Category Archives: Public Safety

Great info about Benicia Police Dept policies – and a bunch of questions

By Roger Straw, June 10, 2020

City of Benicia publishes new “Use of Force Policy Review” web page, makes Policy Manual available to public – and pledges to remove choke hold from police policy

I almost always read the City Manager’s weekly newsletter.  But you know how email inboxes can get out of control…

So I missed a really important City of Benicia newsletter this Monday.  City Manager Lorie Tinfow shared information there about Benicia’s response to the police killing of George Floyd in Minneapolis and the subsequent nationwide protests and calls for police reform.  Here is her June 8 message for Benicians concerned about police violence and racial justice.  Read on, but don’t miss a number of my own concerns and questions that follow below.

City Manager Newsletter, June 8, 2020

“The past two weeks have been extremely tumultuous. The killing of George Floyd was the tipping point for many in our country and those participating in the protests and civil unrest that have followed have called for many necessary changes. And they are beginning to happen.

Friday night, Benicia Police Department (BPD) was notified that Governor Newsom ordered the Commission on Peace Officer Standards and Training (P.O.S.T.) to remove the Carotid Control hold from training certification. The change was immediately communicated to our Police Officers. This change seemed to follow an effort called 8cantwait.

Late last week we began to receive emails asking that we enact changes aligned with 8cantwait. Police Chief Upson evaluated the requested changes and directed his staff to create a webpage that offers information designed to increase transparency. The page includes a comparison of what BPD currently does with what 8cantwait wants as well as a table that shows total calls for service with instances of use of force for the past 3 years. Click here to visit the new webpage.

On the new page is also a link to the complete use of force policy that is posted online as required by law. For those interested in reading more, click here to view the policy.

During last week’s protest, the Benicia Police Officers who assisted, performed their duties exceptionally well. They managed traffic and helped keep the space safe for the participants. The officers’ response when at the police station in particular garnered my confidence and my respect. Click here to view the video in case you missed it. Clearly the protesters’ passions ran high but they too performed well, helping bring attention to the much needed changes across the country.

We are all navigating these uncharted waters to the best of our abilities. I appreciate the community, City staff and the City Council for maintaining the connections that keep Benicia strong. Benicia is better together!”

TRANSPARENCY WELCOME

These new developments and the transparency embraced by our City Manager and Police Chief are to be applauded.  I believe that the Police Policy Manual has never before been disclosed to the public, and the Use of Force webpage is an excellent way to engage the public in further conversations.  These moves are significant and show personal and professional judgement in a time of profound unrest and hunger for reform.

BREAKING NEWS: NO MORE POLICE CHOKE HOLDS IN BENICIA

The City’s new “Use of Force Policy Review” web page clarifies current BPD policy and announces that “We will be removing carotid control hold from our policy.”

That policy (§300.3.4, Carotid Control Hold, pp. 48-49) takes up two pages in the current BPD Policy Manual Exactly when and how the manual will be revised and adopted is not clear to me as of now.

CONTINUING QUESTIONS AND CONCERNS FOR BENICIA POLICE

There is more to be done.  City staff, electeds and community members should continue to ask questions and raise concerns.

For instance:

Use of Force Policy Review page on the City website
  1. The “Use of Force Policy Review” page on the City website is a good start. The chart compares 8cantwait.org policy recommendations with BPD policy.  It’s important to note at top that we will be “removing carotid control hold from our policy” (§300.3.4, pp. 48-49).  But other than that, in most cases the BPD column qualifies each policy with “when reasonably necessary,” “where feasible,” etc., which seems a bit weak…  Maybe that’s the best we can hope for?
  2. The final item on that page is requiring comprehensive reporting. The BPD policy is to document all use of force promptly, but it does not address the 8cantwait recommendation to report any time an officer threatens to use force.  Should we consider adding that to our BPD policy?
  3. The 2017-2020 statistics provided on the page are interesting, but pretty thin on facts, context, details.  It would be especially of interest to know about the racial characteristics of suspects and officers involved in these incidents.  Can the BPD make more information available?
  4. It is GREAT that no major injuries have been sustained by suspects or officers in use of force incidents over the past 3 years. But it is noteworthy that tasers have been used in 6 of the last 7 incidents (2019-2020), but prior to that only once in 11 incidents (2017-2018).  Why has the use of tasers increased?  And what are the “minor injuries” that are reported with nearly every use of tasers?
  5. It is GREAT that the public now has access to the BPD’s Policy Manual.  But gosh, it’s 756 pages long!
    • I would assume new officers are required to read the whole thing.  And take a test?
    • How often are officers required to review the document and then take a refresher test?
    • I understand that the BPD is to be commended for its strong emphasis on frequent training exercises.  Have our officers had a recent in-service training on Use of Force policies?  This might be welcome in the current time of unrest and reform.
Other concerns and questions
  1. The BPD Policy Manual has 7 references to “community policing.” It might be well to highlight and expand upon this official Department philosophy in a news conference and/or press release, as well as in an internal BPD memo or workshop.
  2. The BPD Manual lays out crowd control measures and has extensive policies governing discipline. Will the BPD review these policies carefully in light of recent times?  One suggestion: Minneapolis Police Chief Arradondo announced today (June 10) that the MPD will begin tracking disciplinary data as compiled by Benchmark Analytics, and that the Department will rely on this data rather than the authority of a supervisory officer when making decisions related to hiring and firing.  Perhaps the BPD hiring and disciplinary policies could be reviewed in light of this?
  3. Questions about race and gender: How many BPD officers are there, and how many are Black, how many Hispanic, how many Asian, how many White, etc.? How many male and female officers?  The BPD Policy Manual is clear in opposing all forms of discrimination (§328.2, p. 156).  But is the Department under any obligation or philosophical intent to achieve racial and gender balance?  Does the BPD have any official goal statement on recruiting women and minority officers?

Mayor Patterson’s request for Council action on ISO

Excerpt from Mayor Patterson’s E-Alert

Mayor’s request for Benicia Industrial Safety Ordinance (ISO)

June 15, 2018
Elizabeth Patterson, Benicia Mayor 2007 - present
Elizabeth Patterson, Benicia Mayor 2007 – present

I believe we need to have a seat at the table, the public’s right to know and air monitors to restore the public trust that we are putting health, safety and welfare at the top. I am asking the council to challenge the status quo by submitting a draft Industrial Safety Ordinance.  I am asking the council to direct staff to review the draft ordinance with outside third party knowledgeable about industrial safety ordinances and report back to the city within a reasonable time such as 3 months or sooner.

The Industrial Safety Ordinance provides Benicia the where-with-all through proposed fees to review refinery safety, air pollution and public safety reports, update Benicia Emergency Response Plan, improve public alerts system and provide for air monitoring.  This is a budget neutral proposal by setting up a fee structure to pay for the cost of the city having a seat at the table and expertise to review the reports.  The expertise can be outsourced and does not require additional staff.

This Industrial Safety Ordinance is challenging the status quo.  I believe the public has a right to know they can trust us to put them first in safety, air quality and public health.

Benician C. Bart Sullivan sends letter to Cal. Attorney General

By Roger Straw, September 2, 2016
[Editor:  This post originally appeared with an error that has since been corrected.  C. Bart Sullivan is not an attorney.  The error was our own, not that of Mr. Sullivan.  We apologize for our error.  – RS]

Local Benicia engineer C. Bart Sullivan petitions Attorney General Kamala Harris, points out serious flaws in Valero CBR design

On August 9, local Benicia engineer C. Bart Sullivan wrote the following letter asking for help from California Attorney General Kamala Harris.  Sullivan’s comments focus on the lack of adequate safety setbacks and potential catastrophic dangers within Valero’s facility and nearby facilities in the Benicia Industrial Park should the plan be approved.

This approach is highly significant, showing that even if federal law prevents the City of Benicia from denying a permit based on rail impacts (a highly disputed contention), there are nonetheless enough significant and serious flaws in Valero’s onsite engineering designs to allow the City to refuse the permit and deny the project.

Text of Mr. Sullivan’s letter follows.  Mr. Sullivan has allowed the Benicia Independent to reprint this letter with the understanding that it is “his personal opinion, informational only, and is not to be construed as legal advice.”

August 9, 2016

California Attorney General Kamala D. Harris
Office of the Attorney General
1300 “I” Street
Sacramento, CA 95814-2919

RE: Valero – Crude By Rail Project

Dear California Attorney General Harris:

Benicia needs your help. I am deeply concerned about the safety of the Valero Crude by Rail Project and the oral dismissal of your legal advice to the city of Benicia by the city contract attorney, Bradley R. Hogin, Esq.

Based on the fact that Valero is the largest private employer in Benicia, the city staff is in favor of the project, and due to the oral legal advice provided by Mr. Hogin implying the futility of any action by the city, from my perspective, it appears that Benicia City Council will vote to approve the project.

From my personal expertise as an engineer with refinery experience, and based on expert opinions of professional engineers who have reviewed the proposed project design, Valero’s proposed crude-by-rail project design is extremely dangerous. Specifically, the engineering design does not allow for sufficient safety setbacks (the distance between the rail cars and oil storage tanks, etc.) to mitigate the likelihood of a chain reaction explosion within the refinery. Thus, due to the massive explosive potential of each rail car and the close proximity of the rail cars to other explosive fuel sources, it is highly likely that an explosion of only one rail car within the refinery will escalate into larger explosions extending beyond Valero property and into the city of Benicia.

Therefore, because of the lack of safety setbacks and the number of proposed rail cars entering the facility on a daily basis, the likelihood of catastrophic explosions at the refinery in Benicia puts hundreds, if not thousands, of Benicia residents directly in harm’s way. Unfortunately, the city has no way to mitigate this terrible danger, let alone mitigate other safety and health issues such as additional health impacts from the predicted increase in local air pollution.

Valero has categorically asserted that Benicia City Council cannot look to these unmitigable health and safety issues to deny the project due to the law of federal preemption. Based on Valero’s assertion, I wanted to bring comments from Mr. Hogin and Mr. John Flynn, Esq., Valero’s attorney, to your attention.1

In his testimony to the Benicia City Council, Mr. Hogin,  advised that the city had no recourse under federal preemption to deny the project, summarily dismissed your letter of April 14, 2016, and did not provide the city with any legal advice on how to challenge the project under Constitutional law. For example, Mr. Hogin did not provide any legal advice concerning how the proposed project could be challenged under the 10th Amendment or the Dormant Commerce Clause (DCC) using the rational basis test for the legitimate noneconomic purpose of protecting the health and safety of Benicia residents.

For your convenience, the following are recorded oral statements by Mr. Hogin and Mr. Flynn. I am deeply troubled by these statements, which I consider to be biased legal advice given to the Benicia city council April 18, 2016.

During the Benicia City Council meeting, Monday April 18, 2016, Mr. Hogin stated:

The Attorney General letter really missed the point. The issue here is whether a City can regulate rail impacts indirectly by imposing requirements on a shipper that address rail impacts, as opposed to impacts from the shipper’s facility, and the Attorney General opinion really doesn’t discuss that.

The Attorney General opinion only discusses cases where cities were addressing impacts from a transloading facility that was owned and operated by a private party.

In none of the cases where — that the Attorney General cites were any of the cities addressing rail impacts…”

Moreover, during the same Benicia City Council meeting, Mr. Flynn stated:

“As for the AG’s letter, I’m going to choose my words very carefully because I have a lot of respect for Kamala Harris and I have a lot of respect for her office, but that letter on the issue of preemption is dead wrong. Your attorney — the advice that you’ve been given by your attorney is exactly right. If you follow the advice that’s been given to you by Kamala Harris, you’ll be making a terrible mistake, a terrible legal error.

Somebody has suggested that Valero, because it’s a — it’s a refinery, doesn’t have any standing to ask for a Declaratory Order from the — from the Surface Transportation Board. That, also, is dead wrong.

You don’t have to be a railroad to get a Declaratory Order from the Surface Transportation Board, and that’s been proven on many occasions as a result of the fact that the Surface Transportation Board has, in fact, issued a number of declaratory orders as the result of requests made by nonrail carriers.

Valero is a shipper. A “shipper” is a term of art under federal law. So we do have standing to request that Declaratory Order.” (Emphasis added)

Even though Mr. Hogin briefly mentioned later in his discourse that the city could look to non-rail related impacts to deny the project, the above quoted transcript of the oral arguments do not reflect the serious and biased tone of the legal advice as orally presented to the Benicia City Council. Specifically, the oral presentation by Mr. Hogin implied that any legal recourse would be futile, and that the city of Benicia has no other option but to approve the project.

While the legal advice from both attorneys concerns me greatly, Mr. Hogin’s legal advice seems especially biased toward Valero’s position, and does not seem to be in the best interest of his client, the city of Benicia.

Thus, Mr. Hogin provided legal advice in a manner strongly advocating Valero’s position without formulating a defensible and well thought out argument for the case opposing Valero’s position for the city to consider.

Based on the above, I emphatically urge you and your staff to personally visit the city of Benicia to reiterate your position. I implore you to please help the city of Benicia realize that they have the power to protect their citizens, and without taking your advice they would be making a terrible legal error and would be breaching their duty to the people of Benicia and beyond.

Sincerely,

C. Bart Sullivan, E.E, J.D.


1 REPORTER’S TRANSCRIPT OF RECORDED PROCEEDINGS IN RE VALERO CRUDE BY RAIL PROJECT HEARING AND PUBLIC COMMENTS (http://www.ci.benicia.ca.us/vertical/sites/%7BF991A639-AAED-4E1A-9735-86EA195E2C8D%7D/uploads/City_Council_April_18_2016_Transcript.pdf)

NPR: In The Pacific Northwest, Oil Train Derailment Highlights Potential Dangers

Heard on All Things Considered
By Conrad Wilson, August 12, 2016 4:31 PM ET

The number of trains carrying oil along the Columbia River between Oregon and Washington could dramatically increase.

There’s a plan to ship more oil from the Bakken region of North Dakota to a proposed oil terminal in southwest Washington state.

An oil train derailment earlier this year has shown the potential danger faced by the region.

TRANSCRIPT________________________________________________

AUDIE CORNISH, HOST:

In the Northwest, the number of trains carrying oil along the Columbia River could dramatically increase, and that’s sharpened a debate over oil train safety in Washington state and Oregon. There’s a plan to ship more oil from the Bakken region to a proposed oil terminal in Washington. As Conrad Wilson of Oregon Public Broadcasting reports, a recent derailment has shown the potential danger the area faces.

CONRAD WILSON, BYLINE: On a Friday in early June, more than 40,000 gallons of Bakken crude spilled in a fiery oil train derailment that burned for 14 hours.

EMILY REED: It is an incredibly scary thing to have something like this happen so – and within our city limits, so close to our school.

WILSON: Emily Reed is the city council president in Mosier, Ore., the town where the derailment took place. About 500 people live in Mosier, and 100 of them were forced to evacuate when the oil train derailed. Reed points out the town’s deep in the Columbia River Gorge, a canyon with steep cliffs, where winds can reach 40 miles per hour during the summer.

REED: If the wind had been as it is today or more, we would have had a fire going up more than four of those cars, all the way through town and wiping out our town.

WILSON: Union Pacific was to blame for the derailment that caused the oil spill, according to a preliminary report by the Federal Railroad Administration. It says Union Pacific didn’t maintain its tracks properly. However, an inspector certified by that same federal agency checked the tracks and gave them the OK a little more than a month before the derailment.

JERRY OLIVER: It was unfortunate for the community.

WILSON: Jerry Oliver is a port commissioner in Vancouver, Wash., and a vocal supporter of what would be the largest oil-by-rail terminal in the country, known as the Vancouver Energy Project.

OLIVER: It’s also unfortunate because it gives a tremendous black eye to anything related to fossil fuels.

WILSON: If built, the terminal would more than double the number of mile-long oil trains traveling along the Columbia River, to about 46 trains per week. Serena Larkin is with the Sightline Institute, a Seattle-based think tank that opposes the oil terminal. She says until Mosier, oil train derailments were the kind of thing that happened somewhere else.

SERENA LARKIN: Mosier proved that we’re not any different. We are just as vulnerable. We are facing the exact same risks from oil trains that everyone else in North America is facing right now.

WILSON: Despite low oil prices, proponents of the project say the terminal is needed to reduce foreign imports and move domestic oil. For now, it’s relying on oil trains because there aren’t enough pipelines to move oil from North Dakota to the West Coast. Larkin says Mosier’s a turning point in the debate surrounding the Vancouver oil terminal and one that will weigh heavily on whether the project gets permitted.

LARKIN: It showed what the Vancouver oil terminal is really asking Northwest communities to shoulder in risk.

DAN RILEY: I strongly believe that all accidents are preventable.

WILSON: Dan Riley is vice president of government affairs for Tesoro, an oil company behind the project. Since the derailment in Mosier, he says there has been more scrutiny.

RILEY: I think that the criticism is not of the project, but of the rail system.

WILSON: Reilly says Tesoro has also pledged to only allow tank cars with thicker shells and other safety features designed to withstand a derailment into the Vancouver facility. But that’s done little to ease the safety concerns of firefighters and environmental groups. Ultimately, Washington Gov. Jay Inslee has the final say on whether the project gets approved. That decision could come later this year. Inslee’s acknowledged the risk oil trains pose. He says the Mosier derailment is among the things he’ll consider when determining whether or not he’ll permit the oil terminal. For NPR News, I’m Conrad Wilson in Vancouver, Wash.