Oakland Police Department Administration Loses Again: Officer’s Suspension Overturned

HARRY S. STERN
Principal
Rains Lucia Stern, PC

In yet another installment of the serial rebukes of the Oakland Police Department’s “leadership by punishment” philosophy, an arbitrator has overturned an eight-day suspension of veteran Officer Wendy Cross.

As crime soars in the nation’s third most dangerous city, and resources disappear and arrests dwindle, the few officers left actually patrolling the streets are given the not-so-subtle message that any proactive police action will likely lead to discipline. The net result is what has been described as “de-policing” and a surge in violent crime.

This vexing case arose out of two separate incidents: an alleged improper drunk-in- public arrest, and a vehicle pursuit of a felony car theft suspect. I had the honor of representing Officer Cross and was assisted by associate attorney Jonathan Murphy.

The 647(f), Drunk-in-Public Arrest

In 2008, Officer Cross responded to an out-of-control party. The residence in question was a problem spot known for raucous gatherings with free-flowing alcohol and other substances. Not surprisingly, the neighbors had become exasperated and regularly called the police when things got out of hand.

In their second visit that evening, Officer Cross and her colleagues met down the street and approached in mass because the party had turned particularly wild. When Officer Cross and her backup attempted to clear the party they were met with threats and hostility.

Eventually, the officers were able to get many of the partygoers to leave; however, a smaller group defiantly remained. They refused to leave and were verbally harassing the officers before locking themselves in a garage from which they began playing loud music.

Officer Cross saw a man staggering out of the garage. The man stumbled in the driveway and then fell against the side of the building. She could tell that the man was very drunk and believed he was unable to care for himself, so she decided to take him into custody.

The Department determined that the arrest was improper because the drunken reveler was not “in public.” This finding flew in the face of relevant case law and common sense.

The Pursuit

In late 2009, Officer Cross and her partner were on routine patrol in a marked car. Officer Cross was riding shotgun while her partner drove. They heard a radio broadcast about a car chase and joined the chase in order to allow a sergeant in the only other car in the pursuit at the time to fall back into his mandated supervisory role. Officer Cross called the pursuit, communicating via radio with the other officers, dispatch and supervisors. A sergeant and a lieutenant were on the radio monitoring the pursuit for its entire duration.

Officer Cross’ unit was only close to the lead car when they were “making corners,” following about seven to eight city blocks behind on a straightaway with no other traffic. Officer Cross observed what she believed to be a deliberate attack on the lead officer’s vehicle. Officer Cross saw the suspect’s vehicle ram the lead officer’s car, causing it to jump the median and send car parts flying. However, what had actually happened was that the lead officer tried to conduct a PIT maneuver on the stolen car.

The pursuit ended when the suspect failed to negotiate a turn and crashed his vehicle into a fence. No one was injured. It took place in the early hours of the morning, with virtually no traffic and clear conditions. The pursuit weaved in and out of Oakland and San Leandro, with 80 mph as the fastest speed reported by Officer Cross.

The pursuit was reviewed by the Department’s Safety Committee, which found the pursuit to be out of compliance based on two risk factors: speed and familiarity with the area. Keep in mind that Officer Cross was the passenger in the second car in a chase being actively monitored by a sergeant and lieutenant.

Determination of the Arbitrator

This case was heard by Arbitrator Walter Kawecki. Arbitrator Kawecki found there was no just cause for discipline for the pursuit because 1) he did not believe Officer Cross had the authority to terminate the pursuit by overriding the supervising sergeant and watch commander, and 2) given the light traffic, good conditions and Officer Cross’ reasonable belief that she had witnessed an assault on another officer’s vehicle, a reasonable officer would have continued the pursuit until its completion.

The arbitrator also found there was no just cause for discipline for the 647(f) arrest because the arrested man had no expectation of privacy in the driveway of a home that was not his residence, citing an unpublished case we discovered and raised in our post-arbitration brief (Pankey v. City of Concord). He did, however, uphold a one-day suspension for Officer Cross’ admitted failure to properly inventory a vehicle, in a matter that was combined with the other allegations.

Arbitrator Kawecki’s award clearly reflected an appreciation for the difficulties and challenges facing officers on the streets.

Officer Cross was extremely pleased with the result and extends her sincere thanks to the Legal Defense Fund for their support and assistance.

About the Author

Harry S. Stern is the managing principal of Rains Lucia Stern, PC. His practice is focused on civil litigation and criminal defense. He regularly represents peace officers in internal investigations, administrative hearings, coroner’s inquests, grand jury proceedings, and related court actions.