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BART Releases Public Report from Meyers Nave Investigation of New Year's Day Murder, 8/18/09

by dave id
The long-overdue investigative report from Meyers Nave was finally turned over to BART last week and in turn a public version of the report was made available late this afternoon. The public report does not assign personal responsibility to any of the officers on the Fruitvale BART platform when Oscar Grant III was murdered. Nor does it recommend any corrective or disciplinary actions for specific BART police officers or supervisors in the chain of command. It says things like "the laser on the Tasers was often pointed in unsafe directions" without noting which officers did so (Tony Pirone and Marysol Domenici) and without recommending disciplinary action for the culprits. "Personnel matters" have not been released ostensibly due to the California Police Bill of Rights. Presumably, such info is contained in the full report released internally to BART. The public report, though, entitled "Review of BART PD Policies, Practices and Procedures," is highly critical of just about everything BART police and commanders did on January 1st and in the ensuing aftermath of the murder, as well as the culture of unaccountability within the BART Police Department. Overall, the report confirms much of which community activists were already aware -- that in too many ways the BART police have been an unprofessional and out of control police force desperately lacking proper oversight and accountability to the public.
It is no wonder that the BART Board of Directors would rush to finalize their police oversight draft and vote unanimously to approve it in the same week that this report hit their desks. [Actually, it appears that they officially approved the plan before the draft was actually finalized.]

Likewise, the sudden announcement of the resignation of BART Police Chief Gary Gee this past weekend is hardly surprising, even after he had resisted months of community demands that he step down for his incompetent and corrupt response to the murder of Oscar Grant. For Chief Gee, it was finally the weight of the Meyers Nave criticism and the unanimous Board vote for a new level of police oversight, both coming last week -- and perhaps a cordial (or stern) push from the BART Board -- that proved too much to bare. Rather than being fired as he should have been, BART is allowing Gary Gee to "retire" and just walk away before the end of this year.

The public version of the Meyers Nave report clearly refutes statements made by Gary Gee in a January 12th press conference at the conclusion of his whitewash internal affairs investigation. With General Manager Dorothy Dugger and BART spokesperson Linton Johnson at his side, Chief Gee unequivocally declared at the time that his officers had followed BART police protocol and acted professionally, yet Meyers Nave now completely contradicts Gee and starkly states that "officers did not follow recommended procedures" on the Fruitvale platform, as anyone who has been following the case closely already knew. The summary of the report describes the tactics of officers on the scene as "seriously deficient."

In a testiment to Gee's laziness, or laisse-faire attitude toward improving his police force, Meyers Nave points out that the "BART Policy manual [has] not been updated in some areas since the 1970s, 1980s or 1990s." Remember that BART police murdered another unarmed African American man since Gee has been Chief, Bruce Edward Seward in 2001.

"[L]apses in tactical communication and leadership" are cited as a critical misstep on the morning of the murder of Oscar Grant. Why supervisors were unavailable on a such a big night for BART as New Year's Eve is not addressed in the report, only that their lack of supervision was a contributing factor to the escalation of events that led to the murder of Oscar Grant. Meyers Nave writes: "In this case, an experienced supervisor would have proven invaluable in controlling the scene, managing resources, directing use of force actions by officers, etc."

Another slap at Gary Gee, and his BART police internal affairs unit, is when the report declares that BART needs a "more thorough investigation of any incident in which force is used." Calling out the unacceptable behavior of officers on the platform, who apparently felt they could be as racist and violent as they pleased without accountability, Meyers Nave writes: "If all BART PD officers knew that BART PD would relentlessly investigate use of force incidents, including pulling of video and canvassing the scene, it is doubtful that BART PD officers would use force when it was not reasonable to so do." It almost reads as facetious snark when Meyers Nave, discussing internal investigations, dryly reports that "it is unknown when the last UNjustifiable use of force occurred within BART PD." [Emphasis added.]

Meyers Nave cites inadequate reporting from BART police on use of force incidents, hinting that there are major issues with the reports BART officers filed after Oscar Grant was shot. Judging by their dishonest testimony during Johanne's Mehserle's preliminary hearing, and the general history of police in America lying after shooting unarmed people of color, it is not hard to imagine what some of the problems are in the incident reports. Meyers Nave frankly declares that "in the future, arrest reports should be more closely scrutinized." In case anyone reading the report still doesn't get it, the report adds that "Use of force must be investigated more thoroughly" by supervisors.

As for the detainment of Oscar Grant's friends after he was murdered, the report cites numerous problems there as well. His friends were all inappropriately handcuffed for up to six hours while they were being detained by BART police, even though none of them were actually under arrest. Meyers Nave points out that it remains "unclear if the right persons were detained" that night in the first place.

The report echoes what community activists have been demanding since day one: "Enhance[d] transparency and accountability" are sorely needed in the BART Police Department. Perhaps the new police oversight proposal the Board has approved will help in this area, if the state legislature can overcome statewide police resistance and pass a strong oversight model for BART. Meyers Nave notes that "the public will have a greater sense of comfort in the BART PD" should the agency become subject to regular audits of its police force.

The public report, not surprisingly, makes no mention of inaccurate or offensive statements made by BART itself since the murder. BART, as a public agency, has yet to make amends for statements it has made that have distressed Oscar Grant's family and the community, such as in April when they virtually claimed it was Oscar Grant's fault that he was shot in the back. In a response to a civil suit brought against the public agency by the family of Oscar Grant, BART claimed that the use of force by BART police on the Fruitvale platform was appropriate and that it prevented Oscar Grant from physically beating the well-armed police officers.

Now that Meyers Nave has released their report, it remains to be seen what disciplinary actions will be taken by BART against the officers involved on January 1st, all of whom have been on paid vacation (i.e. paid leave) for the last seven months. Until the new police oversight proposal is possibly approved by the state legislature, against the will of cops statewide, then disciplinary authority for police officers continues to remain in the hands of Chief Gee, whose incompetent and non-credible internal affairs investigation of the matter motivated BART to approve hiring Meyers Nave in the first place. General Manager Dorothy Dugger, who herself has not seen fit to demand accountability for the outrageous behavior of BART police on New Year's Day, is not likely to fire Gee for inaction since he has already been given the easy out of retirement. Will the overdue firing or disciplining of corrupt police officers be one of Gary Gee's last acts as Chief? At this point, that remains unknown to the public.

Public pressure likely will continue to be required to push the BART Board to hold Dorothy Dugger and the BART police accountable for their actions related to the murder of Oscar Grant, including officers on the platform and their supervisors. Meyers Nave clearly noted that BART should require "more thorough investigation of any incident in which force is used" which would imply honestly calling out police misconduct where it it is found and firmly holding those responsible accountable. To date, not a single officer has been held to account by BART. Now that BART has been relieved of conducting a thorough investigation itself, having left it to Meyers Nave to do for them for $250,000, it is high time that BART begin to rid itself of the most obvious bad actors in its midst and recommend criminal charges where warranted for those who assaulted Oscar Grant and his friends on January 1st such as BART police officer Tony Pirone and Marysol Domenici. Bad actors at BART include not just the officers on the Fruitvale platform but General Manager Dorothy Dugger who, just like Gary Gee, chose to be an apologist for the disturbing actions of officers ultimately under her supervision. Finally, a full accounting of the actual events of January 1st must be made public. Such an account should include events on the platform as well as communications between officers and supervisors that night, and communications in the aftermath between supervisors and Chief Gee and those between Gee and Dugger. The Meyers Nave report appears to be a step in the right direction, but it does not yet represent having reached the ultimate goals of full transparency and accountability.
(2-page PDF)

BART receives final reports on New Years Day shooting

BART has received the two reports from the law firm it hired to conduct an independent internal affairs investigation of the BART Police officers involved in the New Year's Day officer-involved shooting at Fruitvale Station. The first report contains extensive information regarding personnel matters, which are confidential and cannot be released under state law. However, the firm BART hired, Meyers Nave, has also completed a public report, which is limited to those aspects of the investigation that are not confidential and not protected from disclosure by state law.

Typically, internal affairs investigations are handled by the internal affairs divisions of police departments. However, to ensure objectivity and complete independence, the BART Board of Directors, in an unprecedented move, chose to have an external party do this review. BART retained Meyers Nave, which has extensive experience in investigating police conduct, to independently investigate whether the actions of officers on the platform violated BART Police policies and procedures and to make recommendations in response to any findings. BART also asked the firm to make recommendations in response to any findings regarding department policies, procedures or practices in a report that could be released publicly. That report is being released today.

"This report is one of the important results of the hard work done by the BART Police Department Review Committee that I appointed in early January," BART Board President Thomas Blalock said. "I appreciate their efforts, which I believe are helping to open a new chapter in our continuing efforts to improve police services at BART."

'We view this report as a very valuable tool that will help us to improve BART's efforts to keep our system safe for all riders while helping to prevent such incidents in the future," BART Board Member Carole Ward Allen, who chairs the Board of Directors BART Police Department Review Committee said. "Meyers Nave has identified a number of tactical deficiencies as well as areas that need improvement and we intend to see that these issues are addressed promptly."

"These two reports are thorough, comprehensive and include serious and substantive recommendations for changes needed to improve policing at BART," BART General Manager Dorothy Dugger said. "We are reviewing the reports and their recommendations carefully and are moving forward through our internal process to consider and act on the recommendations as swiftly as possible. In fact, changes in some key areas are already underway."

"This was a very complex investigation. Led by chief investigator Kim Colwell, our team conducted exhaustive interviews with dozens of witnesses and reviewed thousands of pages of transcripts of witness testimony," Jayne Williams, managing partner of Meyers Nave said. "Our investigation results and recommendations are detailed and systematic, and based on our firm's 20 year history of producing objective reports that have led to the discipline of officers, if appropriate, as well as changes in the policies and procedures of law enforcement agencies."


The public report on BART's police policies, practices and procedures identified a number of areas where BART can improve its response to future incidents and also strengthen its own investigations and reporting of use-of-force incidents. The report's recommendations include:

* Updating the BART policy manual
* Reinforcing tactical concepts
* Improving communications and leadership during incidents
* Instituting more strenuous use-of-force reporting requirements and investigations
* Enhancing transparency into the process
* Training officers on updated policies
* Additional Taser training for officers


The General Manager has directed the Chief of Police to develop an action plan within the next 30 days responding to the Meyers Nave recommendations. The BART Board Police Department Review Committee will review and report monthly on progress in implementing these recommendations. Prior to receipt of the Meyers Nave report, the BART Police Department had initiated changes in three important areas identified in the Meyers Nave recommendation. They include:


* All use-of-force incidents will now be reported and investigated instead of just significant use-of-force incidents
* Use-of-force reports are forwarded through the chain of command and filed with Internal Affairs
* A new review panel has been established to review all uses-of-force and report recommendations to the Chief of Police


* The BART Police Department training plan and budget will provide 40 hours of training per year for officers (Police Officers Standards and Training requires a minimum of 24 hours every two years)
* Training curriculum includes: cultural diversity, racial profiling, tactical and inter-personal communication, policy manual review, firearms/range/use of force options/policy review, defensive tactics/arrest control, taser recertification, among other topics
* These additional training hours will facilitate the delivery of additional training recommended in the report


* The BART Police Department is in the process of updating its policy manual using the services of Lexipol, a nationally recognized firm which incorporates the most current legal and regulatory requirements and standards, as well as best practices of law enforcement, into model policies and procedures for use by law enforcement agencies around the country
* The first group of 8 critical policies has been revised and will be issued within the next month. All BART police officers will receive training within the next 30-days on these first 8 revised policies as part of this year's expanded training program


Review of BART PD Policies, Practices and Procedures

Key Findings & Recommendations

• Findings: The BART Policy manual had not been updated in some areas since the 1970s, 1980s or 1990s.

Recommendations: The manual as a whole be completely reviewed; update all policies on at least an annual basis; BART officers receive regular training on updated policies.

• Findings: Shortcomings in tactics used by officers responding to the Fruitvale incident; officers did not follow recommended procedures; officers failed to work as a team reducing their effectiveness by working independently while also increasing their chances of being assaulted; lapses in tactical communication and leadership.

- Develop and publish a policy-level document outlining that supervisors and senior officers assert command and control over a situation as a primary responsibility.
- Provide additional training in enhanced tactics and team strategy to deal with hostile incidents.
- Provide additional Taser training; require officers to wear Taser on opposite side of body from firearm or position Taser so it must be drawn with opposite hand as firearm.
- Take an integrated tactical approach to potentially hostile incidents; officers should immediately request back-up when necessary; one officer should assume control and direct other officers in their actions to control situations.
- Review detention policies to ensure a more expedient turn-around of detainees and better conditions for physical detention so detainees that are not under arrest are not held in hand-cuffs for long periods of time.

• Findings: Reporting of use-of-force incidents is substandard.

- Require reporting and more thorough investigation of any incident in which force is used, not just significant uses of force.

• Findings: BART has had very few deadly force incidents in its history; and some decisions made following the Fruitvale incident could be improved in regards to debriefing and interviewing officers at the scene.

- Require a supervisor to respond and conduct an immediate on-scene investigation and canvass scene for witnesses and evidence.
- Tactics used during every use-of-force incident should be reviewed and commented upon.
- In every use-of-force incident, officers should be debriefed, and in cases where officers were deficient, BART should make a decision to remediate, retain or discharge the officers in question.

• Findings: Enhance transparency and accountability.


- Consider retaining a reputable auditing or oversight firm with experience in police matters to conduct on-going meaningful audits and evaluations of the BART Police Department.

• Findings: Critical reporting mechanisms are deficient.

- Overhaul nearly all critical reporting mechanisms.
- Develop policies using best practices from other agencies to enhance BART’s risk management practices.
- Institute Chief-level review of all use-of-force reports and personnel complaints.
- Chief of Police should review and approve all use-of-force incident reports, which should be used as a means to continually improve performance of the Department.

(9-page PDF)

Besides the BART matter at hand, this document provides a look into what are considered proper police tactics, training, communications, and supervision, with nods to the importance of public credibility.
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