by Carol Denney
For some people, calling the police is not a complicated matter. They need help, they see something they think is suspicious, and they pick up the phone. The police are there to help them, after all, and their taxes pay for police services.
In communities of color, for women, and for the mentally ill, this is very different territory. Racial bias, for instance, is obvious in many communities regarding traffic stops and searches, including in Berkeley, California.
Sendhil Mullainathan’s article on racial bias in the New York Times in January 2015 notes a study he conducted with Marianne Bertrand of the University of Chicago in which employers were “roughly 50 percent more likely” to call for an interview if the otherwise identical resumes had white-sounding names, such as Brendan, instead of stereotypically African-American-sounding names, such as Jamal. The names were the only different factor.
For Kayla Moore, a black, transgender woman struggling with mental illness whose roommate called Berkeley police the night of February 12, 2013, contact with the police was a death sentence. Within minutes, this charismatic, adventurous woman was strangely, suddenly dead. Within minutes.
The police had made an uneventful call around 11:00 p.m. that evening to Kayla’s apartment and left apparently without incident. They returned less than an hour later after finding what they thought was an arrest warrant for a “Xavier Moore,” 20 years older than Kayla.
While Officer Smith, who ran the searches, was downstairs arresting Kayla’s roommate on a separate outstanding warrant, Officers Tu and Brown tried to take a very frightened Kayla into custody, in a struggle they admit lasted “five to ten minutes” and involved several officers piled on top of her while she was face down.
Soon after being handcuffed and put in a “wrap” device, Kayla stopped breathing. No officer was monitoring her vital signs, as required by law. No officer began mouth-to-mouth resuscitation, although they did call for a CPR mask, which provides a protective barrier.
The police ruled that Kayla’s death was accidental and that force used by police was reasonable, a ruling which set off a firestorm of controversy. Advocacy groups against police misconduct, racial bias, and transgender issues have coalesced around Kayla, whose family is taking the Berkeley police to court this October over what they consider to be her mistreatment and wrongful death.
The Justice 4 Kayla Moore Facebook page is gathering a community of people ready to help.
It isn’t difficult to see what any jury will learn about this death:
* None of the officers who responded to the call that night had any training in crisis intervention.
* The warrant the officers claimed was for Kayla Moore was for someone else, weakening their rationale for taking Kayla into custody.
* The officers violated Training and Information Bulletin 234 which states, “Placing restrained persons in a face-down prone position for long periods of time should be avoided…”
* Training and Information Bulletin 234 concludes “never leave a restrained person in a face-down prone position without constantly monitoring … vital signs.”
* During the incident, according to Kayla’s family’s lawsuit, “Sergeant Philips and other Officers made discriminatory comments when they pejoratively referred to Decedent MOORE as ‘it’ and made irrelevant inquiries into Decedent MOORE’s gender identification. Plaintiff is informed and believes that Decedent MOORE’s status, as a transgender man, was a factor in the Officers’ decision to refuse to perform CPR properly.”
The officers neglected to monitor vital signs and provide CPR when Kayla stopped breathing.
An internal investigation states that Officer Brown commented that Kayla never mentioned she was hurt or having trouble breathing, a telling statement. People who can’t breathe are the least likely to communicate, which is why the police are obligated by law to monitor vital signs.
A person taken into custody might be unconscious, might speak a different language, or be unable to communicate medical needs for a wide variety of reasons. Being taken into custody is stressful under any circumstances, and someone with mental health issues, drugs in their system, or severe disabilities or medical issues is at an extreme disadvantage.
This disadvantage should not be deadly. The group supporting the Moore family’s effort to challenge the police’s determination that Kayla’s death was an accident and that the police’s use of force upon her was reasonable are joining together to promote the decoupling of mental health events from police services. They state:
“We envision non-police mental health care that is accessible to all, especially people of color, trans women, disabled people and others who, like Kayla Moore, are so often criminalized for simply existing.”
At least half of the people killed by police each year in the United States are mentally disabled, according to a recent investigation by the Portland (Maine) Press Herald and Maine Sunday Telegram. Police officers who assume citizens who don’t comply with their orders are willfully resisting may not be taking mental illness or disability into account when an encounter escalates, making de-escalation training an important, often under-used tool which can save lives.
This ratio is worth meditating over considering that the City of Berkeley’s budget for mental health is less than half its budget for police services. Utilizing mental health resources instead of police in mental health-related episodes might not only save lives; it might save money, too.
Our communities, united, can lobby more effectively for a change in policing, especially in the wake of Ferguson and the wave of black lives lost to police violence highlighted by the Black Lives Matter movement. We can model new ways to address community issues and require the police in our communities to adopt safe, sensible ways to address mental illness, which is not a crime.
For transgender people, the issue of police conduct is even more complex. What is considered “eccentric behavior” in one gender is accepted in another. People are jailed according to gender, making those in the Bay Area of indeterminate or ambiguous gender at risk of being wrongly identified and wrongly situated in custody.
Transgender people, if they are legally barred from changing genders on their official identification, often have identification at odds with their transgender life, complicating matters as in Kayla’s case.
Police officers who, as in Kayla’s case, insist on referring to a transgender woman as a man (the officers also referred to her as “it”) may place her in a holding cell with men. They are entitled to strip-search her in certain circumstances.
And as they did in Kayla’s case, the police may subject her to the special humiliation of making ugly comments about her gender identity. It is no wonder any transgender person may have a special incentive to try to avoid arrest.
Lynn Riordan, a transgender woman and longtime Berkeley resident, relates a moment in her life when a woman tried to attack her and the Emeryville police refused to take a police report.
“I went back a week later,” stated Riordan, in an effort to document the incident. She went to the Emeryville Police Station and was left for a long time in a little room where she finally surmised they were probably watching her. She mused aloud that if someone would only take a police report she could then go home. A police officer promptly entered the room, took a report, but advised her that the recommendation would be that the Alameda County District Attorney take no action.
“There’s often this perception against oppressed groups that no crime can happen against oppressed groups,” states Riordan. “It’s not a crime no matter what happens. If a person belongs to more than one oppressed group, then it’s worse.”
The Police Review Commission in Berkeley unanimously sustained the complaint of Officer Brown’s violation of Information Bulletin 234, which required police to monitor Kayla’s vital signs. But we would never have known that fact if the findings, considered a personnel matter under state law and thus private, hadn’t been leaked to the community by an unknown person.
The Berkeley Police Department (BPD) was livid about the leak, and refused for a period of time to honor its obligation to cooperate with the Police Review Commission. This refusal took place despite the fact that the sustained complaint resulted in no discipline from Chief Michael Meehan. If findings are submitted more than 120 days after an incident, no discipline is permitted.
While the BPD’s internal investigation concluded that Kayla’s death was accidental and that the officers’ use of force was reasonable, an independent investigation by Berkeley Copwatch, Coalition for a Safe Berkeley, and the Amnesty International chapter at UC Berkeley resulted in a different conclusion:
“As a result of the findings of this investigation, we recommend:
- Policy changes in the way officers respond to people experiencing mental health crisis or mental health variance.
- Disciplinary action be taken against the officers involved in the in-custody death of Kayla Moore.
- Changes in how investigations are conducted by the Berkeley Police Department in cases involving deaths of civilians.”
Paul Kealoha Blake is co-founder of the East Bay Media Center (along with Mel Vapour) as well as a commissioner on both the Homeless Commission and the Berkeley Mental Health Commission. He agreed to speak strictly on his own behalf as someone who has spent years studying Berkeley’s police policies regarding people with disabilities, saying he believes that the officers who responded to Kayla Moore that night entered the scene with a biased perspective.
“They had no training,” Blake states, referring to crisis intervention training commonly referred to as CIT which none of the responding officers had taken. He points out that there was no serious threat, no weapon, no hurry.
“It’s not policy,” he adds, meaning rushing into someone’s home in such a circumstance, especially with a dubious warrant. “Policy is proximity plus time. They could have taken all the time they wanted. But they didn’t. No one was in danger.”
Blake believes that “bias opened the door” to Kayla’s apartment, essentially creating the circumstances that brought about her death, accidental or otherwise.
Someone connected to the internal police investigation, which would otherwise have been kept secret from the public, thought there were serious enough problems in the details of the police conduct that took place February 12, 2013, that they deliberately leaked it. The Investigative Reporting Program at the University of California Graduate School of Journalism and the Daily Californian thought the revelations were important enough that they decided to publish them.
Berkeley voters, fed up with police misconduct, created the Police Review Commission (PRC) in 1973 to exert community control and determine community standards for their officers. Since that time, the Berkeley PRC, once considered a strong model of police accountability, has steadily lost ground.
PRC hearings happen behind closed doors and the community has no way of knowing what happens, thanks to a legal decision ten years ago known as Copley Press v. Superior Court which held that “records of an administrative appeal of sustained misconduct charges are confidential and may not be disclosed to the public,” according to the ACLU.
The legal decision prevents the public from learning if police officers have been disciplined as a result of misconduct, undermining the whole purpose of the PRC and the trust between the police and the community expected to cooperate with officers.
Kayla Moore’s family and friends still miss and mourn her. Those who relate to her experience as a transgender woman, as a black woman, and as someone struggling with mental health and other health issues have written passionately about her loss, sparking a groundswell of support of the need for change in police policy.
The militarization of the police, and the constant pressure from weapons manufacturers and police unions for more and more innovative weaponry, is being countered by a grief-stricken but determined group of citizens determined to teach police to stop, to listen, and to be patient with people they don’t, or won’t try to, understand.
To sign up for email updates about Kayla Moore’s case, contact: CRivka@sonic.net or berkeleycopwatch@yahoo.com and ask to join the Justice 4 Kayla Moore list.