Borenstein: Oakland police chief was unfairly fired, confidential reports show
Confidential reports that provided the basis for the firing of Oakland Police Chief LeRonne Armstrong were internally inconsistent and relied on thin evidence to unfairly tarnish his reputation.
That’s my take after reading the reports — and I’m not alone.
“I was dumbfounded by their conclusions,” says civil rights attorney John Burris. “The evidence did not support the termination.”
As lead attorney in the infamous Riders case litigation against the city that has led to two decades of federal court oversight of the Police Department, Burris also has read the confidential documents.
So have members of the Oakland Police Commission, whose chairperson, Tyfahra Milele, in statements after the firing, lauded Armstrong as an “effective reform-minded Chief.” Speaking on behalf of the commission, she too expressed concern about the “questionable quality, sufficiency, and credibility of the outside investigations.”
The confidential reports, prepared by an outside law firm at the behest of court-appointed monitor Robert Warshaw, are reviews of two problematic internal investigations of actions by police Sgt. Michael Chung. In March 2021, Chung left the scene of a vehicle collision in San Francisco without reporting the incident to police there. In April 2022, he discharged a service weapon in an elevator of the Oakland Police Administration Building.
The Oaklandside online news publication obtained a copy of the confidential review of the vehicle collision investigation and published it on its website in February. Bay Area News Group has obtained a copy of the confidential review of the Police Department’s handling of the elevator discharge incident.
The actions of Sgt. Michael Chung have led to two outside probes of how the Oakland Police Department investigated wrongdoing by its own members. To read those confidential reports, click here.
The outside reviews provide clear evidence that Oakland police are incapable of policing themselves. They convincingly show that a captain ordered the internal report on the vehicle collision watered down and that the internal probe of the elevator shooting was badly mishandled.
But the outside reviews overreach in their attempts to blame Armstrong. In claiming that the chief should have known about the problems, the reports ignore the obligations he had to distance himself from his subordinate’s internal probes so that he could make fair rulings when their recommendations were brought to him.
The outside reports’ scapegoating of Armstrong is further evidence that the federal oversight of the city’s Police Department has lost its way. Warshaw forced out a qualified chief who was trying to make reforms and confront the city’s soaring homicide and crime rates.
As the Police Commission searches for candidates to be the new top cop, it’s hard to imagine why anyone would want the job, from which he or she could be fired by the mayor, the police commission or the court-appointed monitor. There are simply too many bosses to please.
Calling the shots
The outside reviews were officially commissioned by former City Administrator Ed Reiskin, but it’s well-understood — and confirmed by Burris — that Warshaw, whose signature of approval appears at the end of each report, is calling the shots.
That’s because, for two decades now, the Police Department has been under federal court oversight as part of a 2003 settlement in the infamous Riders case in which officers were accused of beating and planting drugs on West Oakland residents.
William Orrick is now the judge in charge of the case, and he has given Warshaw sweeping power as the monitor and compliance director, a job for which the city must pay his firm’s bills that last year totaled $755,000.
City officials, who have been trying for years to convince the court to lift the oversight, have felt they must genuflect to Warshaw or risk his wrath. With Armstrong as chief, the city last year was close to finally meeting all the conditions for lifting the court oversight. Then the Police Department’s botched internal investigations of the Chung cases surfaced.
The outside reviews of the two cases conclude that Armstrong’s testimony for the external probes was not credible and that, in the vehicle collision incident, the chief was derelict in his duty to hold subordinate officers accountable.
Those findings led to Mayor Sheng Thao exercising her authority to fire Armstrong in February without first letting the Police Commission investigate. The mayor has said that Warshaw pressured her to fire Armstrong, according to a source with firsthand knowledge. Another source has heard the same thing from others the mayor talked to. Neither Thao nor Warshaw returned messages seeking comment.
Meanwhile, a careful review of the two confidential reports reveals how poorly supported their findings about Armstrong are.
Vehicle accident case
In each case, the reports contain summaries of the outside law firm’s interviews with police personnel who were witnesses or subjects of the investigations. But the conclusions about Armstrong in the two reviews often do not match the testimony summarized in the same reports.
For example, the findings in the first case, regarding the investigation of the vehicle accident, suggest that the chief somehow enabled a coverup. But there’s no evidence in the confidential report to support that.
In that incident, Chung was the driver of a police vehicle involved in a collision with a parked car, left the scene of the incident and failed to report it. An Oakland internal affairs investigator probed the case. In draft findings, the investigator concluded that Chung failed to obey hit-and-run laws and failed to report to superior officers his dating relationship with his passenger in the car, who was a subordinate Oakland officer. The draft findings also called into question Chung’s and the subordinate officer’s credibility.
But the investigator’s commander, Wilson Lau, a captain who has since left the department, ordered the findings be watered down so that they merely faulted the sergeant for the preventable collision but not for the hit and run, removed the identification of the passenger as an officer, removed discussion of the relationship issue, and concluded that the sergeant and officer were credible.
It was those revised findings that were, in a weekly meeting of top commanders in December 2021, presented to Armstrong to make the final calls on wrongdoing and later punishment. The outside law firm concludes that Armstrong knew the true facts of the case before the meeting but was dishonest when questioned later about his past knowledge.
Building on the assumption that the chief knew the truth about the case, the outside review then faults him for not questioning the revised findings, shutting down discussion in the meeting, failing to review a videotape of the incident and failing to read the full revised findings before signing off on them. This is the basis of the dereliction of duty finding.
But there is no testimony in the confidential report to support that the chief did know the true facts. Nor did any witness interview show that someone expressed a desire to ask questions in the meeting and was denied the opportunity.
As Burris, the civil rights attorney, noted, “The report did not have evidence that he (Armstrong) was aware of what had taken place in the effort to change the report. There was nothing in the meeting that suggested that he was trying to prevent evidence coming out.”
The chief freely admitted he knew before the meeting about the existence of the investigation. But there was good reason for him to remain out of the loop on the details — so that he could have an open mind when he reviewed the case presented to him for a ruling on discipline of Chung.
When that time came, the information presented to the chief pertained only to a traffic collision. With 134 homicides in the city that year, we shouldn’t be expecting the police chief to devote hours to a probe of what he was being told at the time was essentially a fender-bender.
Elevator shooting
The second case, involving the elevator shooting, also was badly mishandled during the internal police review. The saga began in April 2022 when a bullet strike mark was noticed in a freight elevator at the Police Administration Building. A week after the mark was noticed, as police were narrowing the possible suspects, Chung confessed to firing the shot and said he had thrown the shell casing into San Francisco Bay.
The Police Department’s initial internal investigation treated the incident as only a negligent discharge without considering that a more-serious crime might have been committed and that Chung might have removed and destroyed evidence. The initial investigation did not include efforts to find evidence or understand the motivation of the shooter.
Armstrong directed that Chung be placed on administrative leave while the department conducted administrative and criminal investigations. And, soon after, the outside law firm took over the internal affairs investigation, and Warshaw directed that the chief be “walled off” from the probe.
It’s that walling off that is a key issue driving the conclusion in the outside review that Armstrong was not credible in his testimony about the case. Armstrong said he respected the walling off; the outside attorneys say he did not.
To support their conclusion, the outside attorneys point to testimony by Deputy Chief Drennon Lindsey and then-Assistant Chief Darren Allison. But that testimony doesn’t seem to support the attorneys’ conclusions. According to summaries of testimony in the report, Lindsey, who is Armstrong’s wife, kept Allison briefed on the case and was certain he was briefing the chief. And Allison, who is now acting chief, said he gave Armstrong regular updates on “high-level issues regarding the investigation.”
That’s consistent with what Armstrong testified. He interpreted the walling off order to mean that he should not have a hand in the decision-making on the case but that he needed to know the progress because Warshaw and the court wanted the case investigated quickly and information promptly provided. Which is why Allison was giving him high-level briefings.
Indeed, Armstrong says, he advised Warshaw that he was receiving those briefings, something that the chief told the outside lawyers but they did not include in their summary of his testimony.
Instead, the outside investigators in their report launch a damned-if-you-do-damned-if-you-don’t critique.
On one hand, they slam him for not respecting the walling off. But on the other they claim that he wasn’t involved enough, saying he approached the case with disinterest and casualness when he should have paid “laser-sharp and focused” attention “to an investigation involving a pattern of criminal misconduct by a sergeant of police under his command.” The failure to do so, they write, “indicates a problem with ‘tone at the top.’”
Recipe for failure
Actually, the problem is not with the tone at the top. Armstrong had nearly brought the department into full compliance with the federal court’s mandates.
“Why,” asks Burris, “would you terminate this particular chief who has worked very hard getting us in compliance, working with the community, working with the commission, getting us moving in a very positive direction?”
The problem is with the process. As the reports and history show, letting police investigate police is a recipe for failure.
But Warshaw’s signing off on these two obviously very-flawed confidential reports suggests the court-appointed monitor was hellbent on taking down the city’s police chief rather than seriously addressing the broken oversight system that Armstrong couldn’t control. If Warshaw and Judge Orrick really want to fix the Police Department culture, they would press for turning over oversight to the independent Police Commission structure that city voters approved in 2016 and 2020.
Meanwhile, the city has lost a solid police chief who was fighting for the very reforms Warshaw purports to be championing.