Oakland’s Most Decorated Officers Responsible for High Number of Brutality Lawsuits, Shootings

 An Oakland Police Department officers holds onto a protester while others try to pull him away and prevent his arrest during the May 1, 2012 protests in downtown Oakland. Photo by Glenn Halog.

An Oakland Police Department officers holds onto a protester while others try to pull him away and prevent his arrest during the May 1, 2012 protests in downtown Oakland. Photo by Glenn Halog.

It was almost noon on an overcast day in East Oakland, home to much of the city’s violent crime, when the three officers spotted the teenage boy. Dark hair, short, sweatpants, and, as they drove by in their unmarked car, something big that the boy was trying to conceal in the waistband of his pants: a gun.The three officers were part of an elite six-man unit that investigated and combated gang activity. By the end of the year, 2008, the unit members would individually make five times as many felony arrests and confiscate 13 times as many firearms as officers in quieter parts of the city.

They were also, based on their own reports, seven times as likely to use force when making an arrest. Over the course of their careers, Sgt. Randolph Brandwood, Eric Milina and Robert Roche were involved in a total of five police shootings, all of which had killed or injured someone. All three officers had also been named in lawsuits accusing them of brutality.

What happened after they backed up and stopped next to the teenager on that spring day is debated. Witnesses said the boy raised his hands above his head; the officers said he pointed a sawed-off rifle at them. They shot him multiple times. The boy, 15-year-old Jose Luis Buenrostro, died soon after at a nearby hospital.It was the second fatal police shooting in Oakland that week and it sparked an outcry. Protesters marched on a local police station. Buenrostro’s parents filed a wrongful death lawsuit against the city, accusing the officers of attempting to hide evidence by moving shell casings and cleaning up blood before police technicians arrived at the shooting scene.

The department’s top brass saw the officers’ actions in a different way. In December 2008, they awarded Brandwood, Milina and Roche the Medal of Valor — the department’s highest honor for bravery — for the shooting. It was second Medal of Valor Roche earned for an officer-involved shooting.

The correlation between use of force and top honors at the Oakland Police Department goes beyond the Buenrostro shooting. Since 2007 the recipients of the department’s most prestigious awards have been involved in significantly more shootings and lawsuits involving allegations of brutality and other types of misconduct than officers who earned lesser awards.

An investigation by Oakland Police Beat — which included a review of police department records, Alameda County District Attorney reports, Oakland City Attorney lawsuit data, and hundreds of federal and state court records — has found that of the 35 officers who have received the most awards and medals:

  • 40 percent were involved in one or more officer-involved shootings, for a total of 29 shootings. Sgt. Patrick Gonzales and officer William Pappas, were each a part of four shootings; Capt. Ersie Joyner III was involved in five.
  • 61 percent were named in civil rights-related lawsuits, in a total of 43 suits. Fourteen officers were named in two or more cases.
  • At least four were members of the small tactical squads, called Tango Teams, that used chemical agents as well as beanbag and explosive projectiles during violent clashes with Occupy Oakland demonstrators in 2011 and 2012. (Oakland has spent more than $6 million to settle lawsuits stemming from those clashes.)

The top 35 most-decorated officers work in a wide spectrum of roles ranging from gang and drug task forces, to traffic investigation units, to training. By comparison, the top 100 officers who’ve received lesser awards also work in the same range of jobs. But only 30 have been named in lawsuits and 15 were involved in a police shooting. (See How We Analyzed Our Police Officer Data for our ranking methodology.)

We were unable to expand our investigation before 2007. According to the Oakland Police Department, they did not keep records of individual officer awards prior to that date.

All of the shootings were considered justified by the Police Department. The Alameda County District Attorney, which investigates police shootings, cleared all of the officers of criminal wrongdoing. Similarly, all of the lawsuits involving these top officers were settled out of court. They were not criminal cases; the city did not admit to any wrongdoing when it settled.

But there is a grim parallel between our findings and what independent commissions created to investigate high-profile scandals at police departments in New York City and Los Angeles, as well as at the Los Angeles Sheriff’s Department, all found: the officers with a history of violent behavior were also the officers that earned some of the most praise and the most awards.

The OPD’s top brass argues that much has changed since the Police Department’s highest-profile scandal came to light more than 13 years ago. Following allegations that a group of officers, nicknamed the Riders, beat, kidnapped and planted evidence on suspects, a federal judge required that the OPD modernize how it reported on and investigated use of force incidents and complaints.

As the OPD points out, some progress has been made. But its decade-long inability to fully implement reforms lead the judge to take control of the OPD away from the city in 2012.

The question remains whether top officers with violent pasts are a minority who legally push the boundaries in how they use force — or whether they’re an indicator that the Oakland Police Department rewards officers for brutality and that the culture that lead to the Riders scandal is still part of the department today.

The Oakland Police Officers Association, California Police Chiefs Association and California Peace Officers’ Association did not respond to our requests to comment on this story.

The Oakland Police Department was given advance opportunity to preview our findings and respond. It has not done so. This story will be updated if that occurs.

Top Brass Are Accountable For How Officers Use Force

Since 1991, when five Los Angeles police officers were caught on video beating Rodney King, dozens of studies have examined how officers use force — excessive or otherwise — in the country’s largest and smallest departments.

There are a handful factors that may correlate with an officer using an increased amount of force, for instance if a suspect is intoxicated or he has an antagonistic demeanor. The amount of hands-on contact officers have with suspects could also be a factor. A 2010 analysis of a metro-area police force with approximately 2,000 officers found that officers who regularly used force made, on average, twice as many arrests as those who rarely used force.

But research conducted at one law enforcement agency often contradicts the findings made in studies at agencies in other parts of the country. In fact, when it comes to the characteristics of individual officers, the findings are so divergent that there’s little evidence that factors such as education, race, socioeconomic background or training can be used in a generalized fashion to predict an officer’s likeliness to use force.

A protester's sign references Thelton Henderson -- the federal judge who has has forced the Oakland Police Department to enact reforms -- during the Occupy Oakland protests. The OPD faced multiple lawsuits alleging its officers used excessive force during those protests. Photo by Eric K Arnold.

A protester’s sign references Thelton Henderson — the federal judge who has has forced the Oakland Police Department to enact reforms — during the Occupy Oakland protests. The OPD faced multiple lawsuits alleging its officers used excessive force during those protests. Photo by Eric K Arnold.

Barbara Armacost, a professor at University of Virginia School of Law, argues that laying blame solely on individual officers is a mistake. While officers are responsible for their own actions, they’re also deeply influenced by an organization’s culture — which is set by those that lead the department.According to Armacost, “The only way that individual cops will change is if the organizational culture changes, and the only way that the organization will change is if high-level officials are held accountable for the actions of their subordinates.”

If a department’s leadership isn’t held accountable, says John Burris, an Oakland civil right attorney known for high-profile OPD brutality cases, it creates a culture where excessive use of force is rationalized or ignored — and officers who are aggressive get awarded or promoted because, while it’s not legally permissible, no one is held responsible.

The findings from our investigation into the OPD’s most decorated officers as well as the department’s overall use of force appear to reflect the kind of culture that Armacost and Burris describe.

Since 1990, the City of Oakland has settled more than 417 excessive use of force lawsuits filed against the OPD. If those suits are an indicator of how OPD officers use force, then they also represent its leaders’ willingness to change that behavior.

In the decade following the Riders scandal, the average number of civil rights lawsuits settlements the city paid out each year decreased only slightly. (In recent years the number of settlements has dropped significantly, but the amount paid out in each settlement has skyrocketed.)

Does the OPD’s current leadership understand its role in shaping how officers use force? “They understand that’s the right way to do things because of the [court mandated reforms], but I’m not certain that message has gotten consistently through,” Burris said.

When Does Force Become Excessive?

Considering the injuries, loss of life and tens of millions of dollars in legal settlements stemming from how police officers use force, the definition of “excessive” is surprisingly vague.

The International Association of Chiefs of Police defines force as the amount of effort required to get “compliance from an unwilling subject.” Excessive force is using “an amount and/or frequency of force greater than that required” to get that same level of compliance.

In other words, acceptable force is an officer pushing a combative suspect up against a police vehicle while he’s being handcuffed. Excessive force is anything beyond that.

Most law enforcement agencies, Oakland included, have specific policies as to what kinds of force can be used. Over the last 30 years, many law enforcement agencies have also adopted what’s known as a “use of force continuum.”

A continuum illustrates, in a series of escalating levels, the appropriate response an officer should have when a suspect resists the officer — starting with verbal commands, progressing to the officer using his or her hands, then less-lethal weapons and finally deadly force. Agencies also use continuums to train officers in how to identify and react to different types of situations.

Continuums are based on department policy and an agency’s local and state laws. But among different agencies there are often significant differences in the kinds of force that each feels is appropriate for a given type of resistance.

In an analysis of force policies at 1,083 police agencies, researchers from Michigan State University found that about one third of the agencies thought chemical sprays should be on par with an officer hitting a suspect with hands or feet. A different 30% put the sprays on a more serious level on their continuum, on par with using a nightstick.

Even among individual officers there’s disagreement over what’s considered excessive. Researchers at the University of Delaware gave 3,235 officers from 30 U.S. agencies a survey on police integrity. One question asked what kind of discipline should be handed down to an officer who punched a suspected thief in the stomach several times as “punishment” for trying to evade arrest by running away. The majority said suspension without pay.

But when individual agencies, which were anonymous, were compared, there were significant differences. Officers at one agency unanimously thought the excessive force example was grounds for dismissal. Officers at another agency — which the survey researchers described as having one of the lowest overall scores on the integrity survey and as having ongoing corruption problems — thought it was worth a written reprimand.

Seeing as how most lawsuits involving allegations of police brutality end up in federal court, it would seem likely there would be a legal precedent as to what constitutes excessive force.

Occupy Oakland demonstrators and media scatter after an explosive projectile is thrown into a crowd gathered around Scott Olsen, an Iraq War veteran whose skull had been fractured moments earlier by a separate projectile. Oakland recently settled a lawsuit filed by Olsen for $4.5 million. Video stills courtesy of KTVU.

But according to Rachel Harmon, an associate professor at the University of Virginia School of Law, despite those cases there is still no definitive legal framework for determining why, when, and how much force is acceptable to use.

Harmon lays the blame for the lack of a concrete definition on the federal courts that hear police brutality cases: “There has been no substantial advance over the Supreme Court’s formulation, no further attempt at a test or a structure, almost nothing to help officers, victims, juries, or the public understand the nature of legitimate police force.”

“Dangerous” Tactics and a Captain’s Certificate of Commendation

After Jose Luis Buenrostro was shot and killed in March 2008, friends and relatives created a makeshift memorial of candles and flowers near the tree-lined intersection in East Oakland where he was shot. His parents told reporters that they flew his body to Mexico to be buried. OPD officers would go on to shoot another 10 people by the end of the year.

Buenrostro’s parents eventually agreed to a $500,000 settlement in their wrongful death lawsuit against the City of Oakland. As in other settlements involving alleged police misconduct, the city did not admit to any wrongdoing.

Since the shooting, Brandwood and Milina have received multiple awards and commendations, for, among other things, perfect driving, good conduct and outstanding performance evaluations. In 2011 Milina was awarded the Medal of Merit, the department’s second-highest honor, for working undercover to infiltrate a gun and drug smuggling ring.Things didn’t turn out the same for Roche. On Sept. 17, 2012, Roche was awarded a Captain’s Certificate of Commendation. But according to the East Bay Express, at some point after that he was fired for his excessive use of force during the Occupy Oakland protests in 2011 and 2012.

On the night of October 25, 2011, Roche was likely a member of a Tango Team — groups of four to seven officers that had the ability to use chemical agents as well as beanbag and explosive projectiles. Roche was standing near an unknown officer who used a shotgun to fire the metal-filled beanbag that hit protester Scott Olsen in the head, fracturing his skull. As a small crowd rushed to assist Olsen, an officer with Roche’s number on his or her helmet can be seen in news video throwing a blast grenade into the crowd.

In 2012 an independent report commissioned by the city called the crowd control tactics used by Roche and other officers “dangerous” and “outdated,” and said the use of force reports made by the officers nearest Olsen were “unsettling and not believable.”

The OPD would not confirm if Roche has been fired. (According to the Express he’s currently challenging the termination in arbitration.) If he was fired, it’s one of the few times in recent history that the OPD has turned on one of its own because of how he used force.

Does that reflect a change in leadership? Or are things the same as ever? Since Buenrostro was shot, four of the most decorated officers have been involved in police shootings and seven were named in civil rights-related lawsuits the city settled.

Burris remains optimistic: “If you don’t hold [officers] accountable, there’s no fear and if there’s no fear they’ll continue to do what they’re doing,” he said. “The command staff has to set forth an attitude and a mindset [the] conduct is not acceptable — and that can be done.”

Source Notes for Oakland’s Most Decorated Officers Responsible for High Number of Brutality Lawsuits, Shootings.

6 Comments

  1. Pushing a combative subject against a police vehicle while handcuffing is a) not realistic and b) anything above that is not excessive.

    A person yelling and screaming and trying to spin around, yes they get shoved into a solid object while two cops try to cuff. But someone combating you, fighting you, that is different. They get punches, kicks, knee strikes, dumped on the ground. And that is not excessive. Those are lesser uses of forve than OC spray, or a baton strike. All of which would be acceptable in that scenario.

    A subject resisting police receives one level of force higher than they are giving. I.e., passive resistor=verbal commands first, then physical control holds/pain compliance. Someone with a knife gets a gun (or a less lethal weapon such as a beanbag round, or taser, with a lethal cover officer present ready to engage and if they are not a threat to anyone but themselves).

    Cops get sued, a lot. Oakland’s city policy is to payout fpr everything.

    Most of those cops are the workers. And their medals are not medals for violence. They are awards for dealing with an extraordinary situation beyond control that resulted in no one else getting hurt. Sometimes those are shootings.

    Do you propose that officers who shoot someone are to be cast out, hidden away, made to feel like they are worthless and that they have no place? Police carry guns for a reason. Sometimes that means they get used to protect the officer, or someone else. Sometimes they are used to apprehend a violent armed criminal who poses a threat to the public safety. And those officers, in those situations, should be awarded and decorated.

    Reply
  2. “But according to Rachel Harmon, an associate professor at the University of Virginia School of Law, despite those cases there is still no definitive legal framework for determining why, when, and how much force is acceptable to use.”

    I disagree with this. I would say that the US Supreme Court has given relatively explicit instructions on what constitutes reasonable force, and that further Appellate Court case law has provided much more direction. Consider Graham v. Connor 490 U.S. 386 (1989) which sets out an objective reasonableness standard for the use of force by police, creating several factual areas that must be examined when determining whether a police officer’s use of force was “reasonable” (i.e. NOT excessive). Some of those include the severity of the crime at issue, whether the subject of the force posed an immediate threat to officers or others, and whether the subject was fleeing or actively resisting.

    I’m extremely surprised that this case, at least, did not come up when talking about police brutality and the legitimacy of force. Graham and its offspring have informed police of the limits of their authority to use force for some time now, and that it did not come up in this analysis – and that somehow, a professor of law is paraphrased making it seem as if there is no framework whatsoever on which to judge the use of force by police officers – makes me suspect very much some of the other conclusions herein.

    Reply
  3. Great article! It takes courage to expose problems within police departments. Thanks for writing about OPD.

    Reply
  4. So should we ask our Officers to just stand there and not defend themselves or protect the city? It is unrealistic especially in a city like Oakland to expect Officers to do nothing. How is it you think it should be handled? Ask the protestors nicely to stop? Spray water at them? Give them a curfew? What grand ideas to all of you complaining have? I dont see you out there trying to stop the violence, your part of the problem!!!

    Next protest I think the Police should not be called out, let the city handle it the way they feel it should be handled. That city will be torn down in a few weeks.

    You are making the police targets for everyone, ridicilious!!!

    Reply
  5. Eowyn: Please see SJ and JT.

    Doesn’t seem so “courageous” in that context, does it?

    Reply
  6. given the propensity for oakland leos to retaliate against those who out them for bad behavior, it is, indeed, courageous to step up against and out opd for these ongoing aggressive violations of people’s rights . opd has a very long history of rewarding violence, even against unarmed people . sj and jt are cops, or otherwise police apologists, from the camp believing that police work is the most dangerous . police work is not remotely the most dangerous work, and police in oakland are some of the world’s most cowardly workers

    most recently, a small cadre of violent officers, most from the tango team, were given awards after having brutally assaulted a protestor . having been part of a front line of officers intentionally, illegally and repeatedly assaulting the many people on the front line of an unarmed, non-violent, constitutionally protected protest, officer natalie windham switched her grip from poking those unarmed people with a stabbing motion of her stick, as other officers were also (illegally) doing, to a baseball bat grip, and began wailing on one particular person . those officers who chose to, instead of stopping her violent and illegal attack, support her by helping drag the person away from the group, were surrounded by still not remotely violent protestors … who chanted to let the person go . the worst that happened to police that day was that they were the targets of someone with paintballs . lawsuits were paid out by the city, the frasier report called the actions of opd that entire day and all the weeks surrounding that day, illegal and unconstitutional … yet those particular officers were each given a silver star award for that particular incident, for having assaulted, beaten, and abducted that particular person and everyone else within reach

    oakland police are, generally, thugs with badges . anyone who wants to claim it’s only a few should first consider the reality that no other officers, the supposedly ‘good’ officers, dare call out the violence by their affiliates

    a gang is a gang, no matter the costume

    Reply

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