Why you should care about our lawsuit against the City of Oakland
[The individual quotes below are taken from an accompanying press release. The individuals and their respective organizations may not share all the view points raised in this article.]
On September 2, 2021, Secure Justice, and our executive Director Brian Hofer in his individual capacity (Hofer also chairs the Privacy Advisory Commission), sued the City of Oakland, the Oakland Police Department (“OPD”), and the Oakland City Attorney for multiple violations of the city charter, a surveillance technology vetting ordinance, multiple surveillance technology use policies, and multiple state laws pertaining to surveillance technology use and/or public record requests into such use.
As a result of the tumultuous “Occupy” and “Domain Awareness Center” campaigns, on January 19, 2016, the City of Oakland enacted Ordinance No. 13349, which created a first-of-its-kind civilian oversight body of subject-matter experts, the Privacy Advisory Commission (“PAC”), to advise the City Council about how best to balance the potentially harmful effects of surveillance technology and data mining practices and public safety. On May 15, 2018, the City enacted Ordinance No. 13489 (Oakland Municipal Code § 9.64 et seq.), commonly referred to as the Surveillance Technology Ordinance. The Surveillance Ordinance provides that the PAC is responsible for vetting surveillance technology proposals submitted by city departments. The ordinance imposes a standard for each piece of surveillance technology - that the potential benefits of use according to the proposed use policy outweigh the potential negatives to both civil liberties and the taxpayer. At the heart of this lawsuit is OPD’s refusal to provide the required information (records of third party data access, efficacy metrics, audits), making it impossible for the PAC to determine whether such a standard has been met.
Oakland follows a similar path first blazed by Santa Clara County in June of 2016, which was the first entity in the nation to enact the ACLU’s model “Community Control Over Police Surveillance” or CCOPS, technology vetting framework. Now in place in 19 jurisdictions across the country, with 7 in California, Oakland stands alone in having the sole privacy commission integrated into the oversight regime. On paper, Oakland is clearly the most robust and transparent of the 19 jurisdictions, but as our lawsuit suggests, the model is failing to work in Oakland and the other jurisdictions primarily because the culture of policing hasn’t changed, there is a lack of trust in the data being presented, and because the civilian volunteer commissioners cannot confirm the veracity of what the police are claiming, having no access to the raw, confidential underlying data. We are not alone in our concerns - Secure Justice routinely fields calls from activists, administrators and legislative staff in other jurisdictions inquiring as to whether any independent (or verifiable) audits are being performed (spoiler alert - they are not). In other words, the ACLU model requires the public to take at face value the self-serving claims of a self-interested party. In today’s climate of distrust in the institution of policing, and with an institution clearly willing to mislead the public, this is a fatal flaw that must be cured if the model is to succeed.
"The privacy commission is designed to give the Oakland community an ability to raise their concerns about civil liberties and privacy matters,” said Heather Patterson, Secure Justice Advisory Board and a member of Oakland’s Privacy Advisory Commission. “That process is undermined when the City and its agencies fail to comply with the law’s requirements. I know that my colleagues share my frustration.”
As stated in Secure Justice’s lawsuit - “One of the PAC’s functions is to address the disparate impact of the use of surveillance technologies, which historically have been used in negative ways against certain communities more than others. A 2015 Electronic Frontier Foundation analysis of OPD’s raw automated license plate reader (“ALPR”) data showed that certain populations are targeted by OPD’S ALPR use more than others for no obvious law enforcement purpose. Historical locational data is extremely revealing, as the United States Supreme Court and others have recently ruled in Carpenter and Jones, allowing our patterns, associations, and habits to be relatively easily ascertained especially when commingled with the many other databases and sources of information available to law enforcement.
A study by Stanford University’s Dr. Eberhart showed OPD’s vehicle-stop data demonstrated racial profiling by OPD. The study showed 61% of all individuals stopped were African American, despite making up less than 25% of Oaklanders and despite similar rates of contraband being found as other races; 77% of OPD officers never discretionarily searched a white person, but 65% did so with an African American. Furthermore, 74% of OPD officers did not handcuff a white person that was ultimately not arrested, yet 72% of OPD officers did with an African American that was ultimately not arrested. OPD’s refusal to comply with its reporting obligations prevents the PAC and the public from ascertaining whether OPD’s use of surveillance technology disproportionately disregards the civil liberties of Oaklanders.”
These are no mere ‘process’ violations. OPD is in its record-setting 18th year of federal monitoring, pursuant to a Negotiated Settlement Agreement (“NSA”) that came about during the “Riders” scandal at the turn of the century. Four OPD officers were routinely planting drugs on Black and brown folks and falsely accusing them of crimes. A brave rookie officer named Keith Batt blew the whistle. Despite some of the largest scandals in policing history arising during this 18 year time oversight period, never once has former Judge Henderson (now retired) or current Judge Orrick held a commander-level officer responsible, only doling out discipline to low-level front line officers. In fact, the commanders that unsuccessfully attempted to cover-up the “Celeste Guap” scandal were promoted and given pay raises. Despite very low crime clearance rates and a pattern of human rights abuses, the City Council has increased OPD’s budget every cycle, and approved every police union contract put in front of it (with the problematic mandatory arbitration provisions that, in practice, force us to retain officers guilty of misconduct). In a bewildering move, the plaintiff’s attorneys in the NSA recently announced they would be comfortable exploring the end of federal monitoring, despite OPD being out of compliance with the terms of their own proposed agreement. Stated simply, OPD has no incentive to change its culture because they never suffer any meaningful negative consequences.
"Oakland's history of racial and social justice movements like the Black Panthers and Occupy is also accompanied by a history of racial profiling, infiltration by law enforcement, and use of surveillance techniques to target and disrupt those advocating for human rights," said Cat Brooks, Executive Director, Justice Teams Network. "With a police department in its eighteenth year of federal oversight due to systemic racism, it is astonishing how little the culture inside the police department has changed. This is why federal oversight should not be terminated prematurely, as Plaintiff’s attorneys have recently suggested. We appreciate the efforts of the Privacy Advisory Commission to maintain oversight and transparency into OPD’s use of dangerous surveillance technology, and that Secure Justice is seeking to hold them accountable.”
By withholding information legally required to be disclosed to the public, OPD and the city attorney are prohibiting the PAC from performing its oversight role, and the public and city council are unable to determine whether use of these surveillance technologies is effective and being used according to the approved use policies in a lawful manner. With a police department proven to be guilty of decades worth of serious misconduct, the public has every right to be suspicious of their actions, especially when OPD consistently misleads the PAC and public about their actions.
If you’re curious as to how bad things are, watch the PAC’s hearings in February, April, May, June and August. OPD is caught making so many untrue statements that it’s impossible to restate them all here. Seemingly every OPD representation challenged by the PAC has turned out to be false. None of the numbers provided by OPD can be presumed accurate or trustworthy. For but one example - in April 2019, OPD’s Bruce Stoffmacher represented to the PAC verbally and in writing that OPD needed to retain license plate reader scans for a two-year period (far outside the norm) due to purported efficacy of historical searches. He claimed (within the required impact statement) that 147 emails demonstrated such efficacy. When asked to provide the emails so the PAC could confirm for themselves, he refused. Secure Justice’s Hofer submitted a public record request for the emails, which OPD ignored for almost two years. When they did produce some emails, only one email showed a likely success, and nine more emails were too ambiguous to confirm either way. Giving OPD the benefit of the doubt, these ten emails together are nowhere close to the 147 represented by Stoffmacher. It is notable that after Hofer submitted his public record request for the emails, OPD withdrew the claim in the license plate reader proposal pertaining to these emails. OPD knew the statement wasn’t true.
Why does this matter? The lengthier retention and greater accumulation of data points allows for data mining - figuring out the travel patterns and parties with whom we associate. Maybe we don’t want to disclose to the general public that we have cancer or that we’re into same-sex relationships - but getting tagged outside a cancer clinic or a gay bar creates such an inference. Documentary evidence across the country has revealed that law enforcement has unlawfully used license plate readers to target folks exercising 1st Amendment protected activity, such as attending the George Floyd protests last summer. It only takes 3 geospatial (time, location) data points to identify 95% of individuals, as we are creatures of habit. If Oakland is to allow the use of ALPR for mass surveillance, the efficacy must far outweigh the civil liberties impact. The little evidence provided by OPD demonstrates no statistically significant efficacy when it comes to crime fighting in Oakland, and their own data suggests a retention limit of no longer than 48 hours. Yet OPD came to the PAC with a request for a two year retention period, demonstrating the lack of mindfulness necessary for a viable model.
In addition, OPD’s casual references to violating their own use policies by allowing third parties unfettered access to sensitive information not only further confirms that OPD can’t be trusted with sensitive information, but it also provides data to third parties that may not share our values. As ICE targets immigrants in our community, and the FBI has for decades targeted social justice movements across the country and locally (both entities that OPD cooperates with) Oaklanders may be at risk of persecution by these other agencies. Both ICE and the FBI have targeted Oaklanders recently, and in the past. By refusing to track third party access as required by law and policy, OPD is prohibiting the public, the PAC, the City Council, and all Oaklanders from having any confidence that their sensitive data is protected.
Such concerns are not limited to those with police power - domestic violence/stalking apps are becoming its own surveillance technology niche, as ex lovers turn to tracking and monitoring the communications and locations of their former partners. One such recent case resulted in murder.
“Transparency laws aren’t beneficial to the public when OPD and the city attorney refuse to comply and disclose the required information. Oakland has a long history of cooperating with the FBI and others to target social justice movements, including targeting the Muslim community post 9/11,” said Sameena Usman, Senior Government Relations Coordinator for the San Francisco office of the Council on American-Islamic Relations. “On behalf of CAIR-SFBA, we strongly advocated for these laws that are being routinely violated by OPD, and as a Secure Justice Board Member, I am confident that we will ensure that these laws are followed.
Once again, the taxpayers of Oakland will pay for the wrongdoing caused by others. This is unfortunately a well known tradition in Oakland. Having reviewed in-house and outside counsel fees, federal monitoring contracts, reported settlements and judgments since the Riders trial, Secure Justice estimates that through 2018, OPD’s misconduct has cost the taxpayers of Oakland just over $200MM, without adjusting for inflation (probably closer to $300-350MM in today’s dollars). Several large settlements have occurred since 2018, including the payment of hundreds of thousands of dollars in attorney fees for public record noncompliance by OPD.
On May 11, 2021, as things became more contentious between the PAC and OPD, OPD’s license plate reader annual reports headed towards the Public Safety Committee. Here, with the assistance of the City Attorney, OPD went all out to deceive the public and elected officials as to their compliance with the use policies, public record act, surveillance ordinance, and other state laws pertaining to license plate reader use. After hearing from all parties, the Public Safety Committee unanimously voted to return the item to the PAC, and ordered OPD to provide all the missing information so that the PAC could perform its job.
On May 12, the very next morning, Secure Justice’s Hofer met with the entire OPD command staff, including newly appointed Chief Armstrong. Chief Armstrong, and Deputy Chief Lindsey, among others, all stated to Hofer that they would act in good-faith, that the missing information would be provided, and that OPD desired to “reset the clock” with the PAC. None of these statements were true in practice, as OPD’s misconduct greatly worsened after this meeting.
This is not the first time OPD or its Chief have lied to the PAC or public. Back in August 2017, former Chief Kirkpatrick publicly slandered an innocent immigrant family by accusing them of sex trafficking children. She ordered OPD to participate in a raid led by ICE, in violation of Oakland’s Sanctuary City status. The whole incident was based on multiple false statements told by Chief Kirkpatrick and OPD. To date, no one from OPD, the Mayor’s office, or the City Administrator’s office or staff has ever apologized to the innocent immigrant family for the slander, or for not believing the PAC when they challenged the veracity of Chief Kirkpatrick’s statements. The entirety of City Hall, except for current Vice Mayor Rebecca Kaplan and former Council Member Desley Brooks, “circled the wagons” to protect Chief Kirkpatrick, rather than stand for truth and justice. The Oakland City Council took no action against Chief Kirkpatrick.
Oakland is presently facing millions of dollars in lawsuits from the George Floyd protests last summer. Then-Deputy Chief Armstrong falsely claimed that a Molotov cocktail had been thrown at officers, apparently justifying OPD’s use of munitions, tear gas, and use of force against a youth-led rally of high school teenagers, moms, and children. As OPD dodged public record requests into the inquiry for over a year, and as the PAC reviewed OPD’s Live Stream Camera Annual Report (the cameras were used at the protests), Secure Justice’s Hofer raised the issue that OPD had misled the public about the incident at the May PAC meeting. Deputy Chief Drennon Lindsey was present, and she immediately spoke up to say that the Molotov cocktail incident did occur, and that the incident was “well documented.” Captain Trevelyon Jones was also present and he spoke after Deputy Chief Lindsey, stating that there “is body worn camera footage” of the incident, and that he had “personally seen the footage.” On June 2, 2021, OPD Chief Armstrong stated at a public press conference that the story he relayed to the public about the Molotov cocktail was not true. It did not occur.
On May 18, 2021, Secure Justice’s Hofer met with OPD and the City Attorney to discuss potential resolution of these disputes. Hofer offered to waive all claims if OPD would publicly acknowledge a negotiated list of wrongdoing. Rather than even attempt to negotiate the list, OPD told Hofer it had done nothing wrong.
In our opinion, Oakland is the worst jurisdiction in the country when it comes to public record non-compliance. Having fought the city for years on this issue, in 2016 or 2017, Hofer offered City Attorney Barbara Parker that he would waive all public record claims in exchange for her help creating a training protocol for staff. She refused, and she continues to refuse to do her job, by allowing non-qualified, non-legal staff to make legal conclusions as to what is and is not disclosable under California’s Public Record Act.
“I want to make clear to the taxpayers of Oakland and to the City Council that we have privately tried for a couple of years to resolve this matter with both OPD and the City Attorney before filing this lawsuit,” said Brian Hofer, Chair of the Privacy Advisory Commission and Executive Director of Secure Justice. “They refused to acknowledge any wrongdoing, and their conduct has become even more egregious since those negotiations broke down. Eighteen years of federal oversight has not improved the culture at Oakland City Hall, as our elected officials continue to tolerate this behavior. Just like with federal monitoring and the many civil rights lawsuits we’ve settled, the taxpayers of Oakland will again be forced to pay for the wrongdoing of others.”
Secure Justice’s lawsuit is viewable here.