Berkeley police officers used 50 tear gas grenades and “blast rounds” to clear Telegraph Avenue during a Black Lives Matter demonstration in December, but police officials declined to say Wednesday night whether that had been excessive.
The June 10 meeting before the city’s Police Review Commission was the citizen panel’s first chance to ask officers specific questions about the anti-police protests in Berkeley in December, following the release on Tuesday of a 161-page report completed by the department to analyze its response to the demonstrations.
After being charged with the task earlier this year by the Berkeley City Council, the PRC is working to complete its own investigation: questioning authorities, reviewing the police report, examining original documents and interviewing witnesses. Council asked the PRC to come back with its findings within six months.
Read past Berkeleyside coverage of the Berkeley protests.
Berkeley Police Chief Michael Meehan told commissioners Wednesday night that, without “a full discussion about the facts and circumstances at the moments those decisions were made” — regarding tear gas use on Telegraph Avenue on Dec. 6-7, 2014 — he could not say whether an appropriate amount had been used or not.
“It’s a discussion I think we should have,” Meehan said.
The time for that discussion, however, was apparently not Wednesday night. Meehan stressed that the department’s focus while doing its report had been to find strategies to avoid getting into situations where force becomes necessary. He noted that, once officers witness crimes being committed or are “already under attack, their options are limited.”
He said, too, that the police report is best understood as a “public review” of what took place in December, rather than an “internal investigation,” which — at least in police parlance — refers to a confidential investigation into officer conduct.
Members of the public who testified Wednesday said police had been out of line when they used force and tear gas Dec. 6, and that too many innocent bystanders — members of the crowd who had not been involved in vandalism or aggression toward officers — had been injured or impacted as a result.
One man criticized the police report on the protests for its lack of citations and “blurry” chronology. Another said the report should not have taken so long to complete, and that the timing of its release — “just in time for all the students to go home” — struck him as suspicious. Speakers noted that students on Telegraph, many of whom had not even participated in the demonstrations earlier that evening, were among the people who suffered the most injuries and trauma as police worked to clear the crowd.
After about an hour of public testimony regarding the protests, police provided a nearly two-hour overview of the report they have been working on since earlier this year. (See the Berkeleyside overview, and the presentation police made Wednesday night.)
Meehan himself was careful not to respond directly to the public throughout Wednesday’s meeting, and repeatedly directed the other officers on his seven-person panel to do the same. Meehan reminded the commission he had committed from the get-go that his department’s protest report — to include a narrative of events as well as a close look at police decision making — would be made public. He described that level of transparency as “unprecedented for the Berkeley Police Department.”
“We wanted you to see the points that we were trying to make,” explained Lt. Dave Frankel in response to a commission question about the video clips that were presented as part of Wednesday night’s overview. “But we also wanted you to have full access to everything we saw, whether it looked bad or not.”
Much of the discussion Wednesday night revolved around the confrontations between police and protesters Dec. 6, 2014. Police tried to explain to the commission and approximately 30 members of the public at the meeting, including Berkeley City Councilman Max Anderson, why they believed it had been necessary to use smoke canisters to disperse a crowd outside the Public Safety Building downtown around 6:30 p.m. and, later, on Telegraph, to deploy gas and shoot rubber projectiles to push the crowd into Oakland.
Officers said, in fact, that it had been a mistake to set up a skirmish line at the Public Safety Building early in the evening, which exacerbated tension with a crowd that had to that point been peaceful. Police attributed the mistake to a miscommunication. An officer had called for increased security on one side of the building, as the large crowd approached, and police instead set up a skirmish line.
Video played Wednesday night showed members of the crowd passing by the line getting shoved by some officers, who had been told during briefing to make sure the crowd stayed a safe distance — an arm’s length plus a baton — away from them. One of the men who was shoved, explained Frankel to the commission, fell over. That caused the crowd to erupt and begin hurling objects, including rocks, a metal barbecue leg, a traffic cone, a brick and other items, at officers. Five officers were injured in the fracas, said Frankel.
(The videos that appear below were part of the police department’s report on the protests. According to their captions: “Videos were sourced from a combination of internal and internet. Video captions were added by BPD unless otherwise noted.”)
Another tactical error followed. A commander in the field decided to roll out smoke canisters to create a buffer zone between officers and the crowd. But no one made a public announcement about that decision, and the officer did not announce it over the radio. The result was confusion, with officers donning gas masks and members of the crowd unsure whether it was tear gas or smoke that had been deployed. (Initial media reports and reports on Twitter, too, evidenced the confusion.)
One member of the crowd hurled a smoke canister back at police, and officers who were unaware that the canister originated with police took that as another indicator of aggression, police said.
Sgt. Dan Montgomery, one member of the four-man team charged with completing the department’s report, told the commission that one theme running through that first night of demonstrations had been that police too often tried to control the crowd rather than facilitate its movements. Officers said beginning the night with a posture of control, as opposed to transitioning to it later “as needed,” had been the wrong move.
PRC Commissioner Michael Sherman told police he believed it had been that decision, to control rather than facilitate, that set the tone for the violent confrontations that followed.
“Everything else was almost preordained, what came after that,” he said. “It only took a spark.”
Members of the public in attendance Wednesday night seemed to agree that the spark to ignite the crowd happened when the man shoved by an officer fell over, perhaps tripped by his dog, or his dog’s leash. Many people saw him fall, and swarmed back to confront police in response. Police noted Wednesday night that the man was again standing, as seen in video, a short time later, but that did not assuage the anger those in attendance expressed at the PRC meeting regarding the police use of force Dec. 6.
Officers also said Wednesday night that they should be focused on seizing opportunities to deescalate tense situations, rather than taking steps that instead exacerbate them.
Police chief approved the use of tear gas on Telegraph
Relations between police and the demonstrators erupted again later in the night on Telegraph Avenue.
At one point officers found themselves surrounded by a large crowd estimated at 1,000 to 1,500 people at Telegraph and Bancroft Way. Over a period of 54 minutes, officers issued 23 dispersal orders to try to get people to clear the area.
Those orders, however, did not work and instead likely brought more people in the neighborhood to Telegraph, drawn by the noise and curiosity to see what was taking place.
Police said they were relying in part on the live broadcasts of media helicopters, but that those broadcasts were delayed by several minutes, which made it difficult to respond accurately to the movements of the crowd. Police also watched the live streams of protesters broadcasting footage on the internet, but said those were of limited value because the filmmakers’ movements were unpredictable.
Officers noted that there were also law enforcement helicopters overhead in Berkeley, but that Berkeley police did not communicate with them because of a city law that prohibits helicopter surveillance during demonstrations.
Police said they hope city officials will reconsider that position in the future, noting that commanders likely would have made a different decision on Telegraph if they had realized the large size of the crowd. They said having access to helicopter footage would allow them to see the entire scope of the scene, which was missing Dec. 6.
Officers said operations were severely impacted by the lack of real-time information available to the top commanders, who were working out of the downtown Operations Center, as well as the fact that the “crowd moved faster than BPD could observe & coordinate resources.” To address that in the future, they said commanders should be out in the field, and that officers should “parallel the crowd” better to stay in touch with developments as they happen.
Police said it was Chief Meehan himself who approved the decision to use tear gas on the crowd in response to rocks and bottles being hurled at officers in the area. Members of the audience at Wednesday night’s meeting shouted out that they did not believe projectiles were actually being thrown. (Police said Wednesday night that Meehan gave the order to use the tear gas; Meehan clarified Thursday that he approved the request to use the gas after the request was relayed to him through the chain of command, after a field commander believed the tactic was necessary.)
Police told the commission they had no videos to show what was taking place on Telegraph because their cameras had run out of batteries and had been of limited use, anyway, because of their poor quality. Police said they now have five higher-quality cameras, and that their recommendations include requests for better radio and public address equipment, as well as better safety gear for officers.
Officers kept trying to control the crowd’s movements, but those efforts were stymied by communication failures. At one point, Berkeley officers north of the crowd were telling the group to leave the area, but the southern boundary of the crowd was blocked by officers from another agency who were giving conflicting orders. Members from the demonstration have reported being trapped, with no way to escape the danger zone.
In addition to the Berkeley officers on scene, there were 250 officers from other Bay Area law enforcement agencies who responded to the city to help local police Dec. 6. Many of those agencies use a shared regional radio system, but police said Wednesday that there was too much traffic being broadcast, and that the system had not worked well in part because it was the first time it had been used in Berkeley to oversee such a large operation with so many moving parts. Berkeley sent out “pathfinders” — individual officers who help facilitate communication with officers in the field directing teams from other agencies — but coordination continued to be a challenge.
(Berkeleyside took a close look at the Dec. 6 dispatch logs to try to determine the chronology of events that night. See the report and original documents here.)
Department officials also said they had not closely tracked their inventory of tear gas and less-than-lethal munitions, such as rubber projectiles. They said they had to estimate what had been used by looking at an inventory list, but had no record of exactly what, how or when officers used the weapons.
“We did not do a very good job of accounting for what we were giving out to the officers,” police Capt. Cynthia Harris told the commission. “We don’t have that exact count.”
That level of detail might have been found had police completed the “after action report” required after crowd-control events, as outlined under the department’s General Orders. But that report was not created after the December protests because Meehan launched the “public review” instead and wanted to avoid redundant work. During the protests, officers often worked 16-18 hour days back-to-back, which left limited time for paperwork, police said.
Meehan said one of the department’s recommendations for the future includes a review of its use of force policy regarding the use of tear gas and batons in crowd control situations. Meehan clarified Wednesday night that the review would take place “in concert with” the Police Review Commission.
Wednesday night, PRC commissioners took turns asking questions of police about the report.
Meehan said he had spoken with the author of that directive, and been told the line had been specific to vandals, agitators and violent offenders. He said too that, for police, that phrase simply means “keep them moving.”
“The idea was to spread them out so individuals who were committing crimes could be arrested,” Meehan said.
Lippman called that explanation “an interesting interpretation,” and members of the PRC audience shouted at Meehan that they did not believe what he was saying.
Commissioner Sherman also asked police to discuss the use of rubber projectiles on members of the crowd Dec. 6. Lt. Frankel said police had only fired “at specific individuals doing criminal acts,” and that he was not aware of any instance where the intended target had not been struck. One audience member said repeatedly throughout the meeting that police had shot him with a rubber bullet when he was trying to help pick up another member of the demonstration, and that he had done nothing to warrant the attack.
Chief Meehan noted that, even when an officer is focused on an individual, the projectile does not always find its mark due to the unpredictable movements of a crowd. A similar explanation was provided regarding baton strikes. Police said they are trained to avoid areas such as the head and neck, but that blows don’t always land in the right place because subjects move.
Commissioner Alison Bernstein said in her remarks that she had been “unimpressed with the factual descriptions” in the police report, but impressed with its recommendations for how to improve in the future. She commended the department for its self-reflection, but also noted that the report should have included a reference to the Black Lives Matter movement, adding that the failure to include that reference undermined “the historical validity of the report.”
Commission Chair George Perezvelez said another aspect of the report that was lacking was its failure to take a much closer look, with video evidence, at police using force, such as projectiles and batons, on the crowd. He said the report should have gone into more detail about that aspect, which had been expressed as a repeated concern by demonstrators as well as city officials.
Despite adding an extra hour to the meeting, its conclusion at 10:35 p.m. came before the commission could complete its discussion regarding the police response to the protests. Perezvelez said he planned to continue pushing forward with the topic during PRC meetings June 17 and June 24. It was not immediately clear Wednesday night whether police will take part in future meetings.
PRC gets first chance for answers from police after December protests (06.10.15)
Berkeley Police release long-awaited protest report (06.09.15)
Berkeley Police work on neighborhood staging guidelines (03.13.15)
Berkeley council refers community policing package to city manager (02.25.15)
Berkeley City Council limits police tear gas use, for now (02.11.15)
Police release redacted reports on Berkeley protests (02.10.15)
Exclusive: 23-minute delay for paramedics during Berkeley protests, patient later died (02.05.15)
Citizen panel on police to launch Berkeley protests probe (01.20.15)
Berkeley town hall examines race, police relations (01.18.15)
Residents air concerns about police staging to Police Review Commission (01.15.15)
Berkeley Police Q&A: Tear gas use, protest costs, more (01.08.15)
Op-ed: Don’t call what Berkeley Police used ‘tear gas’ (12.18.14)
Neighbors complain about police commandeering their street to get ready for protests (12.15.14)
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