required no justification, the City had good reasons for its action,” Oakland’s attorneys wrote in their motion for summary judgment. “During her tenure, [Kirkpatrick had] shown herself to be—to put it diplomatically—a poor fit for the City, which needed a leader of the Oakland Police Department who could foster positive relationships with a range of demanding stakeholders. Plaintiff turned out not to be that leader.”
According to the commissioners and Schaaf, they fired Kirkpatrick because, under her tenure, OPD’s progress on completing court-mandated reforms had reversed. When Kirkpatrick took the job of chief, OPD still needed to complete three of the 52 tasks required of it under its nearly 20-year-old reform program. Over the next three years, the department fell out of compliance on five tasks it had previously succeeded at, increasing the number of uncompleted reforms to seven.
The commissioners and mayor also accused Kirkpatrick of fumbling her handling of the controversial police shooting of Joshua Pawlik, biasing the investigation, and coming to the wrong conclusion in the case by not firing the officers who were involved. City leaders also viewed Kirkpatrick as uninterested in engaging with the city’s diverse communities and inattentive to issues of racial discrimination within OPD.
“Rather than focus her attention on vital issues affecting public safety and policing, she fixated on trivial disputes with members of the Police Commission, a body created by the City’s voters to provide civilian oversight of OPD,” the city argued in a court filing.
Schaaf said in a declaration to the court that she “grew increasingly concerned” about Kirkpatrick’s performance when the former chief spoke approvingly of an “unprofessional and unnecessarily insulting” email that her deputy, Gleason, sent to local civil rights attorneys John Burris and Jim Chanin. Burris and Chanin sued OPD in 2000, had the department placed under federal court oversight (leading to the list of 52 tasks), and help oversee its required reforms. Schaaf felt Kirkpatrick “failed to recognize” the seriousness of the department’s backsliding on reforms.
Regina Jackson, who chaired the Police Commission in 2020, said in a statement to the court that she voted to fire Kirkpatrick after she became convinced that the chief “was not particularly interested in either community oversight or real reform” and was “reluctant” to attend commission meetings.
“[Kirkpatrick] seemed not to understand or care that the Commission had oversight authority over the Police Department. She treated the Commission as an afterthought rather than a partner, and at times appeared to condescend to us,” Jackson said in a statement filed with the court.
Jackson also cited OPD’s lack of progress on reforms. “I blame Chief Kirkpatrick for this regression—she is supposed to be the leader, and she was leading the Police Department in the wrong direction. I never once saw her take responsibility for the mistakes in leadership that led to this regression,” said Jackson.
Jackson and several other commissioners also said they were not aware of Kirkpatrick’s complaints about Harris and Dorado until after they had already fired her. “Even if I had known about the Chief’s complaints, those would have been irrelevant to my decision,” she said.
If the city and Kirkpatrick don’t settle, it will be up to a jury to decide whether or not Kirkpatrick was fired for whistleblowing, or because of her job performance. Jury selection in the case is scheduled to begin in May.