Oakland Officer Back on the Job

Posted by Harry Stern

Arbitrator Joe Henderson has returned Oakland Police Officer Kwang Lee to work after the department fired him in April 2001. At the conclusion of a three-day evidentiary hearing, Henderson determined that the city of Oakland terminated Lee without just cause.

Lee grew up in Milpitas and, while attending Cal State Hayward, decided he wanted to embark on a career in law enforcement. Lee was hired as a Police Cadet with Oakland and, eventually, attended the police academy. After successfully completing the field-training program, he became one of the men and women patrolling the crime-ridden streets of Oakland.

Lee’s termination was premised, according to department documents, on three incidents. The common theme among the incidents was that Lee was, in each instance, engaged in proactive police work as has always been expected and required of Oakland officers.

By way of background, Oakland is one of the most dangerous cities in America in which to be a police officer. Oakland officers are murdered by gunfire at a higher rate than any other municipality in California. Oakland’s officers are also subject to a wide range of violence, ranging from stabbings to being run over by motor vehicles. Historically, the police administration has recognized that Oakland officers are required to use force to protect themselves and the public.

Yet, Lee’s termination occurred in a striking departure from this recognition. One of the three allegations which resulted in Lee’s termination was to result of Lee striking a woman with a baton and punching her once in the face during a riot at a “booty shaking contest.” In the second incident, Lee fired three shots at a wanted felon who had attempted to ram Lee and his partner with his car during a routine traffic stop. A shooting review board determined that the first two shots were within a policy, but that the third shot, fired on a steep embankment when the suspect lunged at Lee, was excessive. Lastly, the department tacked on a non-injury traffic collision that occurred during the pursuit of a stolen auto. These events are described in greater detail below.

The Force at the Booting Shaking Contest: The Henry J. Kaiser Auditorium is a large concert venue in downtown Oakland. A small contingent of Oakland officers was assigned to the Kaiser Center to provide a police presence for what they believed was a Stanford University sorority party. During the pre-event squad briefing, the officers learned, to their dismay, that the event was not a sorority party but rather a “rap concert and booty shaking contest.” Given the past unfortunate experiences with rap concerts in Oakland, the sergeant in charge of the detail ordered his officers to bring crowd control equipment to the event.

Predictably, the promoters oversold the event and, when the authorities attempted to close access to the auditorium, approximately 200 people “bum-rushed” the main entrance. The concertgoers threw rocks and bottles, smashing a number of windows in the process. The Oakland sergeant on the scene radioed for all available assistance.

Lee was working patrol and responded to the call for help. When he arrived he saw another officer being attacked by a group of women. That officer (a 17-year veteran) had attempted to move one member of a group of women off of the Center’s front steps. While he was escorting her from the steps, the woman turned and punched him in the face. When the officer attempted to take her into custody, he was jumped by a group of 10-to-15 of her friends who began kicking and punching him.

Lee waded into the fracas in order to help his fellow officer. One of the attackers snatched Lee’s microphone off of his lapel and began to run away with it. Lee was jerked in her direction and then began to chase the woman.

At this point, a second woman emerged from the group that had set upon the other officer. This woman charged toward Lee. She was so determined to go after him that she even shook off a man who tried to hold her back. She raced toward Lee shouting and holding her fists in an aggressive manner. Thus, when Lee turned from the woman who had snatched his microphone, the second woman was in his face.

Lee responded to this immediate threat by striking her once in the leg with his baton. When the baton strike had no discernable effect, Lee struck her once in the face with his hand.

Lee’s confrontation with the two women was captured on a videotape taken by Kaiser security. The Legal Defense Fund authorized our office to hire expert Don Cameron and to utilize our own private investigator, Mike Schott. Schott provided service as a “forensic videotape analyst.” He took the raw video footage and broke it down to an enhanced frame-by-frame sequence. Schott determined that Lee only had three-tenths of one second to react once the second woman was on him.

Don Cameron testified as a use of force expert. Cameron studied the videotape and the reports and gave the opinion that Lee’s uses of force were reasonable given the hostile crowd and the woman’s obvious aggressiveness. In short, Lee reacted reasonably in order to protect himself when she violated his “critical space.”

The city hastily hired their own use of force expert to rebut our evidence. Amazingly, the city’s expert contradicted the conclusions of the Internal Affairs investigation and the testimony of several Oakland police administrators and gave the opinion that the baton strike was objectively reasonable given the circumstances. However, the city’s expert stated that the hand strike to the face constituted excessive force. Some of the city’s expert testimonies centered on the idea that, in essence, it did not look good politically for a male officer to punch a woman in the face. On cross-examination, the expert was forced to concede that there was no policy against such a strike. Furthermore, all of the witnesses (from both sides) agreed that the baton strike was ineffective. Accordingly, we argued that the hand strike was appropriate since the woman was still a danger.

The city also faulted Lee for failing to make a timely report of his use of force. The evidence proved that the only officers who have reported uses of force during this melee were those summoned to the post-incident debriefing at the behest of the scene supervisor. As a patrol officer, Lee was not summoned to the debriefing. In fact, Lee reported his use of force to his own patrol sergeant after he consulted with more senior officers.

The Shooting: In a second case, Lee and his partner were on patrol when they noticed a car driving in an erratic manner. They initiated a traffic stop and the suspect vehicle stopped in a gas station. Lee became suspicious when the driver did not have proper identification. As Lee walked from his patrol car to consult with his partner, the driver of the suspect car suddenly threw his vehicle into reverse. Lee, who had crossed in between the suspect car and the front of his patrol car, saw the suspect car’s reverse lights come on, heard the tires squeal, and saw the car hurtle toward him at a high rate of speed. Lee was trapped and had no other option but to fire two shots at the driver in order to protect himself. The suspect put the car in drive and sped out of the gas station but crashed a short distance later. The suspect then fled on foot.

Lee and his partner gave chase. Citizens in the area pointed up a steep embankment under a nearby freeway. Lee began to search the embankment, which was covered with vegetation. Suddenly, Lee spotted the suspect who was attempting to hide. The suspect’s hands were hidden beneath him. Lee ordered the suspect to show him his hands. Instead, the suspect lunged at Lee and swiped at his legs in an apparent attempt to knock him off balance and down the embankment. In response, Lee fired a single shot at the suspect. The round did not find its mark, however.

The uninjured suspect ran off but was quickly taken into custody. It turned out that he was wanted on a felony drug warrant. Furthermore, a citizen informed the police that he had seen the suspect running with a gun just before he scaled the embankment, although, a search of the area did not uncover the gun.

The police department convened a shooting review board to examine Lee’s discharge of his firearm. The board determined that the first two rounds fired at the gas station where appropriate, given the fact that the suspect was attempting to ram Lee with his car. However, the board determined, by a four-to-three vote, that Lee should not have fired the third shot on the embankment because it was a poor tactical decision the climb the embankment by himself.

At the hearing, we were able to establish that no other Oakland officer had ever been disciplined for discharging his firearm in such a circumstance. We were also able to lock the city in the untenable position that their finding of fault as to the third shot was based on a “Monday morning quarterbacking” view of Lee’s tactics. Moreover, we proved that the department’s written decision in support of Lee’s termination stating that Lee fired out of unjustifiable “bare fear” was completely misguided. The firing of the third shot was not based on unsupported “ bare fear.” Rather, Lee had a number of factors in his mind, given the fleeing felon’s dangerous actions, that led him to believe that the suspect posed an imminent threat to his safety.

The Traffic Collision: The city threw in an allegation concerning a noninjury traffic accident in support of their termination of Lee. In that case, Lee and his partner spotted a stolen car in North Oakland and gave chase. Lee collided with some parked cars when he tried to avoid the stolen car, which had also crashed. The department called a traffic officer who stated that Lee was probably traveling under 25 miles per hour and was not involved in any particularly unsafe driving. The department administration witnesses conceded that the traffic collision was not an independent grounds for termination, but instead, would routinely warrant a written reprimand.

The Arbitrator’s Decision: Arbitrator Henderson completely discounted all the allegations of excessive force concerning the Kaiser Center riot. Henderson found that Lee acted reasonably when he used his baton and hand strike to defend himself from the woman who charged him. The arbitrator did find that the city “could have a reason” to discipline Lee for his failure to immediately report his use of force and, thus, said that a three-day suspension was in order.

With regard to the shooting, the arbitrator agreed with our position that it was inappropriate to rely upon Lee’s alleged inappropriate pre-shooting tactics to conclude that the third shot was fired outside of policy. However, in what amounted to a minor concession to the city, Henderson ruled that the city “could” have “some” reason to discipline Lee for the third shot and, therefore, allowed the city to suspend him for fifteen days.

Not surprisingly, Henderson followed the testimony of the city’s own witnesses and gave Lee a written reprimand for what was his second preventable traffic accident.

Arbitrator Henderson wrote that the city “terminated Lee without just cause.” Henderson awarded Lee reinstatement with restoration of seniority, full back pay including all benefits, with the only offset being a subtraction of 18 days of suspension. Thus, given the fact that Lee was off work for nearly two years, he will be entitled to over $100,000 in back pay and benefits. Suffice to say that this was a major victory for Lee, the Oakland Police Officers’ Association and the rank-and-file officers of the OPD who patrol one of the country’s most dangerous jurisdictions. Lee was particularly thankful for the support of the Legal Defense Fund, not the least of which was hiring expert Cameron and utilizing the Rains, Lucia & Wilkinson’s own investigator, Schott, whose testimony and analysis was so crucial to victory.