By Rachel Loyd 12/7/16
Two lawyers have dominated Oakland’s legal battles for more than two decades and they couldn’t be more different. One sues police departments. One defends police officers. One is white. One is Black. But they share a common purpose: They represent people who they believe otherwise wouldn’t have a fair chance to speak for themselves.
Among the most controversial cases on which attorneys John Burris and Michael Rains have crossed paths are the trials for the “Riders,” in which Oakland Police Department (OPD) officers were accused of using excessive force and falsely arresting civilians; the trials regarding the death of Oscar Grant, an unarmed BART passenger who was fatally shot by a BART police officer; and the current lawsuits filed against several Bay Area law enforcement agencies by a former teenage sex worker known in the media as “Celeste Guap.”
Burris, a civil rights attorney, said the historical mistreatment of Black people by police agencies across the country propelled him to represent people abused by police. In Burris’s early career, he worked as a deputy district attorney in the Chicago area, then became a civil rights attorney in the 1980s. Today, Burris’ office is based in Oakland, where he has handled hundreds of civil rights cases since 1985.
“There are not a lot of lawyers breaking down their doors, to represent African-Americans or even Latinos in police cases. We’re a small band. So I’m honored that I get to do it,” he said.
Rains, an attorney who represents members of law enforcement, started his professional career as a police officer in Southern California. Being on the receiving end of what he said were unfair investigations inspired him to leave law enforcement in 1979 and instead represent police officers in and out of court. His office is based in Pleasant Hill and handles collective bargaining issues, criminal defense and internal discipline cases.
Rains said modern police officers operate under the scrutiny of people recording their actions using cellphone cameras and sharing those videos on social media, which makes their jobs more challenging than ever. “In today’s world, everybody knows a lot about the police. In today’s video world, they see and know more than they ever did before,” he said. That’s why, Rains said, it’s important for police departments to treat officers fairly and for them to have a good attorney.
Although Rains and Burris don’t always face off directly in the courtroom because of the different types of law they practice, they’ve crossed paths in Oakland for decades.
In 2000, the Oakland Riders trial brought Burris and Rains to the center stage of the city’s debate over policing tactics, although they represented related parties in separate capacities. Burris represented 119 residents who sued the city of Oakland, alleging that four Oakland police officers who called themselves the “Riders” had beaten people, planted drugs on them and made false arrests. Rains handled the criminal defense of one of the officers, Clarence “Chuck” Mabanag, who was accused of allegedly using excessive force and writing false reports.
The Riders affair came to light after a new Oakland police officer named Keith Batt complained that officers Mabanag, Jude Siapno, Mathew Hornung and Frank Vasquez were allegedly brutally beating residents and had encouraged him to do it, too. All four officers were immediately fired, and were brought up on a total of 63 charges, including kidnapping, beating and falsely arresting at least ten men.
Although Vasquez fled the country, the other three went to court in what was then Alameda County’s longest criminal trial. It lasted two years, including a retrial.
Rains recalls his defense of Mabanag in the criminal trial as one of his most challenging cases to date. He said he was most concerned about the difficulty of convincing a jury of his client’s innocence, because he felt many would have already assumed he was guilty. Rains imagined that they would think: “If a cop gets charged, he must’ve done it, because you know the DA [district attorney] doesn’t charge cops unless they do it.”
Additionally, Rains said, most people selected to be jurors had previously experienced a negative encounter with an Oakland police officer. Vasquez becoming a fugitive didn’t help Mabanag’s case at all, he said, and neither did former OPD officer Batt’s court testimony, which Rains thought could be enough to convince jurors the defendants were guilty.
Ultimately, Mabanag and Siapno avoided conviction on all charges due to a hung jury in both the original trial in 2003 and a retrial in 2005. Hornung was found not guilty on all counts.
In a related civil suit against the city filed in December, 2000, Burris represented Delphine Allen and the 118 other residents who claimed that had been physically abused or detained by one or more of the officers.
According to the text of the lawsuit, on June 27, 2000, officers Mabanag, Siapno, Hornung and Vasquez stopped Allen and said they would “find something to put on you,” implying the officers would use false evidence to take him to jail. The complaint continues, “When Plaintiff objected to the false drug charges and the planting of evidence by Defendants, he was subjected to excessive force, beaten and pepper sprayed by Defendant Mabanag who was acting in concert with Defendants Vazquez, Siapno, Horning.” Next, the document continues, “Allen was then put into a police vehicle and driven to another location where he was subjected to excessive force and beaten by Defendant Siapno.”
According to the suit, the following month, all charges against Allen were dismissed by the Alameda County District Attorney’s Office.
Although Burris started his suit with only one plaintiff, soon more people began to come forward to speak about their violent experiences with the police. “I realized early that this was the case that we can make a major social statement, that we have the potential here to bring about reform within this department,” Burris said.
“We were able to talk about issues that were dear to me, like racial profiling,” he continued.
Burris and his clients ultimately settled with the city for $10.9 million.
In 2003, the presiding judge in the civil suit, Judge Thornton Henderson, assigned the department 51 reform tasks, including improving internal affairs procedures and criteria related to when officers should draw their weapons. But the reforms are taking years to complete. In fact, the department is still under federal monitoring by Robert Warshaw, a former Rochester, New York police chief and current U.S. Department of Justice auditor, and Judge Henderson.
Burris calls the settlement one of his distinguishing accomplishments. “That had not been done anywhere else in the country by plaintiffs lawyers,” he said referring to how the class action lawsuit led to many reforms of the department. Burris said he felt hopeful that the department would move towards being more honorable—“And then the sex scandal hit.”
Burris was referring to accusations by a young woman known in the media as Celeste Guap, who is suing the city of Oakland, the OPD and several other local law enforcement agencies based on allegations that approximately 30 officers sexually exploited her when she was a teenage sex worker. Among the allegations are that some officers had sexual contact with her when she was underage and offered to protect her from jail time in exchange for sex. She also alleges that their superiors failed to report her exploitation.
A police officer’s suicide note in September, 2015, led to an OPD internal investigation of officers’ contact with Guap; more than 30 Bay Area law enforcement officers are believed to have been involved in some way. In the wake of the scandal, former OPD Police Chief Sean Whent resigned in mid-June, and two subsequent interim chiefs stepped down within the next two weeks. Oakland has been without a police chief since then.
By September, 2016, city officials announced the firings of four police officers and that criminal charges had been filed against five Oakland police officers. Charges included felony counts of oral copulation with a minor, and misdemeanor charges of engaging in prostitution and unauthorized searches of criminal justice data and computer systems.
Burris is representing Guap in a $66 million claim against the city of Oakland and the OPD, which was filed in September.
Rains is not handling the criminal defense for any of the charged police officers, but he is representing many Bay Area police officers in union hearings to defend them from losing their jobs. At an unplanned press conference in October, Rains told reporters that Guap instigated contact with the police officers. But Burris said even if she did, that cannot make anyone act dishonorably, and officers need to take responsibility for their own actions.
Burris said that in representing Guap, he hopes to achieve a financial victory for her, but more importantly, hopes she will develop a lifestyle outside of the sex trade. “Here, money is not going to be the ultimate answer for her, because you … want her to want to try to lead the kind of life that we think is self-sufficient, that is not involving criminal conduct, like the sex trade,” he said.
“If I could make that happen, I think I’d have a successful conclusion,” he continued. “Now, maybe I cannot do that. Because, ultimately, she’s 19, 20 years old. She gets to make her own decisions about her life.”
Perhaps the most contentious public battle the attorneys were ever caught up in were the trials regarding the death of a young man named Oscar Grant.
Right after midnight on New Year’s Day, 2009, BART police officer Johannes Mehserle responded to a call for backup at the Fruitvale train station. Grant, 22, and his friends had gotten into an argument with another group of people on the train. Mehserle and other BART police officers detained the young men, making them sit on the ground on the station’s platform. In the process, Johannes Mehserle fatally shot Grant in the back, a death caught on video by BART passengers with cell phones.
People were outraged. Thousands protested in the streets of Oakland. In 2010, Rains defended Mehserle in a criminal trial in which Mehserle faced one count of involuntary manslaughter and one count of voluntary manslaughter. Burris filed lawsuits against BART in 2010 on behalf of Grant’s mother, daughter and Grant’s friends, who were also detained.
While both attorneys agree that Mehserle was trying to detain Grant after the fight on the train, their arguments diverged on the details of what happened next—most critically over the issue of why Mehserle fired his gun. Burris said he thinks he did it deliberately; Rains said he mistook his gun for his Taser, an electroshock weapon.
According to Rains, Mehserle “made a bad mistake” due to him being only newly-trained in using the Taser. The video evidence, he said, showed that Mehserle, “after announcing he intended to tase Oscar Grant, had started pulling out his gun. He had trouble to get his gun out because he was using the wrong thumb movements to get the gun out. He was using movements to pull a Taser out of its holster. There are different thumb movements.”
Burris disagreed. “I thought that the whole issue of the Taser was contrived,” he said.
“I thought there was sufficient evidence to prove voluntary manslaughter,” he added.
They do agree on one thing: That the use of civilian camera footage made this police misconduct case extremely high-profile. “This was the first time that it was so blatantly on video camera that everybody could see. And there was this huge, huge sense of outcry. And so that contributed to the galvanizing of the public and the outcome of getting criminal charges filed,” Burris said.
“Every time [officers] use physical force and it becomes subject of a video recording, whoever makes it, it’s never pretty,” said Rains. “Today we’re seeing more officers accused of misconduct because of video evidence. We see more officers charged criminally, and we see more civil suits coming down the pike over the uses of force.”
Mehserle was convicted of involuntary manslaughter, but not the more serious charge of voluntary manslaughter, and sentenced to two years in prison. He was released seven months later due to time served and good behavior. The street riots, which had begun before the trial, continued in reaction to Mehserle’s sentence.
Rains felt the verdict was too harsh. “I thought he should’ve been acquitted,” Rains said. “He had only been trained on the Taser three weeks earlier and had only pulled the Taser out of its holster one time in the three weeks and not even in this kind of a stress-inducing situation.”
“I thought it was clear” that he’d intended to pull his Taser, Rains continued. “The video analysis showed it was clear.”
But Burris was disappointed by the conviction for a lesser crime. “He didn’t get much of a sentence. He could’ve easily gotten six, eight, nine years, but he got a slap on the wrist,” he said. “Then on top of that the judge didn’t even send him to prison! He got to stay in the county jail. I took his deposition in county jail and he was treated like a king! That’s the other aspect of the work that’s disappointing—special treatment to police officers.”
The trial did lead to some reforms, including requiring police officers to wear their Taser on the opposite side of their body as their gun.
Burris said he believes all clients are flawed, but his job is to defend them despite their shortcomings. “In this business, no plaintiff that I deal with is perfect. They all got issues. People got issues, right?” he said. “And so part of your assessment in handling that case is being able to understand the issues that a person has, and then juxtapose that against what their rights are. And then try to get some resolution—positive resolution.”
Rains agrees that as an attorney, he, too, sometimes represents clients that he disagrees with. He said he reminds himself: “Mike, your job isn’t to change them or preach to them about why their views on life are wrong or should be changed. My job is to make sure that I am doing everything within my power to do what is right for them.”
And although both attorneys represent people on opposite sides, they respect one another’s work.
Rains said Burris is a formidable lawyer. “He’s had great success, frankly, suing a fair number of my clients.” Rains said. “I can tell you that [when] my clients call me up and say, ‘Oh my God, I’m getting sued by Burris,’ they’re not happy about that! Because they know that John is going to be a very aggressive lawyer and is going to pursue that lawsuit very intently.”
Burris said he has developed respect for Rains after witnessing the work he’s done for Black police officers. “I also know that Black officers are discriminated against, and that they don’t get the same form of justice that white officers do,” said Burris. “I’ve been impressed with how well he’s represented them.”
Both attorneys pay it forward by working with the communities they serve. Rains teaches an internal affairs course to Bay Area police superiors, training them on how to conduct fair investigations. Rains said that he teaches other officers based on his own experience. “I learned the hard way, because I was on the receiving end of a fair number of complaints. I know when I was treated fairly, and I knew when I wasn’t,” Rains said.
The biggest problem within police departments, Rains said is internal affairs investigations that drag on longer than necessary. “If that officer is preoccupied day in and day out whether he or she is going to have a job tomorrow, maybe their thinking is going to be off,” he said. “Maybe they are going to be preoccupied and not make the right decision concerning the immense power of life and death.”
Burris said he hopes to one day pass the baton to future lawyers who will continue the fight for justice. Last month, he spoke to a group of Oakland High School students who aspire to become civil rights attorneys.
“At one point in time, I sat where you are sitting now,” he told them. “What I get to do is take something bad that has happened to someone and see if I can bring some form of justice to them. Justice is like beauty sometimes. It’s in the eyes of the beholder. … It’s not perfect, but it is important to have someone hear what you have to say, and I get to bring that story.”