Berkeley officials voted early Friday morning to adopt an updated use-of-force policy that expands what types of force police officers track and report, and how they make this information public.
The new rules came about, in large part, through an intensive collaboration between Police Review Commission (PRC) members and BPD officers over the past month. Both sides were able to agree on the bulk of the policy, though several issues remained up for debate Thursday night. Before the final vote at 12:45 a.m., Councilmember Kate Harrison made some additional changes to reflect other concerns that came up throughout the lengthy meeting. The full ramifications of those changes were unknown Friday, and numerous city staffers said they were still trying to make sense of what had happened.
Officials in Berkeley have been asking for an update to the use-of-force policy since 2017. The old rules, General Order U-2, had not changed much since they were adopted in 2009.
In June, Harrison and her council colleagues directed the PRC and police to make those changes happen before council’s summer recess in August. The resulting document puts the sanctity of life as its first guiding principle and requires the reporting of many types of force BPD has not tracked before or made public. Under the new rules, police will produce an annual use-of-force report so officials and the public can review all the data.
The new policy also prohibits police from shooting at moving vehicles and codifies the de-escalation work officers regularly do, officials said. In addition, it defines the situations where deadly force can be used more narrowly than the old rules and requires officers to document anytime they unholster their weapons, if someone is around to see it, as a use of force. (A search of a vacant building by an officer with a drawn weapon would not require use-of-force documentation, officials said.)
Police chief asks for exceptions to the tear gas ban
Much of the extensive public comment Thursday night, however, focused on a new request from Berkeley Police Chief Andrew Greenwood to carve out several situations where police in Berkeley could use tear gas, which council banned June 9. Greenwood said those situations included to “protect the lives of people, protect people from serious bodily injury or to prevent the imminent criminal destruction of property, including the Martin Luther King Jr. Civic Center and the Ronald T. Tsukamoto Public Safety Building.”
Many members of the public said it would be absurd for council to walk back their full ban on tear gas so soon. They also said Greenwood’s requests had come too late and should not be considered on those grounds.
Greenwood submitted his amendments on Wednesday and they complied with all rules around open government, the city attorney told the City Council.
Ultimately, officials declined to consider most of Greenwood’s suggested amendments. They did agree in the end to send one piece of it — whether Berkeley’s Special Response Team (what other agencies call “SWAT”) can have the option to use tear gas when responding to a barricaded subject — to the PRC and council’s policy committee on public safety for further discussion.
“The preservation of that for the Special Response Team is of paramount importance,” Greenwood told officials.
He told them he was also concerned about what might happen now if there are large-scale demonstrations or incidents in Berkeley because Alameda County Sheriff Gregory Ahern and several other police agencies have said they will not provide mutual aid under the existing tear gas ban because they do not believe their officers would be able to adequately protect themselves.
Council members questioned whether it was even legal for Ahern to refuse to respond to Berkeley and asked the city attorney to research the matter and come back with more information.
Multiple public commenters said Greenwood’s requests revealed him to be out-of-touch with Berkeley. Harrison concurred.
“I’ve lost confidence in the chief,” she said.
Last week, Councilmember Cheryl Davila had called for a vote of no confidence in Greenwood, but her item did not make it onto the agenda for procedural reasons. She said she would bring back her proposal at a later date.
A late-night language change
Early in the night Thursday, Councilmember Ben Bartlett said he was very concerned about language in the use-of-force policy referencing an officer’s “objectively reasonable belief” or what an officer believed to be true. Bartlett said that left too much room for racial bias.
In response to those concerns, which several other officials and members of the public said they agreed with, Harrison suggested the replacement of all instances of the words “believe” or “belief” in the policy with the phrases “when it is objectively reasonable” and “if it is reasonable” to remove the officer’s perspective as a factor.
Bartlett thanked Harrison for making those changes, and said that, for police, at times, “their mindset is the trigger for the trigger,” which can be problematic if that mindset is based on “bias of a racial character.”
Berkeley Police Lt. Spencer Fomby told officials those revisions could raise issues because the language in the PRC-police collaboration was based on the legal standard defined by the Supreme Court that all other law enforcement agencies use. Greenwood said Harrison’s revision on the dais was a “major substantial change.”
On Friday, Berkeley Police Association President Sgt. Emily Murphy agreed with those concerns.
“This is a very dangerous path to go down for both the department and the community,” she said.
Council members Lori Droste and Rashi Kesarwani abstained from the vote saying there were too many loose ends and that they had too many questions about the late-night revisions to make such a complex decision. Droste said she had been in favor of the PRC version of the new policy, but just didn’t know enough about the changes Harrison made on the dais to support the item in the end.
The rest of the City Council voted in favor of the new policy with the Harrison revisions. The item has now been approved with a start date of Oct. 1.