How the BPD fails to oversee problem officers
On November 10, 2022, the Berkeley Police Department’s Bike Team was implicated by a former member of the team in a pattern of bias-related misconduct. The whistleblower revealed multiple text messages within the team that exhibited racism, anti-homeless threats, arrest quotas and manipulation of overtime.
These texts were disturbing to the city council, and helped to derail the confirmation of Interim Chief Jen Louis as permanent police chief. It has now been confirmed by the police chief that the Bike Team continues to function nearly four months after the scandal broke, with most of the same members still actively serving on the team.
When the city council put the Interim Chief’s nomination on hold, on November 15, two parallel investigations of these allegations were begun. The City Attorney’s office is overseeing an independent investigation of the Bike Team allegations, conducted by the San Francisco legal firm Swanson and McNamara. At the same time, the Police Accountability Board voted to launch its own investigation to be conducted by the Office of the Director of Public Accountability, Mr. Hansel Aguilar.
City leaders have been tight-lipped about the status of the Bike Team beyond confirming that it is still in operation. It is unknown whether the BPD has been able to confirm the whistleblower’s allegations, whether any members beyond the unit’s leader were disciplined, or whether the alleged improper activities such as arrest quotas continue.
A number of Berkeley community organizations wrote to the city council on February 1, 2023, urging that the governing body fully address the unfolding scandals besetting the police department.
See the full letter at www.bit.ly/BikeTeamLetter. Their letter stated:
It must be made a high priority for you to ensure that the reported practices of arrest quotas, overtime abuse, abuse of homeless persons and anti-Black racism do not continue even in the sergeant’s absence.
If other squad members are suspected of inappropriate treatment of Berkeley civilians, they should not be in a position to compound the problem by remaining in the same role, nor for that matter, dealing with the public.
Finally, the Downtown Task Force / Bike Detail itself must be either dismantled or completely reformed. The allegations of criminal misconduct against the above referenced social groups render the squad incapable of fairly enforcing the law with respect to the unhoused and the Black community they are supposed to protect and serve.
Could the Bike Team Scandal Have Been Prevented?
As the two investigations got under way, it was apparent to observers that a pattern of alleged biased policing and illegal procedures in the BPD dated back years.
A Berkeley Speaks investigation has shown that red flags were raised at least as early as 2015 about biased policing in Berkeley. That is when the BPD began posting information about civilian encounters online, revealing stark disparities in police stops, searches, and use of force. The city government’s wheels turned slowly, but in early 2018 the City Council directed the City Manager to create an action plan to eliminate racial disparities.
However, to this day the city administration has not implemented the central components of the action plan. Some say the Bike Team texting scandal could well have been prevented if the “Fair and Impartial Policing” action plan had been fully implemented.
Let’s look at some of the key components of the plan.
Early Intervention: The Fair and Impartial program, known as F&I, was mandated by the city council in February 2021. At the core of the F&I program is the Early Intervention System, or EIS, called Early Warning System (EWS) by the BPD. This goal of the program, which has worked successfully in Oakland, is to identify individual officers and potentially departmental teams or units that may be contributing to racially disparate policing, to enable management to address the causes of the biased behavior.
The police department has modified its Early Warning System (EWS) policy 1041 to include “irregular demographic stop data” to the types of employee behavior that is subject to review.
For the EIS/EWS program to work successfully, the police department leadership needs to take a broad and thoughtful approach. While the starting point was racial disparities in stops and searches, the concern ran deeper than just a statistical anomaly, or even the treatment of automobile drivers. The numbers pointed to a need for an examination of officers’ approach to policing people of color.
California Attorney General Rob Bonta has recently called for strengthened oversight of policing at all levels of governments.
Our investigation shows that the Police Accountability Board does not yet have full insight into the role and the functioning of the Early Warning System. It is possible for civilian oversight to engage with the police department on policy and process questions without exposing protected information on individual employees.
Pretext Stops: A second important initiative of the city council’s Fair and Impartial Policing mandate was to direct the police to stop pulling cars over for minor issues unrelated to safety. National studies have shown that police stops often run the risk of turning into a negative, even dangerous encounter, and this is especially true when drivers of color are stopped. The tragic case of Tyre Nichols, who died at the hands of Memphis police in January 2023, underscores the risk of such encounters. In light of this history, the council decided that officers should “focus the basis for traffic stops on safety” and “minimize or de-emphasize as a lowest priority stops for low-level offenses” such as expired tags or a non-working tail light.
Police officers often use a minor infraction as a “pretext” to justify a pullover of a car, or a search, in the expectation of finding evidence of a more serious offense. Pretextual stops greatly increase the risk of racial profiling. This risk can come from unconscious (“implicit”) officer bias or even conscious bias. There is also a built-in poverty bias to these stops, as low-income drivers may find it more difficult to afford keeping cars maintained.
It is important to understand the reasons why officers pull a person over. Under the Fourth Amendment, police need at least reasonable suspicion that a person has committed a crime in order to even temporarily “detain” them. For a search or an arrest, the standard is even higher probable cause to believe the person has committed a crime.
If any other factor is the primary reason for a non-consensual stop, it becomes an illegal detention, a violation of the civilian’s constitutional rights. One example of such a violation is using a pretext for a stop, or a search, if the motive is racial profiling. Another example is arrest quotas, which are illegal under California law. Requiring cops to make a certain number of arrests, rewarding them for doing so, or punishing them for not doing so is an encouragement to make bad arrests that are not backed up by probable cause. That is one reason that the Bike Team texts depict unconstitutional behavior.
In a separate action also related to reducing police stops of people of color, the city council decided shortly after the George Floyd killing in 2020 to create a non-police Berkeley Department of Transportation, or BerkDOT. When it is established, the new department would handle many interactions with drivers when crime and violence are not at issue.
In Berkeley, as in other cities including San Francisco, the local government is working out what types of police stops should be eliminated. Berkeley’s city manager established a traffic safety working group composed of ten police officers, then added one transportation manager after advocates protested the working group’s insular makeup. The group has proposed a three-pronged model, including the primary collision factors, “calls of community concern,” and a third bucket of other, non-primary collision factors called “Community Caretaking” that is loosely defined to include issues such as seatbelt violations, distracted driving, and DUI, or others. See the new policy at http://www.bit.ly/BPDStopsPolicy2022.
Berkeley’s new rules went into effect in 2021 and 2022, so a preliminary evaluation is now possible. Every police stop is listed online along with multiple details, including the reason that prompted the stop. A Berkeley Speaks review of the data reveals an outcome that runs counter to the city council’s intention to reduce stops for low-level offenses:
In the stops listed for the period from July through December 2022, numerous stops show the main reason for stopping as either registration issues, or equipment violations such as missing lights. Initial reviews show as many as 13% of auto stops may be for issues that are neither primary collision factors nor community calls for service.
According to Liza Lutzker, a UC Berkeley public health researcher and safe streets advocate with Walk Bike Berkeley, the city’s Vision Zero program has already have identified the small number of traffic violations that are responsible for the vast majority of fatal and severe collisions in this city. “By continuing to perform traffic stops for violations outside of these identified safety issues, we are both failing to make safety our highest priority and continuing to allow too much discretion in who the police detain for a traffic stop.”
Elite/Special Units: Just two months after the alleged misconduct of Berkeley’s Bike Team unit went public, the police killing of Tyre Nichols by members of the Memphis Police Department’s “SCORPION” unit shocked the whole country.
Mr. Nichols’ death underscored the risks posed by “elite” police units when they operate without rigorous oversight from within the department and from civilians.
It brought to light allegations of previous misconduct by the same unit. Community members stated that the MPD did not respond to those prior complaints, and expressed that this failure of accountability led directly to the tragic killing of Tyre Nichols.
The conversations we are having about reimagining and fair and impartial policing focus mostly on racial disparities in stops, the inappropriate reliance on police to address issues with the mentally ill and the unhoused, and the financial waste from the over-reliance on expensive police force. Occasionally, there are more extreme outcomes. While it has been years since there was a death in custody in Berkeley, there have been multiple examples of excessive force against African Americans.
This raises the question: to what extent do special, elite units foster abuses, such as excessive force, racial discrimination or profiling, or bending the rules to promote arrest quotas or manipulation of overtime?
Radley Balko, author of “Rise of the Warrior Cop: The Militarization of America’s Police Forces”, wrote in the New York Times that:
“Stephen Downing, a retired Los Angeles deputy police chief and former SWAT officer, once told me, ‘The guys who really want to be on the SWAT team are the last people you should be putting on the SWAT team.’ These units tend to attract aggressive, rules-skirting officers who then bring in like-minded colleagues to join them.”
In the Memphis case, the Tyre Nichols family attorney revealed that multiple community members had previously complained to MPD’s Internal Affairs Bureau of abuse by SCORPION members, without receiving any response from IAB.
The Bike Team is not a SWAT team, but it has functioned to crack down on unhoused persons. It encouraged stereotyped attitudes and violent fantasies toward the homeless and African Americans, and rewarded those who excelled in the official goal of maximizing arrests. The clubby internal nature of special units can reinforce negative behavior of its members, and as Balko wrote, “shatter the community trust that police forces require to keep people safe.”
But at least as great a concern is that the teams are often protected by higher-ups as long as they fulfill a priority goal of the department. The leaked texts indicate that the former sergeant of the Bike Force and police association president was given support from a police commander for the arrest quotas and overtime abuse.
Four months ago the Berkeley whistleblower warned the community of the dangerous behavior that his former team engaged in. As the Memphis PD failed to take action when warned by their community members about abusive behavior by SCORPION members, the city administration has kept the Bike Team active and basically intact. This unresolved situation has led some community members to fear that if police do not heed the warnings, this time coming from within their own department, the next we hear of the team may be news of a tragedy.