Public Comment

You feel sorry for the Police Review Commission. They discuss police policy while sitting in the same room with the police—who wear guns. They sit behind their name tags so there’s no hiding place at the Police Review Commission (PRC) meetings; people enter the room and realize their beat cop, who is sitting right there, doesn’t enjoy hearing his or her behavior criticized and might remember a complainant's name.

So it’s perhaps no wonder the PRC discovered they had a lot of agreement with the Berkeley Police Department’s (BPD) own assessment of the police response to the Black Lives Matter march on December 6, 2014. What many saw as a police riot was acknowledged by both the PRC and BPD as a carnival of idiocy.

Marchers were beaten, shot with beanbags, and gassed for failing to disperse in places where they couldn’t disperse thanks to being blocked on all sides by police. Orders to disperse from one location were somehow supposed to magically apply to locations blocks away with entirely different groups of people. The very few incidents of vandalism and violence were allowed to proceed unhindered by the police while people trying to non-violently express opposition to police misconduct were obstructed and even injured. Press officers were injured. Religious leaders were injured. People trying to help the injured were injured. 

The commissioners can’t roll their eyes when the sheer nonsense of police behavior becomes overwhelming, as documented in the report about the December 6, 2014 protest march. The people who attend and speak at their meetings are often traumatized, and represent only a fraction of the traumatized community that usually doesn’t bother to try to illustrate police misconduct to the commission. The commission's stoicism, which plays well with the police, is often misinterpreted by an often frustrated public. Despite this, the current commissioners have a commendable level of respect among themselves, with the police department, and with the public. 

But there's no excuse for their refusal to address two glaring omissions in their report. The first is the absence of competent leadership in the Berkeley Police Department. Crafting or improving police guidelines at all is an exercise in futility in a setting where the police's understanding of any demonstration is that once the black-clad, masked vandals in the fringe of a non-violent group break a window everybody gets the full monte; beaten, gassed, trapped between police lines, and thoroughly discouraged from ever attempting to exercise their civil rights again. 

Most of us who were there in December of 2014, including a few members of the Police Review Commission, watched the police use their vast array of quasi-military equipment to injure, scatter, even shoot aerosol chemical agents at the public in an effort to defend first the Public Safety Building, which is the new euphemism for police headquarters and was not in any way a target of the protesters, and then later the freeway on-ramp at I80 while letting vandals and fire-setters run through commercial districts smashing windows and setting fires. Citizens who tried to defend their homes from being burned to the ground[1] were on their own. 

There is some acknowledgement in the report from both the police and the Police Review Commission that leadership stuff went wrong. It's delicately put, but it's there; 

BPD Recommendation #5: "Tactical command decision-making and responsibility should be relocated from the Department Operations Center to the field. We recommend coordination of squad movements happen in the field." 

The Police Review Commission "endorsed BPD's Recommendation #5 as written" so it didn't have to say something like, "have somebody in charge who knows what's happening" or worse. This will isolate the Chief of Police from responsibility for what takes place, so it isn't a recommendation that should bother him. And if he wants to be part of the escalating waves of over-reaction building between frustrated protesters and equally frustrated police officers he can come out and join them; at least he'll have a gas mask unlike the public. 

The refusal to address leadership failures that night did not go entirely unnoticed, as some speakers at the recent public comment period regarding the report implied. It's just that it's buried in phrases which come even from the police officers who wrote the report. BPD Recommendation #7 states, "We recommend commanders in the field make redeployment decisions proactively based on known situational awareness." In other words, the people in charge of the police next time should have a clue. 

The second disturbing omission is the unwillingness of the PRC to take a united stand against the use of CS gas on protesters. CS gas is a chemical agent banned in warfare per the Chemical Weapons Convention of 1993. Nearly every nation in the world, including the United States, signed this agreement. CS gas, which is not technically a gas but rather an aerosol of a volatile solvent, causes an immediate involuntary burning sensation, temporary blindness, severe pulmonary damage, miscarriages, and can significantly damage the heart and liver. 

But it was used in Berkeley on the Black Lives Matter protest in December of 2014. The police insist that a provocative flier they saw before the march with a man sitting on a damaged police car entitled them to assume that it was a "Fuck the Police" protest, despite nationwide protests over police shootings at the time, and planned accordingly. Anyone who has attended demonstrations in the Bay Area in the last thirty years knows that the majority in any crowd have no interest in violence, vandalism, or trouble and will, as was the case in December 2014, try valiantly to de-escalate trouble, confront violence, protect beloved businesses, etc. 

Spraying that non-violent majority with chemical agents known to cause injury is inexcusable. The PRC can insist that civil rights of the non-violent majority be respected and even write it down in their report, but since they did not preclude the use of CS gas, a weapon precluded for use in war, the police can use it anytime they find, or craft, a flier implying that some of the crowd might be violent. Because that is what has happened again and again. 

The current leadership vacuum in Berkeley, both at the City Council and Police Department, leaves citizens at serious risk whether they join a civil rights march or not. Both the police and a majority of the current Police Review Commission insist that a volatile compound, an aerosol chemical agent with serious medical consequences and which can kill people with respiratory and cardiovascular vulnerabilities remain in the hands of a police department which, after two years of considered deliberation, is willing to describe itself as having no clear sense of what's going on and wants an even larger arsenal of quasi-military weapons. 

It's important to note that three members of the Police Review Commission issued a minority report. Commissioners Bartlett, Lippman, and Sherman dissented on the use of CS gas, or "tear gas" as it is sometimes inaccurately described, recommending a prohibition on its use in crowd control and crowd management. And there are good reasons for this. 

The Berkeley Police Department suffered absolutely no consequences for their refusal to differentiate between the fellow who is burning down a local business and the grey-haired couple who are strolling to the theater. Their objective seems to have been to indiscriminately clear the streets. Dispersal orders, even the few that were given, were often drowned out by the roar of news helicopters. Many university students reported hearing voices from garbled loudspeakers combined with the sound of helicopters and came out into the streets in a perfectly natural effort to find out what was going on. 

CS gas itself is equally indiscriminate. The severity of exposure is not a controlled or controllable matter, but depends on: 

a. whether or not the area is enclosed, or semi-enclosed 

CS gas is less likely to disperse in a setting such as a dense commercial district typical in Berkeley which often has residential units on second and third floors above a business. 

b. whether or not one has protective clothing or equipment 

Even clothing exposed to CS gas often cannot be washed or touched without secondary effects and often has to be thrown away, leaving medical personnel or protesters trying to assist the injured at severe risk of incapacitation. Exposure was reported inside the upper residential floors of commercial districts. 

c. the wind 

The wind, especially compounded by the tunnel effects in commercial districts, can carry chemical agents in unexpected directions and did so in December of 2014; the air in downtown parking structures where some tried to shelter was not safe to breathe. 

d. medical intervention 

The effects of CS gas, both immediate and long-term, can be affected by whether or not medical intervention is available for which there were no plans made in December of 2014. Medical providers would need to wear completely protective clothing and specialized breathing apparatus to avoid incapacitation. 

e. other uncontrollable factors 

If protesters or bystanders can't move, they can't get away from chemical agents wafting uncontrollably through air. In December of 2014 people trying as best they could to leave to comply with dispersal orders or avoid bean-bag rounds and CS gas were trapped by police lines. In at least one case a CS gas canister was picked up and thrown back behind the police lines. People with pre-existing medical conditions risk death. 

It's not possible to use an uncontrollable chemical agent in a controlled way. It's irresponsible to leave weapons banned for use in war in the hands of a police department which has in no way recognized this. And the PRC, if not the Police Department itself, has a responsibility to public safety. Sidestepping this responsibility is outrageous. 

A third omission, the unwillingness or inability to govern mutual aid forces, was highlighted in a letter by local attorney Osha Neumann, who notes that a 1992 mandate passed by the Berkeley City Council requires that "BPD take direct supervisory responsibility for all mutual aid units..." If the PRC ignores this mandate the current BPD practice of allowing mutual aid forces to ignore community standards creates a wide opportunity to sidestep local guidelines. 

J. George Lippman, a PRC commissioner, salutes the "determination and courage" of community members who protested and testified repeatedly about the abuses they witnessed, saying, "the community needs to continue to engage with the commission to address remaining issues such as ending gas deployments in crowd situations and supervising mutual aid agencies as mandated by law; and to build on this momentum to overturn a documented pattern of racial bias in stops and searches, and finally bringing true oversight and accountability to policing in Berkeley." 

A few weeks ago a panhandler was sprayed with a chemical agent on College Avenue by an unknown assailant. The chemical floated into a nearby cafe affecting employees and diners. The police, and perhaps others, may always been looking for the convenient weapon which will accomplish a perhaps dubious short-term objective. But our public health as a community is long-term, and our safety depends entirely on using the knowledge we already have about CS gas to make the same decision about it that the San Francisco Police Department has made. CS gas should be prohibited for crowd management and crowd control for the obvious reasons -- it creates confusion, panic, temporary blindness, and injury. It makes nonsense of any tactical plan with the mere introduction of the wind. 

CS gas is taboo for use in war under international law. CS gas, when used correctly in optimum circumstances, undermines public safety. The 2013 Nobel Peace Prize was awarded to the Organization for the Prohibition of Chemical Weapons (OPCW) because it created the Chemical Weapons Convention defining the use of chemical weapons as prohibited "under international law" according to Thorbjørn Jagland, Chairman of the Norwegian Nobel Committee. Its use profoundly chills the First Amendment expression the city is legally obligated to protect. 

If the Berkeley City Council, the PRC, and the Berkeley Police Department think they've demonstrated that on the contrary there is a profound necessity for the use of chemical weapons in crowd management and crowd control, it was not in evidence in any of their collected video, first-hand accounts, or lengthy reports two years after a non-violent march for civil rights sadly missing not only nationwide, but in Berkeley, California.