SAN FRANCISCO (CN) — A federal judge offered to tweak an injunction against the Oakland Police Department Tuesday after the city’s policing partners refused to provide aid during protests unless restrictions on tear gas and rubber bullets were lifted.
“On one hand I insist when you do policing, you do it with certain constitutional norms,” U.S. Magistrate Judge Joseph Spero said during a virtual court hearing Tuesday. “On the other hand, I can’t be blind to the fact that mutual aid partners are saying no.”
Three months ago, Spero issued a preliminary injunction barring Oakland police from using rubber bullets and limiting the use of tear gas and flash-bang grenades to only when necessary to protect people or property after verbal warnings are given and when other techniques have failed to eliminate the threat.
The injunction also requires Oakland to abide by its 2013 crowd control policy, which requires it to brief mutual aid partners on what weapons are banned by city policy, such as rubber bullets, and to ensure law enforcement partners agree not to use less-lethal weapons unless authorized by the Oakland police commander in charge.
After the injunction was issued, Alameda County Sheriff Gregory Ahern and other local police agencies said they would no longer send officers to help Oakland during protests because the injunction limited their ability to protect officers and do their job.
Earlier this month, Oakland asked Spero to alter the injunction, arguing the city could not ensure public safety during large-scale protests without assistance from the sheriff’s office and neighboring police departments.
On Tuesday, Spero said the mutual aid partners’ refusal to provide aid confused him because his injunction only applies to the city of Oakland. Outside law enforcement agencies would face no consequences for using weapons or tactics banned by the court, but Spero could penalize Oakland for not informing those partners of the need to abide by Oakland’s policies and command structure during protests.
The stance taken by mutual aid partners “smacks of politics,” Spero said, but it also puts him “in a pickle” as he tries to find a way to ensure Oakland can get essential aid during protests while protecting demonstrators’ First Amendment rights.
Attorneys for the Anti-Police Terror Project and protesters who sued the city in June say Oakland has a duty to ensure its partners provide support, even if that means suing the Alameda County Sheriff’s Office and neighboring police departments for failing to provide mutual aid as required by state law.
Spero bristled at that suggestion, saying he cannot order Oakland to litigate its rights against parties not before him.
“Can you envision the order,” Spero asked. “Go sue the governor or go sue the sheriff because they haven’t provided assistance.”
Civil rights lawyer Dan Siegel urged the judge not to bow to pressure by the sheriff’s office to weaken an injunction aimed at preventing the kind of excessive force his clients say they were subjected to during protests in May and June.
“The sheriff, by attempting to put pressure on the city of Oakland, is essentially putting pressure on you to alter your views on what must be done to protect the public and require policing in a constitutional manner,” Siegel said.
David Pereda of the Oakland City Attorney’s Office argued that although Oakland has chosen to ban certain tactics and weapons like rubber bullets, that doesn’t mean other police departments are violating the law by using them.
“We can’t assume these other agencies’ policies or tools are unconstitutional,” Pereda said.
Spero considered letting mutual aid partners bring banned weapons, such as rubber bullets, to Oakland protests with the understanding that they could only use them for self-defense.
“I’m not so worried about them bringing them into the field as I am about them using them,” Spero said.
The judge proposed letting Oakland replace part of his injunction that requires it to ensure mutual aid partners do not use rubber bullets and other banned tactics “except in exigent circumstances” with merely abiding by Oakland’s existing policy, which bans the use of certain weapons and tactics “if possible.”
Spero said Oakland would need to document its efforts to obtain mutual aid partners under the stricter language of the injunction and demonstrate why it needs to switch to a looser standard to obtain adequate personnel to protect public safety.
The judge gave the city and plaintiffs until 5 p.m. Wednesday to reach an agreement on language for a modified injunction, saying he will issue his own order on Thursday if no agreement is reached. Both parties asked the judge to resolve the dispute in time for Oakland to prepare for potential demonstrations on election night, Nov. 3.
Judge Spero issued an amended injunction Wednesday after both sides told him they could not agree on language for a modification. The amended injunction makes clear that officers can still use “reasonable or necessary force as allowed by law” in self defense or defense of another person.
It also allows OPD to obtain mutual aid partners pursuant to the terms of its 2013 crowd control policy if it cannot get enough mutual aid officers under the stricter terms of the court's injunction. The chief must file a report within two days after a protest to justify the need for obtaining mutual aid under the looser standard.
Civil rights lawyers also asked Spero to fine the city $100,000 for violating the injunction during protests in August and September, and to ban the city from using smoke grenades.
Earlier this month, protesters claimed police fired smoke grenades directly into crowds without warning, hitting at least one protester in the head, and crowded demonstrators into tight spaces without routes of escape in violation of the court order. They also claim officers were not wearing face masks as required by the injunction.
Spero took the arguments under submission.
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