Facing a fresh claim of excessive force by a police officer and ongoing concerns about transparency within the Palo Alto Police Department, the City Council will consider on Monday new measures to improve oversight and revisit the department's abrupt decision in January to encrypt all police dispatch communications.
The council's discussion will come three months after Palo Alto switched to encrypted radio communications, a move that was made without any council direction and no advance warning to the community. City Manager Ed Shikada and Police Chief Robert Jonsen have consistently said that the move was made to comply with an October directive from the state Department of Justice, which requires agencies to protect personally identifiable information (including names, Social Security numbers and driver's license numbers) from being publicly transmitted.
The state order gave participating agencies two options: encrypt all communications or develop policies to protect the personally identifiable information while keeping the communication channels open. The memo also specified that an agency could file an implementation plan by last Dec. 31 if it did not intend to comply immediately.
Palo Alto opted for the simpler and more dramatic option of flipping the switch to full encryption in January — a move that has since been replicated by all Santa Clara County cities except Santa Clara and Milpitas.
The April 5 meeting will offer the council its first opportunity to discuss and possibly revise the new encryption policy, which has been strongly opposed by this publication, the Palo Alto Daily Post and The Mercury News because it removes the ability of newsrooms to monitor police scanners and gives the Police Department almost complete control over which incidents get reported to the public.
In explaining the decision to encrypt, Jonsen highlighted in January the various challenges of adopting alternative approaches to protecting personally identifiable information, including having the police officer use a cellphone or a different frequency to transmit that information. Requiring officers to switch frequencies in the middle of a police action would complicate their ability to transmit information quickly, creating a safety issue, he said.
He also noted at that time that to develop alternative policies would be complex, potentially expensive and time-consuming.
At the same time, the city is leaving the door open to further tweaks to the radio policies. Earlier this month, Jonsen sent a letter to the Department of Justice requesting permission to switch back to a nonencrypted channel while the city considers other options. (As of Wednesday, the city had not received a response from the department, Jonsen said.)
The change of direction, Jonsen wrote, is requested "to allow for great transparency with the public." He acknowledges in the letter, however, that switching back would result in personal information being released on a nonencrypted channel.
"The city of Palo Alto would remain on a publicly accessible channel until Dec. 31, 2021, unless a viable alternative has been identified before that date," Jonsen wrote.
A new report from the Police Department notes that department staff are "currently exploring the feasibility of alternative options for complying with these state and federal security requirements while simultaneously providing for as much transparency with radio transmissions as legally possible." Yet it also underscores the challenge of adopting these approaches.
"Of the other agencies in the county already using encrypted radio channels, none considered alternative options due to the numerous operational and tactical challenges they present; as a result, there is no local model using alternative options that staff can readily replicate," the report states.
Any effort by Palo Alto to move away from encryption may also complicate its ability to communicate with surrounding departments, said Eric Nickel, executive director of the Silicon Valley Regional Interoperability Authority and former Palo Alto fire chief.
Nickel, who has been helping various police agencies come into compliance with the new DOJ mandate, said that when Palo Alto switched to encryption, it lost many of the interoperability features that it had previously enjoyed with its mutual-aid partners, Mountain View and Los Altos, which had not yet encrypted their radio transmissions.
"If some are encrypted and some are not, there are a lot of interoperability features that we can't use," Nickel told this publication.
As a result, dispatchers had to do extra work to establish "talk groups," Nickel said. Any agency that switches away from encryption while all of its neighbors encrypt would face the same challenge.
Furthermore, when an agency with encrypted radios communicates with one with nonencrypted radios, the communication defaults to nonencrypted communication and, as a result, the agencies fall out of compliance with the DOJ order when personal information is transmitted, Nickel said.
While Nickel said that the choice of whether or not to encrypt is ultimately up to each individual agency, his agency has been working to ensure that these decisions do not compromise the abilities of police departments throughout the county to work together.
He also noted that it is possible to encrypt public communication while still maintaining some transparency. One way to do that is to stream the radio traffic on a computer server and give only certain people — such as members of the media — access to that server. That method, which is used in Orange County, would allow authorized users of the systems to log on to the server through their computers or phones and listen to the police communications.
"We're trying to come up with workarounds that would meet the intent of the Department of Justice, while keeping the interoperability in place and meeting the public policy concerns (relating to transparency) of some of our agencies," Nickel said.
On racial justice and use of force
The council discussion of radio encryption comes at a time when the city is reviewing numerous policies within the Police Department in response to community concerns about the use of force and racial justice. The department has already revised its use-of-force policies to ban techniques that restrain airflow and to emphasize de-escalation. The department is also building a portal to share data about individuals with whom police officers make contact, consistent with the requirements of Assembly Bill 953. While the legislation, also known as the Racial and Identity Profiling Act, requires all state law enforcement agencies to publish the data by April 1, 2023, the department plans to start releasing the information well before the deadline.
The city is also gradually expanding the scope of the city's independent police auditor, OIR Group. While the auditor has traditionally reviewed incidents that involve Taser use, police shootings or citizen complaints against the department, the council has recently directed the firm to review other types of use of force. This includes incidents in which an officer uses a baton, a chemical agent, a "less-lethal" projectile or a K-9, as well as any other cases that involve serious injuries.
Among the cases that the auditor will be reviewing is the June 25, 2020 attack by a Palo Alto police K-9 on a Joel Alejo, who was sleeping in a backyard shed in Mountain View and whom the police mistook for a suspect in a kidnapping. The incident has prompted a claim against the city of Palo Alto from Alejo, who is now seeking $20 million in damages from the city. It has also prompted public calls for the firing of police Agent Nick Enberg, who can be seen on recently released body-worn camera footage yelling instructions at the animal while it is attacking Alejo.
The Rev. Jethroe Moore, president of the San Jose/Silicon Valley NAACP, is among those who called for Enberg's firing. In a public letter this week, he called Enberg's action "an act of aggression with intent to do harm."
"There is an urgent need to root out and to identify the departmental deficiencies that allowed these officers to remain on the force in the first place," Moore wrote in a public letter to city leaders.
In another recent shift, the OIR Group has recently started evaluating the department's "informal inquiry reviews'' — public complaints that don't entail full formal investigations by the Police Department. According to the latest report from OIR Group, these include matters such as "misunderstandings or minor issues of discourtesy."
The council has yet to decide, however, on whether to restore to the police auditor the power to review internal complaints within the Police Department. While OIR Group does so for other cities, the council voted in December 2019 to explicitly remove these complaints from the auditor's purview, thus ensuring that they will be shielded from public disclosure. The council made the change just as OIR Group was reviewing an incident in which a white officer allegedly used a racial slur in 2014 while talking to a Black employee, who has since left the department.
In November, as the council considered ways to improve accountability in the department, members agreed to revisit the issue of internal complaints — a task that it assigned to its Policy and Services Committee.
The Monday meeting will also give the council a chance to debate other reform measures, review recent crime statistics and discuss the impacts that recent staffing changes in the department, which saw 13% of its sworn positions eliminated last year because of budget cuts. According to the new report from Jonsen, the department now has 126.5 full-time positions and nine part-time positions, down from 150.5 full-time positions and 24 part-time positions in 2020.
"These reductions have resulted in service impacts to the community throughout the division in the Police Department," the report states. "Where possible and necessary, responsibilities previously handled by reduced resources have been absorbed by the remaining staff members. The adaptive team has adjusted to learning new tasks and expanding work capacity through this unusual year."