Berkeley police used smoke bombs and tear gas during a Black Lives Matter protest Dec. 6, 2014. Photo: Pete Rosos

When Black Lives Matter protests swept the country in late 2014, Berkeley saw its largest protests in decades and the most intense clashes with police in the region.

The night of Dec. 6, 2014, was particularly intense when hundreds of protesters gathered on Telegraph Avenue. While police issued several dispersal orders, the crowd stood its ground. Eventually, police used batons and tear gas. Officers said they were under attack by protesters throwing rocks and bottles, but some peaceful protesters and journalists said they were hit with batons and injured.

Eleven protesters and journalists sued Berkeley. The Berkeley City Council approved a settlement in February 2017. In addition to a monetary award of $125,000 for seven plaintiffs, the Berkeley Police Department agreed to make reforms to its use of force policy, including requiring individual officers to file reports describing the use of force during protests.

But 14 months later, attorneys who litigated the Black Lives Matter case have raised concerns that officers are still not recording all force used during protests.

And while the department updated its use of force policy, Berkeley’s requirements to report force lag behind neighboring cities. Little information has been disclosed publicly about what kind of force Berkeley police officers have used and when.

The department denied a California Public Records Act (CPRA) request from Berkeleyside for its use of force reports, which department supervisors are required to complete after an officer discloses using force. A second request for any summaries of use of force reports generated from 2014-17 was also denied. The only documents the department provided was the use of force policy itself and a single data point regarding the use of force: that Berkeley police officers have used force 105 times from 2015 through 2017.

The department denied the request on the grounds that use of force reports are considered officer personnel records, which are exempt from disclosure under the public records act. California has particularly strict laws prohibiting the release of police personnel records, including whether an officer was disciplined or fired for misconduct. State Sen. Nancy Skinner, D-Berkeley, is seeking to change the state law and introduced SB 1421 on April 2. It would make use of force records eligible for disclosure, along with records related to on-the-job sexual assault or dishonesty.

The Berkeley city attorney’s office concurred in a May 2016 memo that the department did not have to release its use of force reports under the CPRA. The city’s Police Review Commission, an independent oversight panel that makes policy recommendations to the City Council, was interested in obtaining and reviewing the reports. Then-City Attorney Zach Cowan concluded that, while the reports themselves were exempt, the department could release summaries of use of force that did not disclose officer names.

Despite that decision, the department has released no such summaries to the Police Review Commission, according to PRC Secretary Katherine Lee.

The department emphasized that, while there were 105 reported use of force incidents from 2015-17, officers responded to 223,878 incidents over that period, so only 0.047% of calls for service resulted in a documented use of force. A website established by the Berkeley Police Association to draw attention to BPD’s current staffing shortage, Where’s My Berkeley Cop, used a similar figure as an example of the department’s professionalism, reporting that Berkeley police officers used force 32 times in 2016 while responding to 78,000 incidents.

However, Berkeley’s use of force reporting requirements are more narrow than nearby departments like San Francisco and Oakland. For example, in those cities when officers point a firearm at a person, it is a reportable use of force. That is not the case in Berkeley.

Berkeley’s use of force policy has been revised twice since last year’s settlement. Its current iteration – issued Sept. 13 – still only requires officers to make written reports when officers discharge a firearm, when force results in death or injury, or when officers use a non-lethal weapon.

It does have some stricter reporting requirements than before the settlement. In particular, individual officers are now required to document force used during protest situations. They have to describe the reason for the force, as well as its location and type, and provide information about the person on whom force was used. Previously, the policy only required the department to document force used during protests in a general after-action report, not in reports by individual officers.

The department’s use of force policy is still undergoing revisions, according to city documents and, eventually, the city has plans to release use of force statistics on its website. In a Dec. 21 memo, City Manager Dee Williams-Ridley wrote that a use of force policy development working group is drafting language to emphasize de-escalation tactics and expanding the threshold of reported force. The memo also indicates that the department will someday issue an annual use of force report.

Berkeley Police Chief Andrew Greenwood told Berkeleyside on Tuesday that updating the department’s use of force policy is on his “to-do” list. However, the department is facing serious staffing issues that have taken priority, he said. The department is also trying to activate its body-camera program, but has run into some glitches that have delayed its implementation, said Greenwood. That is also higher up on the list.

“It’s delayed or set aside for the time being,” said Greenwood. “It’s still absolutely my intent to move forward with a revised use of force policy and find ways to transmit to the community the information about the uses of force.”

Greenwood thought the police department would eventually be able to break down the uses of force by general type. He did not commit to releasing summaries of use of force. It would not be prudent to be too specific, such as saying on this date, at this event, this kind of force was used, he said.

“I would like to be able to say, ‘officers pointed their guns at people X number of times in the past year,’” said Greenwood. That would not include details about where and when those incidents happened.

Jim Chanin, one of the civil rights attorneys who sued Berkeley over the Black Lives Matter protest, said that when he brought that suit he found that the department’s reporting requirements for use of force were years behind all other departments in the region.

“There was a period when the Berkeley police really were a modern, innovative, progressive police department, but that’s yesterday, it’s not today,” Chanin said in a recent interview.

Chanin also helped bring a civil rights lawsuit against the Oakland Police Department in 2000, which led to the department’s long reform process. In some ways, he said the Berkeley Police Department is far behind Oakland in terms of progressive reforms.

Unlike Oakland, Chanin says he has been unable to audit Berkeley’s progress in complying with the settlement. In Oakland, U.S. District Judge Thelton Henderson issued a consent decree requiring the department to disclose its progress with court-ordered reforms. Chanin said he remains concerned that Berkeley officers still aren’t reporting all force used.

Activists swarmed the City Council dais after a June 20 vote to continue Urban Shield. Two were arrested. Photo: Natalie Orenstein

Police used batons during a protest over Urban Shield

One event that involved force and which remains a source of contention happened on June 20, when the City Council held a special meeting to consider the police department’s continued participation in the annual Urban Shield event, a national law enforcement training event organized by the Alameda County Sheriff’s Office. Many activists and a number of council members have called for the police to stop attending the event, which features a controversial weapons trade show. The activists believe Urban Shield contributes to the militarization of police.

After more than five hours of discussion, and just as the City Council was voting on a measure, protesters stormed the stage and unfurled a banner that blocked many of the City Council members from the audience. Police asked the protesters to step down, according to a police report. When the protesters ignored the order, police removed two protesters from the stage and handcuffed and arrested them, according to police.

Those arrested, however, told another story. They said police did not issue any orders to disperse — with which they said they would have complied — but immediately used holds that caused excruciating pain, according to a claim filed with the city.

The protesters then went outside and police used batons to control the crowd and maintain space around a police car.

The Berkeley Police Department declined to release use of force reports for this incident, and it is unclear whether they were completed according to policy. Department spokesman Sgt. Andrew Frankel wrote in an email, “The incident was well documented. Officers documented their uses of force in the Police Report.” But he did not respond when asked if the department completed use of force reports or an after-action report.

On Dec. 14, Chanin and National Lawyers Guild attorney Rachel Lederman, who also represented the Black Lives Matter protesters, filed a claim with the city on behalf of six protesters and a journalist who said Berkeley police used excessive force during the June 20 protest. The allegations in the claim describe police actions and injuries to protesters that were not documented in the police reports from that night, which were obtained by Berkeleyside.

In a report by Sgt. Sean Ross, he acknowledged using a “low profile control hold” against one protester, Samir Shrestha, but not on the other, Dylan Cooke. Ross wrote that he merely handcuffed Cooke and escorted him off the stage. In the claim, Cooke’s attorneys wrote that Ross twisted Cooke’s wrist and shoulder and that Cooke told Ross he was hurting him, but Ross “continued to wrench Dylan’s wrist and shoulder” until he was handcuffed.

When the demonstration moved outside, officers used batons to push back the crowd. Another claimant, Brooke Anderson, a photographer who according to the claim was wearing a visible press pass, said she was hit with a baton, which pushed her camera into her face, causing bruises. She said officers hit her repeatedly with batons on her arm, where she was wearing a brace because of a pre-existing injury.

Officer Brian Mathis wrote in his report that he had an encounter with a “female with a camera” who tried to walk past him. “I stopped her with an open hand,” Mathis wrote. “The female yelled, ‘don’t touch me!’”

New regulations require batons to be used only when force is “necessary and reasonable”

In the settlement Berkeley reached with Black Lives Matter protesters in February 2017, BPD had agreed to change its approach to how batons are used on skirmish lines. BPD had been following an unwritten policy that allowed officers “to use their batons on anyone who entered their ‘safety zone’ — an unmarked, undefined distance from a line of officers,” according to Lederman. The new regulations said that using force with batons must comply with the Fourth Amendment, meaning force must be necessary and reasonable.

Sgt. Todd Sabins wrote that one protester tried to grab his baton and pull it away from him, but he used a “figure 8” maneuver and hit her in the right shoulder and then on the right side over her face. She fell to the ground but then disappeared into the crowd and he was unable to find her again, Sabins wrote.

The police reports on the June 20 demonstration don’t document any injuries to protesters. The most serious injury alleged in the claim happened when Lewis Williams, a 74-year-old retired elementary school teacher, was struck in the head as he knelt to pick up his glasses. He said he did not see who hit him, but assumes an officer hit him with a baton.

“Despite the fact that blood was pouring from Lew’s head, no BPD officer provided first aid or called for medical aid,” the claim states. “Instead, demonstrators helped Lew to safety and tried to staunch the bleeding.”

The confrontation at the City Council meeting could lead to another lawsuit. “My clients would like Berkeley and BPD to take responsibility and take corrective measures without the necessity of suing the City, but, that remains to be seen and we are prepared to pursue this all the way,” Lederman said.

Other demonstrations in Berkeley last year led to violent clashes between far-right and far-left groups that went on with little intervention by Berkeley police. Chanin and Lederman said they were unaware of any use of force by Berkeley police officers during those protests. Since the department has not released detailed information about use of force, however, it is impossible to say for sure that no force was used.

Some more granular data about use of force by Berkeley police was released in a draft report last year by the Center for Policing Equity, which studied some of the department’s stop data and use of force reports from 2012-16 to analyze racial disparities and other factors. Chief Greenwood sought to prevent the release of the draft report last May, citing concerns about elements of the analysis and missing data. (Berkeleyside filed a public records request to see the underlying use of force data used to generate the report, but BPD declined to release it.)

The “draft interim report” was eventually released with a five-page memo from Greenwood detailing some of the concerns, including saying the use of force policy was described erroneously and that the report contains an inaccurate description of the December 2014 “riots,” though he did not elaborate on either point.

The report found that Berkeley police officers used force about 366 times on 180 people between 2012 and 2016. It found that use of force had declined slightly over that time, with an average of about eight or nine use of force incidents per quarter over that period.

But it also found that use of force record keeping was incomplete, as the policy only required that use of force be reported when the officer used a weapon, the subject was injured, or the subject complained. It did not include when officers tackle a suspect or use a compliance hold, unless the person complains or is injured. It also did not include if officers point a firearm without shooting.

The draft report’s first of 11 recommendations stated, “We recommend changing the use of force data capture protocol to register every use of force by BPD officers, regardless of weapon use, injury or complaint.” The final report has not been released.