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NOBLE Presents Disturbing Report on BART Police Department, 10/1/09: audio and full report
Exactly nine months to the day after the BART police murder of Oscar Grant III, the National Organization of Black Law Enforcement Executives (NOBLE) presented a draft version of its "top to bottom" review of the BART police department to the Board of Directors in a Special Meeting on October 1st. NOBLE was hired by BART in April to conduct the review at a cost of $128,000. The entire 303-page draft version of the "BART Police Department Management Audit" is attached below. The final version is expected in two to three weeks. Pictured here are the NOBLE representatives who presented the review to the BART Board of Directors: Patrick Oliver, former Chief of Police for four different departments in Ohio; Lou Dekmar, Chief of Police in LaGrange, Georgia; and Wanda Dunham, Chief of Police for the Metropolitan Atlanta Rapid Transit Authority (MARTA).
While the public version of the Meyers Nave report released in August largely focused on the many failures of January 1st -- when BART officers detained and abused several young men and Johannes Mehserle shot Oscar Grant in the back -- the NOBLE report thoroughly examines BART police as a whole from the perspective of modern standards of policing.
Not surprising to community activists who have long claimed that BART police are an unprofessional and out of control danger to communities of color, the NOBLE report depicts the BART Police Department as deficient in every way imaginable. From a lack of training to issues with recruiting and promotions, from internal affairs to community relations, from use of force to discipline of officers, from racial profiling to civilian oversight, from policy manuals to plans for catastrophic events, the report identifies problems everywhere. The report notes that BART police's headquarters at the Lake Merritt station is "embarrassing" and "disgusting", which aptly could be taken as a metaphor for the department itself.
In an attempt to compensate for its many failures, and pretend that it has done more than it has to rectify the situation over the last nine months, BART officials such as Director Carole Ward Allen and General Manager Dorothy Dugger trumpeted during the course of the Special Board Meeting that the agency has recently instituted eight updates to its police department manual, including changing their use of force polices so that all use of force incidents will soon be reported, not just "major" ones as in the past, and that they have increased police training hours and added topics such as diversity and racial profiling to the course work.
The elephant in the board room, of course, is that BART continues to refuse to hold even a single person accountable for the serious misconduct of their officers on New Year's Day or for the cover-up by supervisors afterwards. Johannes Mehserle was never interviewed by BART about the shooting and was allowed to resign of his own accord. On Chief Gary Gee's watch, BART police have murdered two unarmed African American men in the East Bay -- Bruce Edward Seward in 2001 and Oscar Grant in 2009. Yet as 2010 approaches he has taken no notable action to reign in his out of control police force. And still, the BART Board and Dorothy Dugger are allowing him to retire on his own timetable. Gee is not expected to be out before the end of the year, and since he stated that he is in opposition to the Meyers Nave report, there is now little reason to expect that before he leaves he will hold anyone accountable or take any serious steps toward implementing NOBLE recommendations. GM Dorothy Dugger has played apologist for Chief Gee and his rogue BART police department all along -- and despite that at least one Board member called for her to be fired as far back as February, she has yet to be held accountable for the many failures that have happened under her supervision. Dugger and Gee are the only ones at BART who can fire police, and the BART Board has failed to hold them accountable, so officers Tony Pirone and Marysol Domenici, who both abused Oscar Grant and his friends on the Fruitvale station platform, continue to enjoy paid leave while BART looks the other way. The other four officers on the platform with Mehserle, Pirone, and Domenici were reinstated in September and are now back on the force. And besides the general dereliction of duty mentioned in the public version of the Meyers Nave report, BART supervisors ranking in between the officers on the platform and Chief Gee, including those in Internal Affairs, have not been called out regarding failures or cover-up attempts related to the murder of Oscar Grant. At the Special Meeting, though, it was revealed that several BART police supervisors will also be retiring soon. (Were they named in the non-public version of the Meyers Nave report which apparently recommended the firing of Tony Pirone and Marysol Domenici?) In short, the BART Board has lacked the moral courage to hold a single person accountable no matter how obvious the evidence against them. It appears that some of the culprits are being allowed to slither away on their own.
Nevertheless, much can be gleaned from NOBLE's lengthy report, either directly or by reading between the lines, regarding reasons as to why BART police would feel free to act as badly as they were caught on camera behaving on January 1st. For instance, one BART officer is quoted as saying, "Discipline here is you either get fired or nothing gets done... it's worthless when trying to correct behavior." Discipline was "weak to poor" before Oscar Grant was shot, officers reported to NOBLE, and it has only "tightened-up some" since. (Thanks, Chief Gee.) One supervisor told NOBLE that it was common for officers, when assigned a task they don't want to do, to simply declare "I'm sick" and then depart work for the day. Another reported that the attitude most officers have toward discipline is: "Write me up... nothing will happen and it will be out of my file in nine months." As for reading between the lines, NOBLE's focus on racial profiling training and record-keeping, and likewise BART's Board members trumpeting that this most basic of instruction will now be a part of police training, indirectly are admissions that the racism that runs through the department needs to be addressed. Regarding the escalation of officer misconduct, NOBLE writes: "minor policy violations are frequently overlooked and 'don't get dealt with' and those violations develop into major performance and behavior issues." Combine that with the strong NOBLE emphasis on establishing a proper promotions policy for BART police, and it appears that some officers have been sent up the ranks despite known severe behavioral issues. With problem officers and supervisors running amok and covering for each other, it is little wonder when NOBLE points out that the 13 citizen complaints against BART police on file for 2008 seems unusually low compared with the agency's number of sworn officers and the number of BART patrons. With its lack of structure and predictability for officers, it is also little wonder that morale is not good amongst BART police. The problems go on and on, and on and on, for most of the 303 pages in the full report.
Oddly, knowing what they know now about BART's deeply inept, reckless, and corrupt police force, the NOBLE report attempts to justify the continued existence of the BART police department, albeit on flimsy grounds that ignore the fact that every supposed reason listed why BART needs its own force could easily be accomplished by other departments in the area BART serves.
After the NOBLE representatives walked BART directors through the "executive summary" of their report at the meeting, elaborating on the recommendations point by point, the few members of the community who were aware of the meeting and chose to attend were allowed to comment. All of the speakers expressed great skepticism that BART will implement a fraction of the recommendations. It was pointed out that the online survey NOBLE conducted which came up with some positive results for public opinion of BART was not a scientific survey so the data presented is relatively meaningless. As a sidenote, NOBLE appears to have ignored in its report the two public forums it held in June, purportedly to gather community feedback for the report.
Several BART Directors spoke of creating action plans and matrices to track progress made toward adoption or rejection of NOBLE's recommendations. The Board agreed that the new mission of their Police Department Review Committee will be to oversee implementation of the NOBLE recommendations that they choose to adopt. The BART Police Department Review Committee will meet next at 9am on Monday, October 5th, in the BART Board Room on the third floor at 344 20th St., Oakland. The meeting is semi-public ("semi" because it is open but they schedule it during business hours when most people work).
BART Police Oversight Plan Dead
BART Releases Public Report from Meyers Nave Investigation of New Year's Day Murder, 8/18/09
NOBLE requesting public take survey on performance of BART police
NOBLE Improves Their People Skills for 2nd Community Forum on BART Police, Oakland, 6/23/09: audio
Disappointing NOBLE Community Forum for BART Police Review, San Francisco, 6/22/09: audio
NOBLE Honors Rashidah Grinage and PUEBLO at Awards Dinner, Oakland, 4/24/09: audio
After opening remarks and NOBLE's presentation of the executive summary, public comment begins at 1:11:30. Community speakers include Ramona Tascoe, Minister Keith Muhammad, and Jack Bryson. Questions and comments from the Board of Directors and General Manager Dorothy Dugger begin at 1:39:00.
BART Management Audit Executive Summary
BART Management Audit Executive Summary of Major Recommendations
The following are some general conclusions that the NOBLE Study Team of consultants has drawn from its work on the BART Police Management Audit review.
1. ORGANIZATIONAL STATEMENTS
2. POLICY & PROCEDURE MANUAL
4. EMPLOY PERFORMANCE STANDARDS
5. PATROL PRIORITIES
6. PERSONNEL SELECTION
7. COMMUNITY INVOLVEMENT
8. CRIME CONTROL STRATEGY
9. FACILITIES MAINTENANCE
10. JOB SATISFACTION
11. SHOULD BART HAVE A POLICE DEPARTMENT?
a. Better responsiveness to calls for service;
b. Higher degree of safety to all patrons;
c. Understanding the goals of administration;
d. Cohesiveness of response to client needs;
e. Developing and implementing counter-terrorism strategies;
f. Intelligence information gathering and sharing;
g. Officer presence on the trains;
h. Establishing police-community relations;
i. The level of community crime;
j. The volume of commuter traffic;
k. Fare evasion and cashier stations; and
l. Parking lot safety.
12. PUBLIC INFORMATION OFFICER
14. INTERNATIONAL LAW ENFORCEMENT ACCREDITATION
15. DEPUTY CHIEFS JOB
16. ALL HAZARD PLAN
17. RACIAL PROFILING
18. USE OF FORCE
The agency’s members should receive annual use of deadly force training and biennial less-lethal force training. Training should include the legal justification for the use of force, with a provision for tracking and mandating attendance for those that do not attend regularly scheduled training. The removal of personnel from any position requiring a firearm should occur when they fail to attend and achieve firearms qualification, until the member satisfies the Agency qualification requirements. There also should be a provision for tracking and mandating attendance at make-up training for those that do not attend regularly scheduled training. The agency should develop a written use of force testing instrument.
The agency should develop a reporting system that ensures all incidents involving the application of force, including leg sweeps, elbow jabs, punches, kicks or other weaponless force, are well documented and the salient facts surrounding the event noted. Serious consideration should be given to developing a separate use of force report that is completed when an incident involves the application of force; training in the proper documentation of use of force events is paramount.
A part of the use of force policy should include a response to the scene of any use of force incident by a supervisor requiring that the supervisor to conduct a documented review of the incident.
All officers and supervisory personnel should be trained on the importance of immediately notifying the communications center when a use of force incident occurs and the necessity of identifying and securing witnesses.
The process should include a charge requiring Internal Affairs to conduct an independent review of all use of force reports and to make a separate finding in addition to tracking and recording use of force events. Additionally, the Training function should receive a copy of reviews or analysis so they are in a position to identify training needs or policy issues.
The agency should consider modifying its policy to provide for an “outside” agency to conduct the criminal investigation anytime an application of force by an officer results in death or serious bodily injury.
The agency should conduct an annual analysis of all use of force events. A review of incidents of force may reveal patterns or trends that could indicate training needs, equipment upgrades, and/or policy modifications.
19. CIVILIAN OVERSIGHT
a. All appeals should stop at the General Manager. The decision at that level is final. The Board of Directors is a policy making body of elected officials and should avoid issues of management oversight other than for the General Manager.
b. The process of establishing an independent Citizen Oversight System for the BART Police Department should be developed at a pace sufficient for proper planning and should not be established solely because of the urgent and vocal demands of the community. The community may not like the end results because the system may be flawed as a result of establishing the policies, procedures and system too rapidly. The System must also be properly subsidized and carefully thought out and planned. The community should also be provided with monthly updates on the progress of the Civilian Oversight System.
c. The Independent Police Auditor, members of the Citizen Board or Investigators should not be police officers or former law enforcement officers. They also should not be investigators. When police officers are part of Citizen Boards they can inadvertently function as or be perceived as a “Police Commission or Panel of Review”. In fact, since recommendations shall be made about BART Police Officers’ behavior and conduct, respected psychologists and sociologists might be considered to be members of the Citizen Board. For example, psychologists are trained to perform psychological research, testing and therapy. They can recognize aggressive, “hyper-vigilant” police officers. Sociologists study human social behavior. This shall be helpful when reviewing complex cases involving multiple complainants, witnesses and police officers.
d. The BART Board of Directors should not appoint the Citizen Board directly. The Citizen Board should be free of politics and even the perception that they are influenced by politicians. If Board of Directors are politicians (or associated with politicians), appointment of Citizen Board members by politicians may appear impartial. Citizen Board members can be interviewed and hired by NACOLE, the California Human Relations Commission or another independent organization that Citizen Board members and Investigators should be established. The BART Board of Directors should select Citizen Board members from a list provided by NACOLE.
e. There must be a clear, dedicated funding source for the Citizen Oversight System. The source of funding should be determined now. A budget must also be established as well as an organizational structure.
f. Regular and consistent training must be provided to Citizen Board members. This training shall include familiarization with POST, the BART system, Operational Directives (especially Positive Discipline Policy or Disciplinary Code), Contract Agreements, Grievance Procedures, Due Process Policies and Internal Affairs policies and procedures.
g. Citizen Board members as well as the Auditor should have a relationship with local prosecutors (District Attorney) along with the Offices of the State Attorney General and the United States Attorney. Complainants allegations should be forwarded to the appropriate agency for action.
h. Recommendations for Corrective Action: Independent investigative findings made by the Office of the Police Auditor shall include recommendations for corrective action, up to and including termination where warranted and shall include prior complaints and their disposition. Discipline that is recommended shall be consistent with past practice and uniformly applied. Any discipline action initiated by the Bart Police Department will comply with the Positive Discipline System guidelines (e.g. Operational Directive #77), other appropriate guidelines and any labor agreements in effect. Every officer is entitled to Due Process. When the evidence does not support the allegations of misconduct, the Auditor shall recommend to the Citizen Board that the matter be dismissed. The Citizen Board shall have a simple vote to determine if the matter shall be dismissed. This process must be appropriately documented in writing and endorsed by the Auditor and each member of the Citizen Board. Proper notification must be made in writing to the complainant and the BART police officer regarding the disposition of the investigation.
If the complainant wishes to withdraw a complaint, the Auditor shall forward documentation to the Citizen Board that is endorsed by the complainant. These procedures must be clearly communicated to all parties including the community.
i. Time limits should be indicated throughout the policy. For example, “In a confidential personnel meeting, the Auditor shall submit his/her investigative findings and recommendations in writing to the Citizen Board for review within 60 calendar days. Should the Citizen Board agree with the findings and recommendations, the report will be submitted to the Chief of Police for appropriate action within 10 calendar days. The Chief of Police shall implement the recommended action in accordance with the Positive Discipline guidelines, absent appeal.”
20. INTERNAL AFFAIRS
21. SWAT & TACTICAL TEAM
While the unit seems to have its primary value and on-going function of the execution of high-risk warrants, its overall benefit needs to be evaluated against cost, value, and liability. Since the entire rail service area is contiguous with other jurisdictions with full service SWAT and hostage negotiation units, it might beneficial and cost effective to establish MOU’s with each respective jurisdiction for SWAT, and possibly, high risk warrant service. However, to have a SWAT team available across all the respective jurisdictions with a counter-terrorism focus also has value. In a post-9/11 society, transit systems which have always been a high value community asset, have a greater degree of vulnerability.
Our sense is that tactical units are more the norm for similarly situated departments and, with the elimination of the SWAT unit, more resources might be devoted to this functionality. We would think that more senior experienced officers be assigned this kind of duty. However, the threat of terrorism to a transit system increases the value of a transit police SWAT team. The agency should conduct its own analysis in this area to validate its decision.
22. EARLY INTERVENTION
a. Internal affairs case management software is available and should be employed to categorize investigations, officer behavior, discipline, developing trends and many others. In additional to serving as a repository for statistical data, periodic analysis can provide indicators that written policies may be deficient, deviant behavior may be prevalent, the number and kinds of disciplinary actions taken against an individual officer may be inordinate, or officers on the same shift or in the same unit may have developed a subculture contrary to the values of the department.
b. The purpose of an early warning and intervention system is to track indicators that will identify patterns of officer conduct that fall outside of the norm. The indicators may show positive performance by an officer or it may show unsatisfactory behavior.
c. This program will assist BART by identifying problem employees, identifying training needs, indicating the type of intervention required, and ultimately reducing misconduct.
The agency should adopt a more traditional police discipline system, and centralize the Employee Development Record [EDR] files. This would simplify discipline records review by supervisors, managers, and Internal Affairs. Numerous affordable computer software programs are available that can simplify this process.
Purging disciplinary matters in 90-days to a year or less does not provide for the proper and deliberate monitoring of problem employee behaviors or performance. The agency should consider significant modifications to the agency disciplinary system as the current disciplinary process does not provide for an effective Early Warning or Early Intervention program.
24. BART PD EMPLOYEE SURVEY [Respondents: 109]
a. The majority of employees indicated that their job motivation is low. [Question 1]
b. Effective communication needs to be established by management with line personnel.
c. The majority of employees desire increased involvement in decisions that affect them.
d. The majority of employees believe there is a greater need for appropriate job-related
e. The vast majority of employees believe that the organization should establish new
f. The majority of employees believe that the agency should develop and implement
g. The majority of employees believe that better equipment is needed. [Question 3 T]
h. The majority of employees believe that there should be improvement to the
i. The majority of employees believe that there is a need for a comprehensive and contemporary general orders manual. [Question 2 N]
j. The majority of employees believe that there is a need for increased supervision and accountability. [Question 3 L]
25. COMMUNITY SURVEY OF BART PD [Respondents: 1214]
a. Respondents to the survey most indicated they ride 5 days a week. [Question 3]
b. 48% of the respondents indicate they are satisfied with BART police services.
c. 59% of the respondent indicate that the relationship between BART police and the
d. BART patrons indicated that the police patrol priorities should be [Question 9]:
e. The majority of respondents [62%] indicate that police presence on the trains has
f. The majority of respondents [54%] indicated that police presence at BART stations has
g. The majority of respondents [71%] indicate that travel on a BART train is safe after
h. The majority of respondents [60%] indicate that they feel safe in a BART station after dark. [Question 18]
i. The majority of respondents [58%] indicate that they feel unsafe in a BART parking
j. The majority of respondents [59%] indicate that they have some or great confidence in
i. The majority of respondents would rate the overall performance of the BART PD as
Chapters: Introduction (p9), Culture (p35), Recruitment and Selection (p39), Training (p55), and Equipment (p86)
Chapters: Facilities (p116), Biased-Based Policing/Racial Profiling (p122), Internal Affairs (p142), Discipline (p165), Community Confidence (p171), Context Background (p182), Civilian Oversight (p184), Use of Force (p194), Management Control (p228), and Operations (p235)
Chapters: BART PD Employee Survey (p250) and Promotion (p291)
BART receives final report from NOBLE
The NOBLE Management Audit Final Report, received on March 25, 2010, includes recommendations that were based on a comprehensive assessment of BART Police Department policies and tactics from recruitment, hiring and training to use of force and investigatory practices. The BART Police Department began the process of implementing some of the recommended best practices when the draft report was received late last year and is in the process of developing an action plan that will be presented to the BART Police Department Review Committee in the coming months.