Police in Berkeley now need permission to buy equipment such as battering rams, “less-lethal” launchers, M4 rifles and “flash-bang” grenades, and will be required to tell the public how often, and where, these items are used.
The change comes with the recent unanimous approval by the Berkeley City Council of a new policy put forward by Councilmember Kate Harrison‘s office with support from Mayor Jesse Arreguín and council members Ben Bartlett and Terry Taplin. The new law — slated for final adoption Tuesday — applies to any police equipment that might be considered “militaristic in nature,” including armored vehicles, launchers that fire rubber projectiles or bean bag rounds, guns or ammunition that are .50 caliber or greater, and a specialized loudspeaker, called a Long Range Acoustic Device, that is used during protests, disasters and other situations.
“Up until the ’90s, most police officers were out there with just a revolver, and seeing a police officer carrying a machine gun would have been pretty unthinkable when I was young,” said Harrison, who represents downtown Berkeley, during the initial council discussion about the item on April 27. “While a couple of these pieces are now considered standard by police, they are not standard to the public.”
Officials said the new law is designed, in large part, to address community concerns about racial justice and whether police use this “controlled” equipment in some neighborhoods more than others. Mayor Arreguín said he had been fielding complaints for years about the presence of “controlled equipment that looks like militarized-type equipment” at big street festivals in the city, including the Solano Stroll and South Berkeley’s Juneteenth celebration.
The mayor said the deployment of this equipment must be supervised because of the “psychological impact it has in our community and the erosion of police-community relations.”
“We need to keep track of these things because of the negative impact that displaying this equipment has in particular on Black and Latino households where the racial disparities are likely to be amplified when officers deploy this kind of militarized weaponry,” North Berkeley Councilmember Sophie Hahn said from the dais. “Is it used in all neighborhoods? Are children present to see this equipment equally in all neighborhoods? What impact does that have on people’s sense of safety and their trust in the police? I think this ordinance will provide data to help the public answer these questions.”
Added Bartlett, who represents South Berkeley: “We’re trying to get to some of the undercurrents of, ‘What is terror?’ honestly. Let’s call it what it is.”
Members of Berkeley’s Black community have, for years, shared stories about racial profiling and disparate treatment by police, demanding change. A recent review of police stops by the city auditor, which confirmed an earlier analysis by the Center for Policing Equity, found that Black and Hispanic drivers in Berkeley are searched more often than white drivers but are less likely to be arrested after the search.
Officials and experts have also noted, however, that racial disparities are pervasive across all aspects of society and that the racial disparities measured in Berkeley’s police stops are the lowest they have seen across the nation. The city’s Police Review Commission has historically upheld very few police misconduct complaints: There have been just two in the past two years. Both were for discourtesy. And there have been no sustained complaints in recent history regarding more serious violations such as excessive force, discrimination or improper stops and arrests.
Over the past decade, the city has paid out only about $300,000 in settlements related to police misconduct claims, the city attorney’s office found in a recent analysis.
The reimagining task force next meets Thursday, May 13
Still, there has been widespread agreement, particularly in the wake of George Floyd’s murder last year, that more work must be done to right historic wrongs. The recent City Council vote about police equipment was the latest local move in that direction. Other reform efforts underway include a task force to reimagine policing, stricter limits on the traffic stops Berkeley police can make, and the creation of a more powerful Police Accountability Board slated to take the place of the Police Review Commission later this year.
Stepped-up reporting by police will continue
Last year, amid its myriad discussions about police reform, the Berkeley City Council required BPD to hasten plans to make its use-of-force data public for the first time. The Berkeley Police Department shared those numbers last fall during the annual crime report. According to the department’s analysis, BPD has used force, on average, during 32 calls for service each year. BPD makes about 3,000 arrests annually and handles about 77,000 calls for service.
As part of the reforms enacted last year, council members expanded the definition for the types of force Berkeley police track and report. And the new law on equipment deployment will broaden those requirements even further.
Historically, BPD tracked incidents where someone had a visible injury or complained of pain, or anytime officers fired a gun or rifle. Last year, city officials added a requirement for BPD to report any incident where police pointed a firearm at someone, even if they did not shoot.
Last year’s reforms also required police to track and report any instance when an officer touched or grabbed someone, or used their body weight during an arrest, if it was “more than momentary discomfort,” Interim Police Chief Jen Louis told council at the recent meeting. Officers must now file a report even if the subject reports no pain and has no visible injury.
As a result, the chief said, officers are spending more time than ever documenting these interactions. From Feb. 22, when last year’s rules went into effect, through April 21, Berkeley police officers spent 374 hours on those reports, the chief said.
“That’s 374 hours that those field personnel are not in the field available to engage with the community, to answer calls for service, to respond to calls, or to do that field-level supervision,” Louis said. (That does not include the time spent by command staff reviewing all of those reports, she added.) “That 374 hours was concerning to me. That’s a significant amount of time for our personnel to not be able to do the job that we really need them to do, and that’s to really be engaged in positive ways with our community and keep our community safe.”
The public will now get even more granular statistics
The new law to be adopted Tuesday now adds to those demands by expanding both the circumstances and equipment police must file reports about. As one example, officers will now track how often they point a “less-lethal” launcher at someone; BPD was previously only required to report when those rounds were actually fired.
Police will not have to report “merely wearing a piece of Controlled Equipment,” according to the ordinance, only when they “deploy” it to “affect some response from members of the public.” Some of the new rules apply only to “crowd control” or “crowd management” situations, such as demonstrations and protests, while others apply across the board.
BPD will also have to report the deployment of controlled equipment during any Special Response Team operation, according to the ordinance. (The Special Response Team, which other police agencies call “SWAT,” generally handles higher-risk situation such as barricaded subjects and operations involving armed suspects.)
Throughout the night, there was confusion on and off the dais, however, about exactly what Harrison and her co-authors meant by the word “deploy.” Some said it seemed to have a different meaning than its use in existing city policies, which define deployment as force used to “gain compliance.”
To clarify the situation, city staff and some of the more skeptical council members said it would make sense to fold the new requirements into existing policies. This would make it more efficient for police to understand what they have to do and also avoid duplicative efforts with conflicting definitions and directives.
“What I really seek is something that’s clear for our officers to carry out,” Chief Louis told council, adding that officers understand what it means to track force when it is used to gain compliance, but would have a harder time interpreting whether the deployment of certain equipment “has an effect on someone.”
But proponents of the new law said it was important to enact the new policy now, to set the wheels in motion, and said the language could be changed later if that is needed. They also said the new law will be much more transparent: Reporting under the old system was aggregated in a way that did not allow the public to see equipment-level or neighborhood-level data. The new reporting will address that issue.
Harrison said it was a myth that the new rules would be “overly burdensome,” adding that it is incumbent on government to explain to the public what it’s doing.
Best use of Berkeley police time?
Councilmember Rashi Kesarwani, who represents northwest Berkeley, said she wholeheartedly agreed about the importance of transparency and supported the new law in concept. But she said aspects of it, as crafted, would require duplicative reporting that was “not an appropriate use of the valuable time of our officers.”
Kesarwani said the new law will require Berkeley officers to file two separate administrative reports about the same equipment and incident. The result, she said, would be to “take precious time away from responding to serious crimes in progress or investigations of violent crimes, including unsolved tragic murders in our community that have taken place.”
Read more about crime in Berkeley
Kesarwani said she had been concerned, in particular, about the increase in gun violence in Berkeley — which has been on the rise for several years — a recent unsolved armed robbery series in the Southside neighborhood and elsewhere, as well as a series of armed robberies and attempted robberies of cyclists in the Berkeley Hills.
The average salary for a police officer in Berkeley is approximately $150,000, she added, which swells to $250,000 when benefits are added: “I believe we have a responsibility to ensure that every minute of time that our officers spend on duty is well spent,” she said. To address those concerns, Kesarwani put forward amendments designed to streamline the new law and reporting rules. Those amendments were not ultimately adopted, however.
Arreguín and others said — even though some of the same ground may be covered in both reports — they do not see the new rules as redundant because they require more specificity, include more categories of equipment and circumstances, and will require that more data is shared with the public each year.
Hahn, too, countered Kesarwani’s points, saying that, while “any crime is too much crime,” crime rates had been much higher in Berkeley when she was growing up.
“The trends over the past 30 or 40 years are down, down, down, down, down,” she said. “We do have little blips, a little more of this or that from one year to another, but overall crime is down.”
Hahn said she, in fact, would like to expand the reporting requirements so that holding the equipment covered by the new law would also need to be documented and publicized.
“I think just carrying a weapon, a military-type weapon, can have a real effect on the people who see it and are near it,” Hahn said. “I really think this is information we need to have and I don’t think it’s onerous for us to obtain it.”
Hahn did not make a formal motion to include that language, however, and no other council members voiced support for the idea.
See more highlights from the meeting on Twitter
Harrison dismissed Kesarwani’s questions, as well, arguing over the details of what will now be reported and saying, essentially, that her colleague was getting sidetracked by unimportant details. Harrison said she was also upset because these matters had been discussed at length in other meetings for more than a year.
“I have never seen an assault weapon or a launcher on my block, ever,” Harrison said. “I want to know if people in South Berkeley are seeing these weapons more regularly. That is the point of this entire thing, which we keep not talking about: the racial justice piece of this.”
Council discussion of police audit to come Tuesday
Once the new law goes into effect, the city’s Police Accountability Board and City Council will need to review and ultimately approve any purchase of controlled equipment, as described in the ordinance, prior to its acquisition.
The Police Accountability Board, which was overwhelmingly approved by Berkeley voters in November 2020, is slated to replace the city’s Police Review Commission later this year. Under the current schedule, council will vote in the new board members June 1. Unlike the PRC, the new board will have greater authority to investigate complaints about police, obtain records related to those complaints and recommend discipline.
On Tuesday, along with the final vote on the new controlled equipment ordinance, the Berkeley City Council is also scheduled to discuss a recent analysis by the city auditor about Berkeley police calls for service. Council members called for the audit last year to help them make decisions about changes to the police budget as well as the priorities they want officers to have.
The audit analyzed the thousands of unconfirmed reports made to the department each year, which officers are then dispatched to investigate, as well as the in-progress incidents officers themselves handle. (Initial calls for service can vary significantly from the ultimate disposition of an event or crime, but those dispositions were not part of what was studied.)
Ultimately, the analysis by the auditor’s office found that, despite significant public interest in the amount of time BPD spends on calls related to mental health and homelessness, the department does not consistently track it. The department has agreed to correct this going forward, City Auditor Jenny Wong has said.
The audit also looked at the racial disparities in local police stop data and, for the first time, broke down how much time Berkeley patrol officers spend on different “event” types. Neither the auditor’s office nor BPD has released the dataset analyzed in the recent report, but Wong has asked BPD to make it publicly available. (Update, May 10: BPD told Berkeleyside after publication that the calls for service dataset had recently been posted on the city’s open data portal.)
The auditor’s report has been making the rounds in Berkeley since its release in late April. On a recent Thursday, the city’s Reimagining Public Safety Task Force had its own discussion of that analysis. Commissioners praised the report and said they hope to be able to get more data about mental health calls and incidents related to homelessness as they work to come up with new models for community safety.
One commissioner tied the audit discussion back to comments, at the start of that night’s meeting, from members of the business community who had described feeling unsafe on Berkeley streets at night and asked the task force to have a listening session to hear directly from merchants about their concerns.
One business owner, from a popular downtown Berkeley restaurant, said encounters with people who seemed to be mentally ill or addicted to drugs had increased in the past year, ultimately leading to the unprovoked attack recently of one of his employees as she tried to close up shop; the assailant said he had a knife and told the woman he was going to slit her throat.
The commissioner, Edward Opton, said he wanted to know why these disturbing interactions, which did not seem so common elsewhere, have been increasing here.
“What is making Berkeley different in that respect, and what would it take to change that?” Opton wondered. “My hunch is that we will not find the answers to that in the kind of data that can be audited.”
The next meeting of the reimagining task force takes place Thursday and will include an overview of police operations, presented by the chief; an update about the city’s plans to develop a new Specialized Care Unit to handle mental health calls instead of armed police; and the latest version of a community survey in the works to seek feedback about the kind of policing people want to see in Berkeley.
Stay tuned to Berkeleyside for continuing coverage.