Undercover CHP Officer “Justified” in Pulling Gun at Protest: Photographer

Overall use of force by police during East Bay protests faces criticism and possible federal action

A photographer who saw an undercover California Highway Patrol officer point a gun at a crowd during a protest in Oakland said the action seemed to be a justified reaction to what had happened moments before: A protester had hit his undercover partner in the head, and the crowd seemed to be moving in.

"Yeah, it was an appropriate response," Michael Short, 38, of Oakland and a freelance photographer for the San Francisco Chronicle told NBC Bay Area on Friday, two days after the officer pulled the gun at Harrison and 27th streets in Oakland. "I would have been scared if I saw my partner get knocked to the ground. He was justified. I felt threatened by the protesters, too."

He said, before the weapon was pulled, the plainclothes officers had been trying to back away from the crowd, when two protesters shouted, "They're cops, they're undercovers!" At that point, someone in the crowd took off one officer's hat and threw it around, Short said. And then a protester hit the officer in the head.

At a news conference this week, a CHP chief said he was investigating the incident, but in general stood by his officers’ conduct.

The tone of the protests, in response to recent non-indictments of white police officers in the deaths of black men, began to take an ugly turn on Saturday night in Berkeley, when police began to fire tear gas into crowds after small pockets of demonstrators seriously damaged and looted buildings, and set fires in the streets. Over the next few nights, protesters who said they weren't looting told NBC Bay Area they were jabbed with police batons. Several reporters and news photographers have been detained, injured and pepper sprayed during a CHP roundup in Berkeley over the weekend.

The Society of Professional Journalists of Northern California wrote a letter to the mayor and police chief in Berkeley condemning the "outrageous conduct of law enforcement officers." And the organization is drafting a similar letter to the CHP. In turn, police have responded that some protesters have gotten violent and out of hand, as well.

On Friday, Rachel Lederman, president of the National Lawyers Guild, San Francisco Bay Area Chapter, said this overall use of "intimidation and use of force" by police violates the demonstrators First and Fourth Amendment rights.

She added: "We are also concerned about CHP's dangerous and indiscriminate use of so called less-lethal munitions during the demonstrations. All of these munitions are potentially lethal or can cause extremely serious injuries and it is unlawful to shoot them into a crowd and at people's heads."

As for the CHP, Lederman said "we are very disturbed that CHP had masked undercover officers with guns provoking the crowd, and actually drawing firearms without even identifying themselves, which is obviously extremely dangerous and could cause crowd members to justifiably defend themselves from these masked armed men."

But Lederman said her guild "will be following up" with Oakland police and the federal monitor, because that department is "responsible for ensuring that mutual aid acts lawfully and in accordance with the OPD Crowd Control Policy."

That policy is part of a federal order that stems from a misconduct settlement that came as result of use of force issues during the Occupy and Oscar Grant protesters in 2010 and 2011.  She said Oakland police can't hide behind mutual aid doing "their dirty work."  Oakland police did not respond for comment.

The CHP also did not respond to email and phone questions on Friday by NBC Bay Area.  However, this week, the CHP defended the agency's use of firing rubber bullets into the crowd, saying that they were just trying to protect themselves from protesters who were hurling bricks and M80s at them and their helicopters.

Golden Gate Division Chief Avery Browne held a news conference with reporters on Thursday, and stood by an old police tactic where officers dress like the crowd to gather intelligence. In addition, it was raining on Wednesday night, and the CHP helicopter wasn't flying overhead.

And much of Browne's version, matched Short's  account, that the officer pulled a gun after his partner had been hit in the head.

Short said, after the officer's partner was hit, the undercover officer, wearing jeans, a brown hoodie and a black Champion vest, pulled out a baton and shouted "Get back, get back." When the crowd didn’t listen and even began to move forward, the officer took his gun out – the image captured on camera.

Meanwhile his partner, dressed in a black mask and gray jacket with a hood, wrestled on the sidewalk with the protester who had struck him on the head. At the news conference, Browne said that man was arrested on suspicion of felony assault on a peace officer.

Browne said the officer later told him: "Chief, I didn't know if I was going to make it out of this thing alive."

Browne also told reporters at the news conference that his officers identified themselves, as is department policy.

But Short told NBC Bay Area that he never heard the officers identify themselves as police officers.  And Short said that neither officer pulled out a badge, as evidenced in the photographs he took.  And at no time did the officers identify themselves as police, Dylan, a demonstrator, told Bay City News.

Short doesn't know how the masked protesters figured out the two plainclothes officers were police. But he said they stood out because they seemed "fit" and "better dressed" than most of the demonstrators.

At the news conference, Browne said the actions of the two plainclothes officers, who he did not identify, would be investigated. But he said he believed they acted appropriately and are on active duty. Both are detectives in the agency's Bay Area auto theft unit, he told reporters.

Still, Browne acknowledged that having a gun pointed at your face at a protest to voice that "Black Lives Matter" could be upsetting.

"The highway patrol is extremely cognizant and very sensitive to the display of a gun," Browne said at the news conference. "It's very disturbing and upsetting to individuals who are attempting to protest, and we recognize that."

Bay City News contributed to this report.

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