Oakland P.D. Sergeant’s Suspension for Excessive Use of Force Overturned

Arbitrator George Larney recently overturned a 30-day suspension of Oakland Police Sergeant Robert “Tim” Nolan for use of excessive and unreasonable force. This decision is noteworthy for a number of different reasons that will be discussed in greater detail below.

From my standpoint as Nolan’s attorney, this case is just one more example of the failure of management to 1) accurately analyze the video evidence and 2) objectively and properly apply existing law and Department policy to the case. In a desperate effort to uphold the 30-day suspension of Nolan, the City called three separate police chiefs — the current chief, the previous chief, and a retired chief from Southern California, who testified as an expert witness on the use of force. Why in the world couldn’t the testimony of three chiefs carry the day for the City? Read on.

Background of the Incident and the Grievant, Sergeant Tim Nolan

Tim Nolan, now retired from service, enjoyed a 25-year career with the Oakland Police Department, beginning at the Academy in January 1990. After being promoted to sergeant in 1998, he proved himself a very smart, intuitive and capable investigator, and spent many of his years assigned to the Elite Homicide Section of the Department. Before the incident at issue occurred, Nolan had returned to the Patrol Division, where he had been selected to supervise three different specialized teams. He had received excellent performance ratings, which were introduced into evidence, and had not been disciplined for excessive use of force before this case.

The discipline in this matter arose out of an incident that occurred on January 28, 2012, in downtown Oakland during an Occupy Oakland (OO) protest. Anyone who reads this article is probably well aware that of the 100-plus cities in the United States that experienced Occupy demonstrations commencing in fall 2011, the City of Oakland probably experienced some of the largest and most frequent, violent and destructive demonstrations in the nation.

The OO movement had planned a two-day demonstration to take place on January 28 and 29, 2012. The OO movement had dubbed this demonstration as “Move-In Day” and “Oakland Rise Up Festival.” The objective of the Move-In Day protest was to take over a vacant building and make it a social center and the headquarters of the OO movement.

At an OO meeting held prior to January 28, participants pledged to use violence to overcome police actions that prevented them from taking over a building. Also, OPD had information that the event would be joined by a number of anarchists who had been largely responsible for precipitating violence of other demonstrators in earlier OO demonstrations in Oakland.

On the morning of January 28, Nolan attended a “pretty extensive” briefing with over 100 officers concerning the anticipated events of that day and the following day. He was one of several sergeants assigned to supervise 40 to 50 officers who were part of Bravo Company of the Mobile Field Force.

Crowds were initially light, with only 30 people at 11:00 a.m. However, by 2:00 p.m., the crowd had grown to approximately 500, and demonstrators had been throwing rocks, bottles and other objects at officers throughout the afternoon. Repeated announcements for the crowd to disperse began at approximately 2:50 p.m. and continued throughout the afternoon and early evening, with the demonstrators ignoring the broadcasts.

Shortly after 5:00 p.m., a crowd in excess of 400 people began moving from a location near City Hall toward three possible target buildings to occupy, which included a YMCA located nearby.

Although the plan announced by the Mobile Field Force Command had been for officers to confine the demonstrators in a one-block area in downtown Oakland and then begin making arrests, once officers began moving into position to close off that block, numerous demonstrators began running up the stairs of the YMCA and entering the building. Sergeant Nolan and others were directed to go up the stairs of the YMCA and seal off its entrance to prevent additional protestors from getting inside and possibly occupying the building.

As Nolan ascended the stairway to the YMCA, he observed another OPD officer (later identified as Officer Robert McMillan) involved in what Nolan described as a “pretty violent struggle” with a male demonstrator (later identified as Dylan Brignon), who appeared to be on his back with his feet up in the air and both fists clenched. Nolan saw Officer McMillan on his knees attempting to straddle Brignon, who was moving his body and legs in such a way that Nolan believed the officer was about to be “unseated” by Brignon and lose any position of advantage to effectuate an arrest.

Having observed this, Nolan delivered three successive baton strikes to Brignon’s shin area in a span of three seconds and started to deliver a fourth when he heard him yell “ow” and believed that he was giving up. Shortly after that, Officer McMillan, joined by Officer Mega Lee, were able to turn Brignon onto his stomach and handcuff him.

The three baton strikes delivered by Sergeant Nolan were captured on bystander video taken by another protestor nearby and later posted on YouTube. Brignon, who was booked for failure to disperse, filed a complaint against Sergeant Nolan, and the Department commenced an investigation.

The OPD Use of Force Policy requires the Department to apply criteria established by the U.S. Supreme Court in the seminal case of Graham v. Connor (1989) 490 U.S.386 in evaluating an officer’s use of force. As Arbitrator Larney emphasized in his 71-page arbitration award, the OPD utterly failed to adhere to the Graham v. Connor analysis in evaluating Sergeant Nolan’s use of force, beginning with the faulty analysis of the assigned Internal Affairs investigator, who himself was not a subject matter expert (SME) in the area and who did not consult with a Department expert on this subject.

Once the Department’s Internal Affairs investigator sustained Nolan for excessive use of force on Brignon, the train was on the track and nothing was going to derail it. Despite the fact that Sergeant Nolan had no prior sustained use of excessive force and the Department’s disciplinary matrix would have allowed it to impose a short-term suspension, former Police Chief Howard Jordan advised Nolan in writing that he recommended that the City administrator suspend him for 30 working days (240 hours) for excessive use of force. Following that recommendation, I attended a Skelly hearing with Nolan and argued to a deputy chief conducting the hearing that the Department had utterly failed to adhere to the Graham v. Connor analysis in evaluating Nolan’s use of force. I pointed out that no one with any expertise in the area of use of force had been consulted by the Department to determine if Nolan’s use of force was inappropriate.

After the Skelly hearing was held, the Police Department convened a Force Review Board to evaluate the use of force by Nolan and other officers during the Occupy Oakland protest on January 28 and 29, 2012. Although the OPD policy implementing the Force Review Board authorizes it to consult with an SME on the issues to be decided, the Force Review Board did not consult with any SME within the Department before concluding that Nolan’s use of force violated Department policy.

 filed an appeal and ultimately selected George Larney to arbitrate the 30-day suspension. The arbitration of this case took three days, much of the time consumed by review of the video evidence, which I showed extensively to two of the three police chiefs called by the City. Notably, the City did not call Brignon (who had also refused to be interviewed by the Internal Affairs investigator) and did not call the Internal Affairs investigator to testify.

Instead, the City called as its first witness a police practices expert and former chief of police. Since retiring, the expert reviews cases involving officer force and testifies extensively on that subject. Prior to meeting this expert in connection with this case, I had never dealt with him, and since the City had not identified him as a prospective witness, I had no idea what he was going to say. As it turned out, he said too much and got stung by the video evidence.

After hearing the first expert’s testimony on direct examination, and having analyzed the existing video extensively with our RLS in-house video guru, Bob McFarlane, it seemed that the expert was describing certain actions by Brignon that did not appear on the video itself. With that in mind, I made the expert give a detailed explanation of exactly what Brignon was doing when Sergeant Nolan delivered his first, second and third baton strikes. The expert described in great detail the actions and movements of the demonstrator when each strike was delivered. After he did so, we showed him the video in slow motion and established that when the baton strike was delivered by Nolan in each of the three instances, the activities of the demonstrator testified to had not been captured on the camera. It was as if the expert had either assumed what Brignon must have been doing or simply made it up, thinking that no one was going to challenge his expertise. Although Arbitrator Larney recognized the expert as a very well-credentialed expert in the area of use of force, he wrote in his opinion that his testimony concerning Sergeant Nolan’s use of force was “neutralized on cross-examination when he was shown the video.” Mr. Larney described the expert’s testimony as “inaccurate” compared to what the video showed.

Apparently undaunted by the incredulous testimony of its lead expert witness, the City’s next witness, former Police Chief Howard Jordan, was called to the stand to testify about why he believed Sergeant Nolan’s use of force was excessive under the circumstances. When it appeared to me during Chief Jordan’s direct testimony that he did not really have a good grasp on what the video truly showed, I asked him a series of questions that I had asked the City’s expert the day before — what exactly was the protestor doing at the very instant Sergeant Nolan struck the three blows with his baton? After Chief Jordan delivered an extensive explanation of the demonstrator’s lack of aggression and submission to authority when the three baton blows were delivered, I showed Chief Jordan the video and he was forced to concede that it was impossible to discern from the video whether the demonstrator was passive or aggressive. Arbitrator Larney noted in his opinion that former Chief Jordan was forced on cross-examination to admit that what he had testified to under direct examination was not correct. Mr. Larney wrote regarding Chief Jordan’s testimony “ … that the grievant’s use of force was not in compliance with the Department’s use of force policy was not predicated on an objective analysis, but rather on a subjective evaluation of what Jordan thought he saw in the video and concluding incorrectly that the level of force grievant used against Brignon was unnecessary and unreasonable.”

Although Mr. Larney recognized that “the video of the three-strikes represents the key evidence in this case” and concluded that both the City’s expert and Chief Jordan had incorrectly analyzed the video, he chided the City and its experts for simply giving deference to an incorrect analysis of Sergeant Nolan’s use of force initially arrived at by the Internal Affairs investigator. The arbitrator found two substantial analytical failures by the Internal Affairs investigator that were simply adopted and testified to by current Police Chief Whent, former Police Chief Jordan and the retired expert.

First, the Internal Affairs investigator and the three police chiefs all claimed that Nolan’s use of his baton to strike Brignon was excessive because Officer McMillan had made the decision (as shown in the video) to place his baton in the baton ring before going “hands-on” with Brignon, a clear indication that McMillan did not believe a baton should be used in that situation. In making this conclusion, all of these witnesses ignored McMillan’s statement to the Internal Affairs investigator that he had made the decision not to strike Brignon with his baton only because he sensed other police officers were in the immediate area and he was afraid that he might strike one of them — otherwise he would have used his baton to strike Brignon.

Second, the Internal Affairs investigator had originally concluded — and all three police chiefs insisted — that Sergeant Nolan’s perception that Brignon posed a “threat” to Officer McMillan was “mistaken” because Nolan did not spend enough time examining Brignon’s movements and actions before striking him. This analysis, concluded the arbitrator, violated the proper analysis enunciated by the Supreme Court in Graham v. Connor, which requires “ … a consideration that police officers are often forced to make split-second decisions in circumstances that are tense, uncertain and rapidly evolving.” The arbitrator pointed out that there was “a great urgency” that the OPD officers prevent OO protestors from achieving their announced goal of taking over and occupying the building and threatening the safety of individuals who were inside the building when it was occupied. The arbitrator stated, “If those circumstances were not considered to constitute tense, uncertain and rapidly evolving that were extant at the time grievant happened upon Brignon, McMillan, and Lee,” the arbitrator is “at a loss as to just what circumstances would have to exist to meet the conditions of tense, uncertain and rapidly evolving. Thus, under the given circumstances, [the conclusion by the Internal Affairs investigator adopted by the other three City witnesses] that grievant did not devote ‘enough time’ in evaluating this situation before administering three very quick baton strikes to Brignon’s shin, upon his ‘split-second’ decision to invoke level 2 force with his baton, appears to be completely out of context with the reality of the situation presented before grievant.”

In addition to calling Nolan to testify to the aggressive and threatening behavior of Brignon when Nolan delivered the three strikes, I called Officer McMillan, Bob McFarlane (to show and discuss the video evidence) and OPD baton and use-of-force expert Sergeant Brian Alura. Had the Department bothered to ask its own expert to give an opinion concerning Nolan’s use of force, it would have learned that Sergeant Alura found it to be consistent with OPD policy and the law. Needless to say, the City’s case was dealt a final crushing blow by Sergeant Alura’s testimony.

Conclusion

Tim Nolan’s three baton strikes on the shin of Brignon took slightly more than two seconds. The video that captured Nolan’s approach to the struggle between Officer McMillan and Brignon consumed 15 seconds. The arbitration resulting from this 30-day suspension consumed three days and required hours of analysis of the video. When I teach the class concerning an analysis of video evidence in officer-involved shootings, I always begin by explaining the six separate assumptions that must be made when dealing with video evidence. Assumption No. 6 states that accurate analysis of video evidence is tedious and time-consuming. One would have hoped that the OPD, before putting the disciplinary boots to this 25-year highly regarded police sergeant, would have instructed its various police chief witnesses to carefully and accurately analyze the key piece of evidence in this case. By all accounts, that was too much to ask — or maybe the City thought that no arbitrator would disregard the testimony of three police chiefs, even if it was collectively unsupported by video evidence, contrary to established law and inconsistent with the facts.

About the Author

Mike Rains is a principal and founding member of Rains Lucia Stern. He heads the firm’s Criminal Defense and Legal Defense of Peace Officers Practice Groups. Mike is one of California’s top trial attorneys. He has over 30 years of experience representing peace officers and other high-profile clients in civil and criminal litigation. Mike’s practice focuses on criminal trial work in both state and federal courts. Mike also handles civil and labor-related actions and has served as both defense and plaintiff’s counsel in state and federal court employment cases.