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“Reign of Terror” Terminations of Two Oakland Police Sergeants Overturned – The Continuing Saga of the Aftermath of the Riders Case

Posted on Friday, September 01, 2006 at 12:00PM
Posted by Michael L. Rains

To all of my friends who enjoy reading about police culture and the factors that influence how police think, act and react, I encourage them to read “Police—Street Corner Politicians,” written almost 30 years ago by William K. Muir, Jr., Professor Emeritus of Political Science at University of California at Berkeley. As one of the prominent reviewers of this book commented, “To read this book is to acquire a rare insight into the police officer’s point of view, to see his job as he finds it, day after day, crisis after crisis.”

In his book, Professor Muir essentially concluded that the street cop is “society’s fall guy” after talking with police officers, supervisors, and managers over a substantial period of time in a large police agency in California, which he called “Laconia.” Professor Muir also discussed at some length the police chief’s implementation of a “reign of terror” through the misuse of the Internal Affairs process as a “political instrument.” As Professor Muir noted, Internal Affairs was not neutral, was not fair, but was instead harsh and “crazy.”

I will discuss the results of Laconia police chief’s institution of the “reign of terror” below. But first, I want to talk a little about the reign of terror that I have seen implemented by the current Oakland police chief as part of the “reform” of the Oakland Police Department resulting from the negotiated settlement of the “Riders” civil suits.

Since the conclusion of the last Riders’ criminal trial, I have had the honor and the pleasure—along with the anger and the anxiety—of representing probably the two most decorated members of the Oakland Police Department still employed. In one case, Sergeant Barney Rivera, who had approximately 30 years of experience and countless medals and awards for valor and outstanding police work, was fired by the then recently-arrived police chief, who ignored recommendations of his entire chain of command on how to deal with the case.

When we got to a pre-disciplinary hearing, I presented the department with a written letter, which was angry, accusatory, and threatening in every respect. I had discovered that documents which were exculpatory to my client had been purposefully and systematically withheld, another “trend” which is occurring all too often in the post-Riders reform era, since the department adopted a “new way” of providing officers who face disciplinary action with “relevant” documents. Instead of the “old days”, in which the Internal Affairs investigators would provide these officers with all documents except those which were deemed to be protected by the attorney-client privilege or to contain sensitive criminal justice information, the department now allows a representative from the City Attorney’s Office to rummage through the entire investigative report and attachments, and decide which documents should be provided to the officer and his attorney, and which documents should be withheld. As a result, we now spend a great deal of time screaming about and fighting for documents which have been gathered as part of the investigatory effort, but which have been exempted from disclosure by the City Attorney’s Office as part of the Skelly packet.

Needless to say, in Sergeant Rivera’s case, after threatening to expose the pre-disciplinary due process denial associated with the systematic and selective withholding of documents, and exposing the shoddy and inept thinking of the police chief which led to my client’s termination (he was fired for using a ruse to get a suspected drug dealer to come to the door, and for threatening to tow her car, which was illegally parked), the department relented and reinstated Sergeant Rivera. To the police chief’s credit, he made a personal apology to Sergeant Rivera for his initial errant decision.

Then came the termination of police Sergeant James “Michael” Gantt. While I think Rivera had slightly more awards and medals than the numbers accumulated by Gantt, their stature and accomplishments as incredibly talented and dedicated law enforcement officers were similar. Gantt had joined the Oakland Police Department (OPD) in November 1988, after growing up in the Bronx, NY, and learning about how it was to live on the streets, and how one survived by learning how to talk. As a result of his experiences, Sergeant Gantt distinguished himself almost immediately upon his arrival at the OPD with his ability to talk to dope dealers and to buy from dope dealers. The total number of undercover buys made by Sergeant Gantt is probably incalculable, but would be in the thousands. He was sent into apartments and residences to buy dope from persons wanted for homicide and persons who shoved guns in his face and threatened to blow his brains out. In 2002, the National Association of Police Organizations (NAPO) named Mike Gantt the nation’s “Top Cop” for his involvement in an incredible incident in which he rescued a woman who had been kidnapped and whose captors were about to kill her.

In addition to spending years in narcotics-related assignments, Sergeant Gantt also distinguished himself by developing expertise in gangs, and spent a great deal of time in the OPD gang unit, becoming knowledgeable about the interplay between gangs and drugs. He was recognized as an expert in numerous areas involving sales and packaging of narcotics, as well as the practice and operation of gangs and their involvement in illicit narcotics activities. Juries who heard Mike Gantt liked him, but more importantly, believed him. Many of the Alameda County D.A.s depended on Sergeant Gantt to testify as an expert in cases, and his personnel file includes a number of commendations from D.A.s concerning both the character and quality of his testimony.

Unfortunately, Mike Gantt, like Barney Rivera, was to become a victim of the post-Riders reform era, and more specifically, the chief’s “reign of terror.” After all, if the “goal” is to “reform” the police department, why shouldn’t the administration send the “message” that if they are willing to fire two of its members with virtually unblemished personnel records and distinguished careers for minor transgressions, everyone who is wearing a blue uniform is susceptible to the same treatment for the same reasons.

Mike Gantt’s “transgression” occurred in February 2004, when he received a telephone call from an old Navy friend, who was now a deputy sheriff in San Francisco. His friend told him that another mutual friend who had been in the Navy with them had been arrested by the OPD for rape. He asked if Sergeant Gantt would check to see if he was okay, and Gantt agreed to do so. Sergeant Gantt, who went to the jail on a regular basis to contact and interview suspects and to try to develop informants, paid his friend a visit in the jail. His friend discussed his “version” of the incident with Gantt, and gave Sergeant Gantt an account of why the allegations were essentially bogus.

Thereafter, Sergeant Gantt went to the records division and obtained a copy of the victim’s written statement. He took that copy to a deputy D.A. to whom he had gone to charge an assault case. After having the assault case charged, he asked the D.A. to take a quick look at the victim’s statement and to tell him whether or not the D.A.’s office would likely charge the rape. In essence, the deputy D.A. said that the D.A.’s Office would probably charge the rape. According to the Deputy D.A. to whom Sergeant Gantt talked, at no time did Gantt say, or even suggest, that the D.A.’s Office do him a favor by not charging the case, or treating it any differently than any other case that comes into that office.

Nevertheless, the deputy D.A. told his immediate supervisor of Sergeant Gantt’s inquiry, and his supervisor, in turn, talked to the investigating officers, who later showed up to charge the case. The supervising D.A. flat out lied to the investigating officers concerning Sergeant Gantt’s contact with her subordinate, and she directed them to report Sergeant Gantt to their superiors at the department. As a result, an Internal Affairs investigation was commenced, and Sergeant Gantt was later fired for 1) compromising a criminal case; and 2) showing his friend, (the suspect) a copy of the OPD crime report (which Mike denied doing). Significantly, the second charge was based upon some tape recorded conversations between the suspect and his lawyer, in which the suspect, in response to a question from the lawyer, stated Sergeant Gantt had shown him a copy of “the report.” Nevertheless, many of the facts which the suspect stated were in the “report” were simply not there at all, or were different than the facts recited by the suspect.

In the course of reviewing the tape recorded telephone conversations between the suspect and his lawyer, it became clear that the lawyer himself had seen a copy of the OPD crime report, which he stated was shown to him by “a cop—a buddy of mine” when the lawyer came to the jail to see his client (which occurred before Sergeant Gantt had gone in to see his friend). Despite the fact that it would constitute serious misconduct for any Oakland police officer to show a criminal defense lawyer a copy of a police report concerning the lawyer’s client before the arraignment, OPD made no effort to ascertain the identify of the lawyer’s “buddy” who had showed him a copy of the report.

When it came time for Sergeant Gantt’s “chain of command” to review the Internal Affairs investigation and to recommend discipline, his lieutenant, concluding that it was improper for Sergeant Gantt to have visited a friend in the jail, and that it could have reflected poorly on the department for Sergeant Gantt to have discussed the case unofficially with the District Attorney’s Office, recommended that he receive a 30-day suspension in view of his lack of prior discipline and his outstanding contributions as a police officer with the department. The lieutenant’s recommendations for discipline were concurred in by Sergeant Gantt’s captain. The deputy chief, however, thought Sergeant Gantt should be terminated, and the police chief agreed with him.

After Sergeant Gantt had been terminated and we went to arbitration, we once again learned that certain documents and taped conversations between the suspect and his lawyer had been withheld from us. The city was ordered to turn over those tapes and materials during the course of the arbitration. But more significantly, we introduced evidence that the deputy chief, who had recommended Sergeant Gantt’s termination had himself been involved in a situation where an individual who he was “mentoring” had been arrested for drugs and guns, and the deputy chief had contacted arresting and investigating officers in the department, as well as the probation officer, and had requested them to do things that they would not have done under any other circumstances. According to one of the officers, when they showed up for a hearing concerning the arrest of this individual, the probation officer seemed very offended and annoyed about the nature of contact she had received from this deputy chief, who had allegedly mentioned something about showing his mentoree “some love.”

Even more significant was the fact that we introduced testimony that the city manager (who ultimately signed Sergeant Gantt’s Notice of Termination) had actively interfered with a criminal prosecution of the son of one of her assistants, and had initiated a personnel complaint against the arresting officer (even though she denied it under oath). We introduced testimony of a police captain and a former deputy police chief (who had since become a police chief in another agency), that the City Manager was the complaining party (contrary to her sworn assertions), and that she had expressed concern that the arresting officer had shown up to testify against her assistant’s son at his criminal hearing. Yet, the city manager steadfastly maintained that she had not interfered with nor attempted to compromise the criminal case involving her assistant’s son.

Now that I think about it, I really don’t remember seeing a provision in the “Riders” Negotiated Settlement Agreement, which states that there are differing levels of accountability for management than there are for the rank and file.

Needless to say, after Arbitrator Jerilou Cossack heard testimony from the city manager, and then heard the recently-arrived police chief testify that it was okay for an Oakland police officer to be a “thief” but not a liar, and when the discovery abuses were uncovered and the double standards apparent, she was heard on more than one occasion encouraging the parties to discuss settlement. Although we had proposed a settlement of the case after the first day of hearing, which would result in Sergeant Gantt’s reinstatement and a short-term suspension, the city did not want to move. Finally, on the fourth day of hearing, just before the arbitration was due to start, Arbitrator Cossack advised the deputy city attorney presenting the department’s case to step outside the hearing room and undoubtedly delivered a message that prompted the attorney to adjourn to her office and make a series of hasty phone calls to department and city officials. Although the city attorney had repeatedly told me that the recently-arrived police chief wanted to “make a statement” by the way he handled this case, it was reasonably clear that the statement he wanted to make was not the statement that anyone from police department management or the City Attorney’s Office wanted to read when they got Arbitrator Cossack’s opinion and award. Subject to a suspension for inappropriately involving himself in a criminal case involving his friend, Sergeant Gantt returned to work at the OPD, and has already participated in a number of high profile investigations and arrests of serious criminals.

The “reign of terror” instituted by the current administration has not only counted amongst its victims Sergeant Barney Rivera and Sergeant Mike Gantt. Other officers, and supervisors/managers too numerous to mention, have been disciplined, demoted or fired by the police chief, who has in many cases, ignored the recommendations of members of the chain of command, who, unlike the chief himself, have worked at OPD in supervision and management assignments for years, and have had, and continue to have, some appreciation of the concept of fair and consistent discipline.

Before I conclude this article, let me come back to Professor Muir and his study of the “reign of terror” employed by the Laconia police chief some 30 years ago as a “political instrument.” Professor Muir discussed five separate “counterproductive responses” to the police chief’s reign of terror. Those are described in the book as follows:

  1. Officers came to treat Internal Affairs as an unscrupulous enemy.
  2. The reign of terror infected officers with over-cautiousness in everyday street activity, resulting in the officers shying away from troublesome situations and preferring to “kiss them off” rather than run the risk of taking action and exposing themselves to complaints. In essence, de-policing occurred.
  3. The reign of terror appeared to inhibit “taking a chance” which Professor Muir found to be particularly essentially to the development of younger police officers who need to discover different procedures or methods to accomplish desired results.
  4. The treatment accorded officers by Internal Affairs encouraged secrecy. Officers clammed up because the costs of disclosure were simply too great. As a result, the chief and the administrators close to him were isolated from informal sources of intelligence about how the officers felt or were thinking.
  5. The reign of terror became very effective because the chief developed a reputation for being harsh, irrational, detached and remorseless. To make the threat of Internal Affairs effective, the chief had to establish the “reality of his cruelty.”

The cruelty that affected the lives and careers of Oakland Sergeants Barney Rivera and Mike Gantt cannot be overstated. It was not just cruel for the chief to terminate them in disregard of recommendations of his own chain of command, but cruel that the city tried to “prosecute” them by withholding relevant documents and information helpful to their defense.

We have now come full circle in the city of Laconia. In truth, Professor Muir’s study of Laconia was a study of the police department of the city of Oakland. And history has at least tried to repeat itself by the chief’s initiation of a reign of terror. One needs only to study the substantial increases this year in Oakland homicides and other violent crimes, and the greatly diminished number of police-initiated contacts and arrests to understand how crime rates are affected by de-policing, which, in turn, results from an Internal Affairs “reign of terror.”

Thirty years ago, the intended victims of the Laconia “reign of terror” did not have the benefits of the PORAC Legal Defense Fund. I am hopeful that, although we may not change history altogether, we may be able to interrupt, if not disrupt, the Oakland “reign of terror,” and thereby bring some reason, sense and stability to the working lives of the outstanding officers who put on the uniform and walk by the wall with the names of 46 fallen comrades as they go to work each day.

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.