P R O C L AM AT I O N

CALLING A SPECIAL M E ETING OF THE

BERKELEY CITY COUNCI L
In accordance with the authority in me vested, I do hereby call the Berkeley City Council in special
session as follows:

TUESDAY, OCTOBER 6, 2015

5:30 P.M.
Council Chambers 2134 Martin Luther King Jr. Way
TOM BATES, MAYOR
Councilmembers:
DISTRICT 1 LINDA MAIO
DISTRICT 2 DARRYL MOORE
DISTRICT 3 MAX ANDERSON
DISTRICT 4 JESSE ARREGUIN

DISTRICT 5 LAURIE CAPITELLI

DISTRICT 6 SUSAN W ENGRAF
DISTRICT 7 KRISS W ORTHINGTON
DISTRICT 8 LORI DROSTE

Preliminary Matters
Roll Call:

Worksession:
1.

Stanford Study: Electronic Control Weapons Study (e.g. Tasers )

From: City Manager
Contact: Dee Williams-Ridley, City Manager, 981-7000; Matthai Chakko, City
Managers Office, 981-7000

Public Comment Items on this agenda only

Adjournment
I hereby request that the City Clerk of the City of Berkeley cause personal notice to be given to each
member of the Berkeley City Council on the time and place of said meeting, forthwith.
IN WITNESS WHEREOF, I have hereunto set my hand
and caused the official seal of the City of Berkeley to be
affixed on this 24th day of September, 2015.

Tom Bates, Mayor

Public Notice this Proclamation serves as the official agenda for this meeting.

ATTEST:

Date: 9/24/15
Mark Numainville, City Clerk
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Tuesday, October 6, 2015

WORKSESSION AGENDA

Page 2

01
Worksession Item

Office of the City Manager

WORKSESSION
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Matthai Chakko, Assistant to the City Manager

Subject:

Stanford Study: Electronic Control Weapons Study (e.g. Tasers )

SUMMARY
On May 6, 2014, the Council directed the City Manager to research and report back to
the City Council regarding the history, potential benefits, impacts, and possible
unintended consequences of allowing Berkeley police to carry and use Tasers, and to
include in the report information regarding other jurisdictions best practices and
protocols, an analysis of changes in technologies, and the feasibility of doing a pilot
program, with further direction that the City Manager also consult with the Police Review
Commission and the Community Health Commission.
After an extensive search for an organization that could best perform the necessary
research and analysis, the City engaged the Stanford Criminal Justice Center (SCJC) to
conduct such a study. The work was done by the SCJC on a pro bono basis. The
selection of this organization was made with consultation from representatives of the
two commissions.
Founded in 2005, SCJC serves as a research and policy institute focused on the
criminal justice system. Its efforts are geared towards policy research for the public
sector, as well as providing pedagogical opportunities to Stanford Law School students
with academic or career interest in criminal law and crime policy. The report was written
by Jena Neuscheler and Akiva Freidlin and overseen by SCJC Executive Director
Debbie Mukamal and Professor David Sklansky. The work on the study began in
January and concluded this summer.
The full SCJC study is appended to this report.
CURRENT SITUATION AND ITS EFFECTS
The Stanford Criminal Justice Center examined a number of issues involving electronic
control weapons, a term that also includes devices with the trade name Taser. The
centers report looked at the devices themselves, the health effects of ECWs, how and
when they are used, and effects on public safety.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

Stanford Study: Electronic Control Weapons Study (e.g. Tasers )

WORKSESSION
October 6, 2015

The center was not asked to make a recommendation. Their research has shown that
the extent to which local jurisdictions make decisions to use electronic control weapons
depends on the values and needs of the particular community.
Part 1 includes a summary of the development of the technology, an analysis of how the
devices work, and their reliability. The study also examines the health effects of the
devices.
Part 2 examine how and when ECWs are used. The section also examines how widely
they are used, who they are used upon, legal standards and use of force policies.
Part 3 assesses questions of whether ECWs replace use of lethal force, reduce injuries
to officers, reduce non-lethal injuries to suspects and whether there have been study of
other ways to achieve these goals.
BACKGROUND
The City Managers Office issued an RFP to conduct the research in the Council
referral. Proposals were reviewed by a panel that included representatives from the
Police Review Commission, the Community Health Commission, the Police
Department, and the Finance Department. The panel consensus was that the proposals
did not adequately respond to the RFP or were too costly. The Stanford Criminal Justice
Center has a highly regarded reputation for neutral, thorough and insightful research.
They have done similar projects for other jurisdictions. The panel that included
representatives of the two commissions convened to meet with and ask questions of the
entire SCJC team. The panel supported the use of the SCJC to conduct this study.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the
subject of this report.
POSSIBLE FUTURE ACTION
To be determined by Council.
FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
Unknown.
CONTACT PERSON
Matthai Chakko, Assistant to the City Manager, (510) 981-7008
Attachments:
1: Stanford Criminal Justice Center Report on Electronic Control Weapons (ECWs)

Page 2

Report on Electronic Control Weapons (ECWs)

Submitted to the City of Berkeley

June 2015

Stanford Criminal Justice Center

at Stanford Law School

Written by Jena Neuscheler and Akiva Freidlin

Under the guidance of

Professor David Sklansky and Debbie Mukamal

Copyright 2015 Stanford Criminal Justice Center

All rights reserved.
Stanford, CA
Stanford Criminal Justice Center
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305

Report on Electronic Control Weapons (ECWs)

Introduction ............................................................................................................................ 1
Methods and Scope...................................................................................................1
What Is Not Covered, and Why .................................................................................2
Executive Summary ..................................................................................................4

Part 1: What They Are, and What They Do ................................................................... 8

The Devices Themselves ..........................................................................................8
Development of Technology ........................................................................................................... 8
How They Work .................................................................................................................................... 9
Reliability ................................................................................................................................................ 10
Health Effects .......................................................................................................... 12
Framing the Literature: 3 Major Groups .................................................................................. 13
Limitations of Extant Medical Literature .................................................................................. 15
The NIJ Study: Seven Questions .................................................................................................. 16
Conclusion ............................................................................................................................................. 22

Part 2: How and When ECWs Are Used ....................................................................... 23

How Widely Are They Used? .................................................................................. 23
Who Are They Used Upon? ........................................................................................................... 24
When May Police Use Them? ................................................................................. 24
Legal Standards ................................................................................................................................... 24
Use-of-Force Policies ........................................................................................................................ 26

Part 3: Effects on Public Safety ...................................................................................... 31

How to Read the Evidence ...................................................................................... 31
Notes on Experimental Design..................................................................................................... 31
Limitations of the Research ........................................................................................................... 33
What Does the Literature Say? ............................................................................... 34
(1) Do ECWs Replace Use of Lethal Force? ............................................................................ 36
(2) Do ECWs Reduce Injuries to Officers? ............................................................................... 41
(3) Do ECWs Reduce Non-Lethal Injuries to Suspects? .................................................... 45
(4) Has There Been Study of Other Ways to Achieve These Goals?........................... 56

Conclusion ............................................................................................................................. 59
Appendices ........................................................................................................................... 63
Appendix A: Basic Features of Current Taser Models ......................................... 63
Appendix B: Ninth Circuit Cases Addressing Police Use of ECWs ..................... 65
Selected Bibliography ............................................................................................. 66

Introduction
The Stanford Criminal Justice Center (SCJC) serves as a research and policy institute on
matters related to the criminal justice system. At the request of the Berkeley City
Council, the SCJC produced the following report on Electronic Control Weapons
(ECWs, for short) 1 as the Council considers whether to launch an ECW pilot program
for the Berkeley Police Department (BPD). In accordance with its mission of providing
research for the public sector, the SCJC prepared the report as a pro bono contribution to
this important public debate.
METHODS AND SCOPE

The SCJC report aims to help the City Council evaluate the potential benefits and
consequences of equipping city police with ECWs. The Councils primary concern was
the impact of ECW adoption on the safety of police officers and the citizens they protect.
The Council also sought information on the acute health effects of ECWs, the legal
framework that governs ECW use, and how adoption might impact the citys budget.
To answer those questions, we have read and analyzed approximately 150 studies on the
public safety impacts of ECW adoption, the physical effects of ECWs on the human
body, and the legal ramifications of ECW adoption. We have attempted to rigorously
assess each of these studies, critiquing their methodologies and assumptions, as well as
considering possible critiques of those critiques. Our goal has been to help identify what
is and what is not known about ECW as a law enforcement tool, and to separate well
founded claims from those with a weak foundation.
The City Council and the SCJC originally planned to survey several nearby jurisdictions
in order to examine outcomes following ECW adoption. The goal was to extrapolate from
the results of nearby cities, whose demographics and characteristics might be similar to
those of Berkeley.
As the Centers research continued, however, it became clear that a survey of nearby
jurisdictions would not provide meaningful or accurate answers to the most important
questions. Many of those questions had been addressed by a vast body of empirical

ECWs are often informally referred to as Tasers, after the trade name of Taser International, a major
manufacturer of these devices. This report refers to the devices as Electronic Control Weapons, because
we have been asked to report on the technology as a whole, rather than the characteristics of one
companys product. However, it would be impossible to present a complete picture of the impact of
ECWs without addressing the role of Taser International, which promotes nationwide adoption of ECWs
and funds a large portion of the medical research into their effects. As a result, this report will address the
companys role and impact where appropriate.

research conducted by teams of medical and social scientists, often with the support of
grants from the National Institute of Justice (NIJ). The best studies take years to gather,
code, and analyze data, which are subject to statistical controls to help account for the
characteristics that make each jurisdiction or subject unique. On the question of whether
ECWs help reduce injuries to suspect and police officers, for instance, just one of the two
leading datasets includes 24,000 use-of-force records from 12 cities, which were chosen
from a nationally representative survey of 1,000 municipal, county, and state law
enforcement agencies.
In short, attempting to reproduce those inquiries by simply surveying nearby cities would
risk capturing information irrelevant to the demographics and dynamics of Berkeley. At
the same time, the very familiarity of those nearby cities would make it even easier to
draw misleading conclusions. Moreover, for some of the most important questions, even
the most sophisticated research had yielded conflicting results.
Ultimately, we determined that the best way to help the Berkeley City Council answer
these questions was to effectively synthesize this vast literature into an overview of what
is known, while setting aside specious or poorly supported claims. Throughout the course
of this research, we have learned that some of the most important questions do not have
an answerin some cases, because research is still ongoing; in other cases, because the
answers depend on underlying values and beliefs. We believe that identifying and
explaining those questions that do not have clear answers is one of the more useful
functions of this report.
WHAT IS NOT COVERED, AND WHY
A PRESCRIPTION FOR BERKELEY

In the conclusion of this report, we present our general impression of the costs and
benefits associated with ECWs, based on our view of the literature. After many months of
surveying the research, we have come to recognize that identifying the impact of ECWs
often requires weighing the evidence-backed costs and benefits against each other.
At the same time, this report makes no recommendation as to whether the Berkeley
Police Department should be equipped with ECWs. We were not asked to make such a
recommendation for the citynor could we, because our research has shown the extent
to which that decision depends on the values and needs of the city itself. Nor do we make
specific recommendations on how ECWs should be deployed, if Berkeley were to launch
a pilot program. Developing a policy tailored to any city requires study and debate that is
beyond the scope of this report, and would be a task for the residents of Berkeley and
their elected officials and governmental bodies.

10

Finally, this report does not formulate general prescriptions or best practices. Such
recommendations have been developed by other organizations. The 2011 Electronic
Control Weapon Guidelines, developed by the Police Executive Research Forum (PERF)
with the support of the Office of Community Oriented Policing Services at the U.S.
Department of Justice, are perhaps the most comprehensive set of publicly available
guidelines. While we do not endorse those guidelines, we recognize them as a useful
resource for understanding mainstream policy recommendations on use-of-force,
training, and many other important aspects of ECW policy. Where appropriate, we
provide footnotes that point to relevant ECW guidelines and other resources, while
maintaining our focus on analyzing empirical evidence on the impact of different policy
choices.
FISCAL IMPACT

This report does not address the financial questions related to the adoption of ECWs.
Presenting meaningful information on several important cost categories was infeasible
within the scope of this project. We have listed several cost categories below, and have
suggested ways in which the city might measure those costs at a later date.
More importantly, we have come to see the question of cost as a matter of secondary
concern, compared with issues of public safety. We recognize that it is tremendously
important to consider the fiscal impact of any policy choice. However, as explained
below, it is not yet clear whether and to what extent ECW deployment improves public
health and safety. Whether or not ECW deployment comes at a financial price that a city
considers affordable is of little consequence until those questions are answered. As a
result, we have spent our time investigating these threshold issues.
Moreover, the answers to questions of cost in many ways depend on the answers to
questions of efficacy and safety that we have focused on. In the future, the City Council
might consider cost-benefit analyses that model the upper- and lower-bounded findings
on officer and suspect injury rates.

Some important cost categories to consider in the future include:Equipment

Costs: A vendor or manufacturer of ECWs is best positioned to provide these
figures in the event that Berkeley decides to deploy them.

Litigation Costs: It was not feasible to collect meaningful figures within the
scope of the present work. Claims are frequently resolved through confidential
settlements, making it difficult to obtain any figures except those awarded in
atypical cases that receive media attention. At best, we could only present
anecdotal information on settlements and jury awards gleaned from reports in the
most egregious cases. This precludes us from offering figures on the potential
budgetary impact of litigation in the event that Berkeley decides to adopt ECWs.
3

11

Workers Compensation Costs and Insurance: Calculating these costs depends

largely on the extent to which ECW adoption leads to lower rates of injuries to
police officers and/or less serious injuries when officers are injured. A costbenefit analysis specific to Berkeley would require extensive access to, and
consideration of, current expenditures in many areas of the citys budget.

EXECUTIVE SUMMARY
PART 1:

WHAT THEY ARE, AND W HAT THEY DO

THE BASICS

Electronic Control Weapons (ECWs) have been widely adopted by police officers
as less-lethal weapons. ECWs are most commonly used in dart mode, in
which nitrogen canisters propel a pair of barbed electrodes toward a subject.
When the electrodes make contact with the persons body, they complete a circuit
and deliver an electrical charge that causes involuntary muscle contractions, as
well as significant levels of pain for the duration of the charge.

ECWs were invented in the 1960s, and the technology developed significantly in
the 1990s. ECWs have been broadly adopted by law enforcement agencies in the
United States. Although estimates vary, approximately 12,00015,000 law
enforcement agencies equip at least some of their officers with ECWs, at least as
of 2011.

This report presents a survey of empirical literature on issues related to ECW

policy. It is important to note that even the best empirical studies are riddled with
caveats that limit the confidence readers can place in their results. For example,
the medical literature reflects the limits on what researchers can ethically test in a
controlled setting, while structural issues make it difficult to gather reliable data
about the impact of ECW adoption by police officers. Many important questions
are still being investigated.

RELIABILITY

Researchers have examined how reliably ECWs incapacitate resistant suspects,

thus ending an encounter that has or might become dangerous. While the research
on ECW reliability is largely jurisdiction-specific, there is support for the claim
that ECWs are generally effective at disabling resistant subjects.

HEALTH EFFECTS

There is no simple way to discuss the medical risks associated with ECWs
because there are so many fluid factors to consider. ECWs have distinct impacts
4

12

on different segments of the population, and their relative safety also varies with
the circumstances of any given interaction.

Despite these individual- and event-specific factors, researchers have arrived at

one broad, caveat-filled conclusion: There is a general consensus that ECWs are
safe for use on healthy individuals who are not under the influence of drugs or
alcohol, are not pregnant, and do not suffer from mental illnessso long as the
individual receives only a standard five-second shock to an approved area of the
body.

Significantly, these conclusions largely stem from medical studies that use
healthy male police officers as subjects. As a result, this conclusion has only
limited applicability to the population at large. Moreover, there are still several
unexplored areas of medical research. Additionally, research suggests that many
or most people subjected to ECWs in the field have one or more of the risk factors
addressed in the medical literature, i.e., they are under the influence of alcohol or
illicit drugs, or have physical or psychiatric comorbidities.

PART 2:

HOW AND WHEN ECWS ARE USED

As is true with any use of force by police officers, ECW use is governed by the
Fourth Amendment to the United States Constitution, which requires that officers
use reasonable force in relation to the circumstances and magnitude of the threat.

At a practical level, police officers are guided by departmental use-of-force

policies. A legally sound policy represents a distilled version of the Fourth
Amendments legal framework. Yet use-of-force policies are not identical; they
reflect a jurisdictions policy decisions about when it is appropriate to use ECWs
and other types of force in response to suspect resistance.

Major nationwide surveys show that police agencies have adopted a variety of
approaches to integrating ECWs into their use-of-force policies. Roughly
speaking, while some agencies view ECWs as a first resort, and a very small
number allow ECWs only in situations that would justify deadly force, most
agencies fall somewhere in between.

One common set of guidelines formulated by the Police Executive Research

Forum (PERF) recommends that ECWs should be used only against subjects
who are exhibiting active aggression or who are actively resisting in a manner
that, in the officers judgment, is likely to result in injuries to themselves or
others. They also recommend ECWs should not be used on passive, handcuffed,
or fleeing subjects, unless justified by the need to protect suspects, bystanders, or
officers.
5

13

PART 3:

EFFECTS ON PUBLIC SAFETY

READING THE LITERATURE

Over the past 15 years, researchers have produced a rich, complex, and sometimes
conflicting body of literature that investigates the impact of ECW adoption on
important policy outcomes related to policing. However, in order to make use of
these findings, it is essential to recognize the limitations of the existing literature.
While this report surveys the literature and seeks to provide the best-supported
conclusions, those limitations often make it difficult to answer important
questions with a simple yes or no.

UNPACKING THE QUESTIONS

Assessing whether ECW are effective requires careful consideration of

several different questions. As always, it is important to note that even the
best empirical research into those questions suffers from significant
limitations.
(1)

Do ECWs replace or reduce the use of lethal force (gunfire)?

There is very little evidence to support this claim. No comprehensive
study has considered this question in detail. Studies that address the
issue in any fashion suffer from methodological and design limits.

(2)

Do ECWs reduce [non-lethal] injuries to officers?

While the research on officer injuries is by no means unequivocal, there
is strong support for the assertion that ECWs reduce injuries to officers
to some degree. However, the studies do vary as to the magnitude of the
effect, and none have comprehensively addressed reductions to the
severity of injuries.

(3)

Do ECWs reduce [non-lethal] injuries to suspects?

The answer is that it depends. At first glance, the literature appears to
establish a clear relationship between ECWs and reduced injuries to
suspects. However, this dominant narrative masks a more complicated
body of research that casts doubt on the conclusion. The results of the
most reliable studies appear to depend on whether or not the researchers
counted punctures from ECW barbs as an injury in their statistical
models. This distinction may seem technical or semantic at first.
However, we have to come see it as one of the more difficult questions
we have examined, because the answers involve subjective judgments
about important values that may be in tension with one another.
Deciding how to answer this question is an important decision for
Berkeleys policymakers and residents.
6

14

(4)

Are there alternative practices or tools that would accomplish these

goals, such as Crisis Intervention Teams or a focus on de-escalation?
So far, CIT research has mostly focused on changes in attitudes among
CIT-trained officers. While the results are encouraging, there is little
empirical evidence to support a relationship between CIT training and
reduced use of force, or in reduced injuries to officers or suspects.

CONCLUSIONS AND ANALYSIS

The goal of this report was to examine whether empirical research substantiates the
perceived benefits and costs of ECWs. We approached the hundreds of studies assessing
ECWs hoping to find a body of robust evidence that would support or debunk the many
claimspositive and negativemade about these devices. Unfortunately, that was not
our experience. Instead, we found that even the best empirical studies in this field are
riddled with caveats that limit the confidence readers can place in their results. For every
conclusion, there is an asteriskand often, an asterisk to the asterisk.
While we cannot provide a recommendation specifically for the city of Berkeley, our
efforts to identify the evidence-backed benefits and costs of ECW adoption have often
required us to assess the weight of that evidence. Our own conclusion is that, while the
literature suggests that ECWs may have benefits, these benefits are easily overstated.
Moreover, realizing those potential benefitssuch as reducing the rate of injuries to
officers and possibly suspectsmay require accepting the possibility that vulnerable
populations are more likely to be exposed to the painful effects of ECWs. Meanwhile, the
costs, or potential harms, of using ECWs are not yet fully understood.
We believe this calls for caution in deploying ECWs, and that these devices should be
adopted in limited circumstances, if at all. If ECWs are to be adopted, we would urge
policy makers to give careful consideration to practices adopted in jurisdictions with long
exposure to the benefits and pitfalls of ECWs.

15

Part 1:

What They Are, and What They Do

The following section introduces key background information regarding electronic

control weapons. First, we present an overview of the devices and their development.
Second, we assess the reliability of ECWs, analyzing their success rate at incapacitating
resisting subjects. Finally, we offer an analysis of the health impacts of ECWs, in which
we divide the current medical literature into three major groups, highlight the limitations
of the literature, and then explain its key findings.
It is important to note at the outset that ECWs have been adopted by many police
departments for use as a less-lethal weapon (LLW). This designation reflects the reality
that ECWs are less-lethal, not non-lethal. The same is true of many other common
law enforcement weapons, such as batons. Leading police organizations have recognized
this distinction by adopting the less-lethal terminology. In the words of Philadelphia
Police Commissioner Charles Ramsey, We did a disservice to our men and women ten
years ago when we started using this technology and referred to it as less than lethal or
non-lethal force. Less lethal is a more accurate term. 2
THE DEVICES THEMSELVES
DEVELOPMENT OF TECHNOLOGY

Less-lethal weapons (LLWs) developed to provide officers with force options less severe
than firearms. In the mid-19th century, police officers in New York and Boston relied on
less-lethal weapons, mostly wooden clubs. By the late 1800s, police departments began
issuing firearms to officers in response to better-armed criminals. 3 In the late-19th
century, officers had two force options of abruptly different magnitudes: wooden clubs
and firearms. Because some situations warranted greater force than a wooden club, but
less force than a firearm, various LLWs were developed to round out officers force
options.
Today, police officers utilize a range of LLWs, including electronic control weapons
(e.g., Tasers), chemical irritants (e.g., pepper spray, tear gas), and hard impact weapons
(e.g., batons, flashlights). 4 Of these, pepper spray and ECWs are the most commonly
used LLWs. 5

[#1, p. 4.]
[#7, p. 4.]
4
[#3, p. 13.]
5
[#3, p. 13.]
3

16

The most prominent brand of ECWs is the Taser, manufactured by Taser International.
American nuclear physicist Jack Cover (19202009) invented the Taser, naming the
device after one of his favorite childhood book characters, Tom Swift. 6 (Taser is an
acronym that stands for Thomas A. Swift Electronic Rifle.) Cover began to develop
the Taser in the 1960s as a response to a recrudescence of airplane hijackings, with the
aim to reduce the risk inherent in the use of firearms to both passengers and airplanes. 7
ECWs evolved significantly throughout the late 20th century. Early versions were often
bulky and ineffective, but later versions featured increasingly streamlined designs and
greater technological sophistication. 8 New models are battery-powered, and use nitrogen
cartridges to fire projectiles. 9 These models can fire twice before the officer needs to
reload the device, in contrast to earlier models, which had to be reloaded once the first
cartridge had been expended.
HOW THEY WORK

ECWs can generally be used in one of two ways: drive stun mode or dart mode.
In drive stun mode, the ECW is held against a subject, which completes a circuit between
the device and the persons body. In the drive stun method, the overwhelming factor is
the creation of pain and hence compliance. 10 Although drive stun has certain technical
applications, many police executives recommend against using it as a pain compliance
tool. 11
Dart mode is the method more commonly used by police officers. In this mode, the
devices generate 50,000 volts of electricity that is delivered by gas-propelled darts. 12
Electrodes are fired toward the target as projectiles, [and] neuromuscular stimulation
occurs over a larger area. In addition to pain, the device incapacitates the target by
stimulating his or her motor nerves and muscles as well as sensory neurons. 13

[#4, p. 179.]
[#4, p. 179.]
8
[#5, p. 704.]
9
[#3, p. 14.]
10
[#15, p. 1451.]
11
See PERF Guideline 16: Agencies policy and training should discourage the use of the drive stun mode
as a pain compliance technique. The drive stun mode should be used only to supplement the probe mode
to complete the incapacitation circuit, or as a countermeasure to gain separation between officers and the
subject so that officers can consider another force option.
12
[#7, p. 2.]
13
[#15, p. 1451.]
7

17

The barbed darts penetrat[e] the skin most of the time, but the electrical impulses can
also be transmitted through clothing. 14 Once the darts make contact with a subject, they
create an electrical circuit, using the subjects body as a conductor. The electricity travels
along thin wires attached to the darts. 15
The charge produced by ECWs stimulates the sensory and motor nerves, causing
involuntary neuromuscular contraction. 16 This involuntary muscle contraction
temporarily disables subjects, often causing them to fall to the ground. 17 This
incapacitation is intended to last for the duration of the electrical discharge. A standard
discharge on most Taser models is five seconds, but [the discharge] can be 15 seconds
or longer if pressure on the trigger is maintained. 18 Tasers are effective at incapacitating
targets at a distance of 20 to 35 feet, depending on the model. 19
RELIABILITY

A preliminary empirical question involves the ability of ECWs to incapacitate resisting

subjects. One perceived benefit of ECWs is that they allow officers to quickly control and
conclude situations that are or might become dangerous. An initial consideration, then, is
how effective ECWs are at ending an encounter. The extant research suggests that ECWs
are generally effective at disabling subjects. Unfortunately, this body of research is
limited in nature, and the existing studies are primarily jurisdiction-specific.
WHITE AND READY (2007)

In The TASER as a less-lethal force alternative, Michael White and Justin Ready
examined 243 ECW deployment report forms completed by New York Police
Department (NYPD) officers between 2002 and 2004. 20 NYPD officers who carry ECWs
are required to complete these forms every time the device is discharged in the field. The
forms include detailed information on officers, suspects, and levels of resistance involved
in each force encounter. White and Ready analyzed these forms and found that ECWs
incapacitated subjects in 85% of NYPD encounters. 21 In approximately one-third of the
cases reviewed, suspects continued to resist after experiencing the first shock of an

14

[#4, p. 180.]
[#7, p. 2.]
16
[#3, p. 4.]
17
[#8, p. 429.]
18
[#15, p. 1451.]
19
[#3, p. 15; #4, p. 180.]
20
[#9.]
21
[#9, p. 182.]
15

10

18

ECW.22 The ECW entirely failed to incapacitate suspects in 33 cases, which represents a
14% failure rate. 23
WHITE AND READY (2010)

In a 2010 study 24 relying largely upon the same dataset as their 2007 work, 25 White and
Ready identified several factors related to ECW ineffectiveness. The researchers
measured ECW ineffectiveness in two ways, using two different dependent variables.
First, White and Ready measured continual resistance, defined as resistance that
continued throughout an encounter even after an ECW discharge. 26 An encounter was
coded as continual resistance if the ECW never subdued the suspect. Second, the authors
measured any resistance, defined as a situation where the suspect was initially subdued
by the ECW, but began resisting again later. 27
White and Ready identified several predictors of these two forms of ECW
ineffectiveness. The researchers found that suspects continued to resist following ECW
deployment in situations where: (1) the suspects body weight was greater than 200
pounds, (2) the suspect was under the influence of drugs or alcohol, or (3) one or both
ECW darts missed the intended target. 28
While informative, the 2010 study has some limitations. The authors studied an agency
that issues ECWs to only a small percentage of Emergency Service Unit (ESU) officers.
Moreover, ESU officers could only use ECWs in specific situations (e.g., to restrain an
emotionally disturbed person or someone at risk of injuring himself or others). As White
and Ready acknowledge, [W]e have examined one police department with a restrictive
and closely monitored deployment pattern, which limits the conclusions we can draw. 29
MESLOH, ET AL. (2008)

Finally, a 2008 study by Charlie Mesloh et al. provides additional support for the claim
that ECWs are generally effective at disabling subjects. 30 In Less Lethal Weapon

22

[#9, p. 184.]
[#9, p. 182.]
24
[#10.]
25
The 2010 study relies on the same NYPD data as the 2007 White & Ready study, but examines Taser
deployment forms from 20022005, for a total of 375 forms (rather than 243 forms reviewed for the
2007 study).
26
[#10, p. 79.]
27
[#10, p. 7980.]
28
[#10, p. 86.]
29
[#10, p. 97.]
30
[#29.]
23

11

19

Effectiveness, Mesloh et al. measured the extent to which ECWs effectively conclude
officer and suspect confrontations. 31 Mesloh et al. relied on a smaller dataset, which
included use-of-force reports compiled between 2000 and 2005 for two agencies in
Central Florida: the Orlando Police Department and the Orange County Sheriffs
Department. The researchers used the data from these use-of-force reports to break
individual officer/suspect confrontations down into a series of iterations, each
representing a single action and reaction. 32 This allowed them to examine whether ECW
discharge ended the officer/suspect confrontation, or allowed it to escalate into another
iteration. 33
According to Mesloh et al., As the confrontation continues from iteration to iteration,
the likelihood of injury to both officers and suspects rises. Mesloh et al. coded an ECW
discharge as effective if the suspect became immediately compliant after a single fivesecond application. 34 Ultimately, Mesloh et al. concluded that ECWs have a 69% success
rate. 35
HEALTH EFFECTS

It can be challenging to assess the medical risks associated with ECWs because the
debate regarding ECW safety is often polarized. Concerned advocacy organizations such
as Amnesty International have issued reports claiming up to 334 ECW-proximate deaths
between June 2001 and August 2008. 36 In an attempt to counteract this claim, leading
manufacturers have steadfastly and uncritically affirmed the safety of their devices.
There is no simple way to discuss the medical risks associated with ECWs because there
are so many fluid factors involved. ECWs have distinct impacts on different segments of
the population, and their relative safety also varies with the circumstances of any given
interaction. For example, a healthy, relaxed male will react to an ECW discharge
differently than an agitated male under the influence of alcohol. Moreover, even two
healthy, relaxed males may react differently to an ECW discharge depending on the
duration of the discharge and the location of the barbs. There are simply too many fluid
individual and incident-level characteristics to allow for broadly generalizable statements
about the health impacts of ECWs.

31

[#29, p. 88.]
[#29, p. 49.]
33
[#29, p. 67.]
34
[#29, p. 54.]
35
[#29, p. 88.]
36
[#12.]
32

12

20

Despite these individual- and event-specific factors, researchers have arrived at one,
caveat-filled conclusion. There is a general consensus that ECWs are safe for use on
healthy individuals who are not under the influence of drugs, alcohol, or mental illness,
and are not pregnant, so long as these individuals receive only a standard five-second
shock to an approved area of the body. 37 Significantly, these conclusions largely stem
from medical studies that rely on healthy male police officers as subjects. As a result, this
conclusion has only limited applicability to the population at large. Moreover, the
individuals most often on the receiving end of ECW discharges are not healthy, sober
individuals. Research suggests that the population of individuals who most commonly
experience ECW shocks includes people under the influence of drugs or alcohol, or in a
state of excited delirium. 38
In response to these limitations, researchers have increasingly begun to perform studies
that more closely mirror field conditions, where the subjects of ECW shocks are agitated
and/or under the influence of an illicit substance. Researchers have also examined how
the impact of ECWs varies with the duration of the shock or the location of the ECW
barbs. This effort has led to the creation of a very complex body of literature,
characterized by a focus on distinct and nuanced research questions. As a result, the first
step in grappling with the current medical research is to clearly understand the exact
question addressed by researchers, as well as the specific population tested.
FRAMING THE LITERATURE: 3 MAJOR GROUPS

The first key distinction in the current literature is the one between (1) prospective,
observational studies on humans, (2) prospective, observational studies on animals, and
(3) retrospective human case reviews. Within all three groups, researchers have attempted
to address different questions about the medical impact of ECWs, as illustrated in Table I,
below:

37

Approved areas of the body most often include all parts of the body other than the face, chest area
surrounding the heart, and groin.
38
Excited delirium is one of several terms that describe a syndrome that is broadly characterized by
agitation, excitability, paranoia, aggression, great strength and unresponsiveness to pain, and that may be
caused by several underlying conditions, frequently associated with combativeness and elevated body
temperature. [#13, p. 21.]

13

21

TABLE I: THREE GROUPS OF MEDICAL STUDIES

TYPE OF STUDY

TOPICS EXPLORED

PROSPECTIVE,
OBSERVATIONAL
HUMAN STUDIES

Effects of ECW on:

Heart
Respiratory system
Metabolism
Blood chemistry
Venous pH

PROSPECTIVE,
OBSERVATIONAL
ANIMAL STUDIES

Effects of ECW on:

Heart (including after prolonged, repeated
discharges or while under influence of drugs)
Blood chemistry
Impact of dart placement

RETROSPECTIVE
HUMAN CASE STUDIES

Effects of ECW on:

Pregnancy
Incident characteristics of ECW deployment
Incident characteristics of arrest-related deaths

In prospective human studies, researchers expose human volunteers to ECWs for varying
lengths of time. Generally, the researchers follow a standard pattern: first, they record
baseline physiologic measurements pre-ECW exposure; next, they expose subjects to
ECW discharge; and finally, they record the relevant post-ECW measurements.
Prospective human studies have examined many different medical questions, including
the cardiac impact of both the M26 and X26 Taser models, as well as the impact of
ECWs on respiration, blood chemistry, venous pH, and metabolism. At least one study39
has examined the effects of ECW exposure on legally intoxicated subjects.
Although there have been an impressive number of prospective human studies, these
studies suffer from some limitations. First, many studied small sample sizes. Second,
these studies often rely on healthy police volunteers who were not under the influence of
drugs, alcohol, or excited mental states. Thus, the results of these studies may not be
generalizable to the segment of the population most likely to experience the discharge of
ECWs.

39

[#14.]

14

22

Prospective animal studies comprise the second major body of medical research. In
prospective animal studies, researchers have primarily attempted to issues that would be
too dangerous or unethical to explore with human subjects. Like the human studies, these
studies generally examine the cardiac impacts of ECWs, but they often do so by
subjecting subjects to prolonged or repeated ECW discharges. In contrast to many human
studies, which limit ECW discharges to 515 seconds, the animal studies often involve
longer discharges (up to 40 seconds). The animal studies have also explored the impact of
ECW dart placement on the heart, in order to determine if certain barb positions
exacerbate harm to the cardiovascular system. Finally, animal studies have examined the
impact of ECW exposure on swine subjects injected with cocaine.
Like the prospective, observational human studies, these animal studies also suffer from
some noteworthy limitations. Although the animal studies are better able to replicate the
field and subject conditions in which ECWs are generally deployed, they suffer from
generalizability concerns. Researchers simply to not know to what extent their results,
using animal subjects, are applicable to humans.
Retrospective human case studies comprise the third major body of medical research, and
they address three main areas of interest. First, these studies have examined the broader,
incident-level characteristics of ECW deployment, in order to determine the types of
people most commonly subjected to ECW discharge and the circumstances in which this
takes place. Retrospective case studies have also examined the incident-level
characteristics of arrest-related deaths involving ECWs. Finally, some retrospective case
studies address narrow questions, such as the impact of ECWs on pregnant women.
Retrospective human case studies also suffer from some limitations. In contrast to
prospective human or animal studies, retrospective human case studies do not occur in a
controlled experimental setting. As a result, it is often not possible to control for
confounding variables.
LIMITATIONS OF EXTANT MEDICAL LITERATURE

Assessing the medical literature is complicated not only by its reliance on different
subjects and methodologies, but also because so much of the studies are funded by Taser
International. Two groups have performed the majority of human clinical investigations
on ECWs to date: Ho [and Dawes], using partial manufacturer funding, and Vilke et al.,
using U.S. federal funding. 40 Doctors Jeffry Ho and Donald Dawes have published a
multitude of studies on the medical impact of ECWs. Dr. Ho is the Medical Director of
Taser International, and Dr. Dawes is an expert consultant for Taser International. Both

40

[#4.]

15

23

men also own shares of stock in the company. Individually and jointly, Doctors Ho and
Dawes have published a large proportion of the overall body of literature assessing the
medical impacts of ECWs. Although this funding source does not discredit the research
or the methodology of an individual study, it should be noted for its possible effect on
what is known about the health effects of ECWs. It is also worth noting that Taser
International sometimes touts the results of research conducted by company employees or
board members without transparently describing the circumstances under which the
statistics were produced. 41
In addition to these funding concerns, the medical research is also complicated by the fact
that researchers have not reached an agreement on many basic, foundational questions,
such as the mechanism by which ECWs incapacitate subjects. [T]he fact is that our
knowledge and understanding of ECW effects is incomplete. Indeed, there is uncertainty
about how exactly ECWs achieve their effects on the human body. Some propose that the
effects of ECWs are due entirely to electrically induced tetany [muscular spasms], while
others hypothesize secondary effects due to nerve stimulation and reflex effects. 42
In short, the current medical research paints anything but a clear picture. The studies
explore specific questions using different methodologies and subjects. Many foundational
gaps also exist within the literature. As a result, it is difficult for any lay person to reach
generalizable conclusions using the current literature. Thankfully, a comprehensive NIJsponsored study has synthesized much of the extant literature into a series of concrete,
evidence-based recommendations. Conducted by a steering group of expert emergency
doctors, cardiac specialists, and medical examiners, this NIJ study provides the most
authoritative and reliable overview of the extant medical literature.
THE NIJ STUDY: SEVEN QUESTIONS

The 2011 NIJ study, Study of Deaths Following Electro Muscular Disruption, was
carefully structured to draw on a range of medical expertise. 43 The study was directed by
a steering group comprised of representatives from the NIJ, the College of American
Pathologists, the Centers for Disease Control and Prevention, and the National
Association of Medical Examiners. The steering group appointed a medical panel
composed of forensic pathologists, medical examiners, and physicians or specialists in
the fields of cardiology, emergency medicine, epidemiology, and toxicology. This

41

See, e.g., http://www.nytimes.com/2005/01/14/business/taser-shares-rise-on-news-of-safety-study.html.

[#13, p. 21.]
43
[#13.]
42

16

24

medical panel was specifically structured to avoid conflicts of interest. No panelists were
chosen who had worked as litigation consultants for or against ECW manufacturers.
The medical panel proceeded in three phases. First, the panel conducted mortality
reviews of 300 ECW-related deaths (defined as deaths where an officer deployed an
ECW on an individual who later died). The panel focused on reviewing those cases
where ECW was listed on the death certificate. Second, the panel reviewed the current
state of research regarding the medical effects of ECWs. Specifically, the panel
performed an extensive review of the extant research, identifying over 2,500 initial
publications and studies. This list was ultimately reduced to 175 peer-reviewed journal
articles, which were then reviewed and rated for their scientific quality and relevance.
This process ensured that the panel relied on the most significant and trustworthy studies
available as the bases for their conclusions. Finally, the panel consulted stakeholders
including experts, human rights groups, law enforcement professionals, physicians,
researchers, and manufacturers of ECWs, inviting over 30 experts to make presentations.
The NIJ report contains the ultimate findings and recommendations of the medical panel,
which we believe represents the most thorough, independent review of the current
medical literature.
The medical panel presented its findings in the form of 12 topical headings, which
featured a detailed analysis followed by conclusions and recommendations. What follows
is a brief overview of those conclusions most relevant to this report. For ease of
understanding, we have reframed some of the panels topical headings into questions.
1. ARE ECW S SAFE FOR CONTINUED USE BY THOSE LAW ENFORCEMENT
AGENCIES THAT USE THEM?

The NIJ panel concluded that law enforcement agencies need not discontinue their use of
ECWs, so long as the agencies deploy them in accordance with appropriate use-of-force
policies. The panel explains:
There is no conclusive medical evidence in the current body of research
literature that indicates a high risk of serious injury or death to humans
from direct or indirect cardiovascular or metabolic effects of short-term
ECW exposure in healthy, normal, non-stressed, non-intoxicated people.
Field experience with ECW use indicates that short-term exposure is
safe in the vast majority of cases. 44

44

[#13, p. viii (emphasis added).]

17

25

The panel noted that many of the ECW-proximate deaths or serious injuries involved
repeated or prolonged ECW discharges, and stressed that there has been limited research
on humans involving ECW exposures of longer than 15 seconds. 45
2. WHAT IS THE LIKELIHOOD OF MODERATE OR SEVERE INJURIES CAUSED BY
ECW S, INCLUDING DIRECT AND SECONDARY INJURIES?

Before answering this question, the panel defined the terms moderate injury and
severe injury. According to the panel, moderate injury is an injury requiring inpatient
treatment and/or an injury that is expected to result in no more than a moderate long-term
disability. The panel defined severe injury as an injury involving a threat to life or
inpatient treatment, or one expected to result in severe long-term disability. The panel
concluded that the potential for moderate or severe injury from ECWs is generally low.
This is true with respect to injuries stemming from direct and indirect (e.g., falls,
fractures, etc.) impacts of ECWs.46
According to the panel, the direct impacts of ECWs include wounds or burns caused by
dart punctures. Additionally, the direct impacts of ECWs may be exacerbated where an
ECW dart strikes an unapproved area. For example, ECW punctures to the eyes can lead
to a loss of vision, and ECW punctures to the throat can lead to throat perforation.
The panel also emphasized the risk of serious injuries stemming from the indirect effects
of ECWs. Examples of indirect effects include ignition risks due to an ECW sparking
near flammable materials, or the results of discharging an ECW upon a person standing
on a steep slope or a tall structure who falls and receives traumatic injuries, or someone
in water who then drowns. 47 The panel explained, It is clear that physical injury
secondary to dart puncture . . . is a real though relatively uncommon danger. 48, 49
The panel concluded that the total probability of ECWs directly or indirectly causing a
moderate or severe injury is less than 1%.

45

See PERF Guideline 21: Personnel should be trained to use an ECW for one standard cycle (five
seconds) and then evaluate the situation to determine if subsequent cycles are necessary. Training
protocols should emphasize that multiple applications or continuous cycling of an ECW resulting in an
exposure longer than 15 seconds (whether continuous or cumulative) may increase the risk of serious
injury or death and should be avoided. [#15, p. 20.]
46
[#13.]
47
In its Version 18 User Update, Taser International notes, [Neuromuscular incapacitators] frequently
causes people to fall to the ground or other surface. They may or may not be able to catch or brace
themselves and cushion the fall. Several people have suffered significant injuries including death from
falling on a hard surface following an ECD exposure.
48
[#13, p. 23.]
49
See PERF Guideline 31: ECWs should not be used when a subject is in an elevated position where a fall
may cause substantial injury or death. [#15, p. 21.]

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26

3. WHAT RISKS DO ECWS POSE TO THE CARDIOVASCULAR SYSTEM?

The panel discussed three significant irregular heart rhythms: ventricular fibrillation
(VF), ventricular capture (VC), and ventricular tachycardia (VT).
The panel concluded that there is no evidence to suggest that ECWs induce irregular
heartbeat in humans, so long as they are deployed reasonably. However, the panel also
emphasized that ECW use involving the area of the chest directly in front of the heart is
not entirely risk-free.
Specifically, the panel concluded that the risk of ECWs directly inducing VF is
exceedingly low, although the likelihood may be dependent on where the ECW darts are
located in relation to the heart. Research on swine has indicated that there is a greater
chance of VF when the barb is placed near the heart. The panel also described how some
swine studies have found that an extended ECW discharge is capable of inducing VT and
that it can sometimes lead to death. As with VF, the risk of VT in swine may be
dependent on the barbs proximity to the heart. Ultimately, the panel concluded that the
risk of VT in humans remains low.
The panel also addressed the problem of hypothetical analyses, which play a recurring
role in the ECW literature. Specifically, the panel noted that while many of the cardiac
concerns surrounding ECWs are theoretically possible, there have not been any
demonstrated cases. For example, the use of ECWs on individuals with pacemakers or
defibrillators could theoretically be hazardous, although there have been no documented
adverse events associated with such use.
Ultimately, the panel concluded that the research simply does not substantiate the claim
that there is an increased risk of irregular heartbeat from ECWs. However, the panel does
recognize that the use of ECWs in close proximity to the heart is not totally risk-free. 50
4. WHAT RISKS DO ECWS POSE TO THE RESPIRATORY AND METABOLIC
SYSTEMS?

50

In its Version 18 User Update, Taser International provides an illustration of the preferred target zone
that exclude the upper chest area. The company writes, The further an ECD dart is away from the heart,
the lower the risk of affecting the heart. The risk of ECD causing cardiac arrest in humans is not zero, but
is sufficiently remote that making accurate estimates is very difficult.
As noted in the 2011 PERF Guidelines, before 2009 the company had not instructed law enforcement
agents to avoid firing ECWs at a subjects chest. The new recommendation created confusion in the law
enforcement community and heightened concerns about police agencies liability. Some law enforcement
officials have said they do not understand why the bulletin was issued, given the manufacturers
assertion that the weapon, when used properly, is safe. TASER International contends that the change is
not a new policy and that the recommendation is based on risk management principles, not medical or
safety concerns. [#15, p. 37.]

19

27

As the panel explains, the respiratory system and the kidneys maintain the acid/base
balance in the human body, responding to the metabolic demands of the individual.
Because ECWs induce muscle contractions that naturally produce lactate, it is possible
that these weapons could increase the overall amount of lactate in the bloodstream.
Additional lactate in the blood increases the overall acidity of the blood, potentially
jeopardizing the acid/base balance. In order to compensate for this disproportion, the
respiratory rate often increases in turn. In extreme cases, the increase in blood acidity
(also known as acidosis) may lead to cardiac arrest.
In order to mitigate these risks, the panel recommended that law enforcement officers
refrain from prolonged ECW discharges (i.e., discharges longer than 15 seconds). The
panel was particularly concerned with the role that acidosis might play in combination
with metabolic abnormalities, drug intoxication, or excited delirium. According to the
panel, further study is required to fully understand the interaction between acidosis and
individuals in these states. 51
5. WHAT RISKS DO ECWS POSE TO INDIVIDUALS IN A STATE OF EXCITED
DELIRIUM?

Excited delirium [ED] is one of several terms that describe a syndrome that is broadly
characterized by agitation, excitability, paranoia, aggression, great strength, and
unresponsiveness to pain, and that may be caused by several underlying conditions,
frequently associated with combativeness and elevated body temperature. 52 According
to the panel, the majority of ED cases involve the use of illicit stimulants.
Additionally, it is important to note that drive stun mode may have no impact on
individuals in a state of ED, as these individuals are often insensitive to pain (and drive
stun mode is a pain compliance mechanism, not a muscular incapacitation mechanism). 53
Significantly, no human studies have been performed in situations modeling excited
delirium. Because of this uncertainty, [the panel recommends that] the number and

51

See PERF Guideline 34: Personnel should be aware that there is a higher risk of sudden death in
subjects under the influence of drugs and/or exhibiting symptoms associated with excited delirium.
[#15, p. 21.]
52
[#13, p. 21.]
53
See note on Risks Associated with ECWs accompanying PERF Guidelines: The primary function of
the drive stun mode, when not used to complete the circuit [in the event that one of the probes is
ineffective or becomes dislodged], is to gain subject compliance through the administration of pain.
Using the ECW to achieve pain compliance may have limited effectiveness and, when used repeatedly,
may even exacerbate the situation by inducing rage in the subject. [#15, p. 14 (emphasis in original).]

20

28

duration of ECW discharges should be generally limited to the minimal amount needed to
attain restraint. 54
6. ARE ECW S MORE HARMFUL TO AT-RISK POPULATIONS?

When used according to the manufacturers instruction, the literature suggests a

substantial safety margin of ECWs in normal healthy adults. However, this does not
necessarily mean that the devices are safe for small children, those with diseased hearts,
the elderly, pregnant women, or other potentially at-risk individuals. According to the
panel, the effects of ECWs on these populations are not clearly understood, and the use of
ECWs on these individuals should be minimized or avoided unless there is no other
alternative. 55, 56
Ultimately, the panel concluded, All evidence suggests that the use of ECWs carries
with it a risk as low as or lower than most alternatives. While it should be remembered
that unlikely events may occur, it is unreasonable to demand that any application of force
be totally risk-free in all populations at all times. 57
7. WHAT IS THE SAFE DURATION FOR ECW DISCHARGE?

Most ECW exposures in the field involve a discharge of 15 seconds or less, and as a
result many medical studies employ ECWs on subjects for this length of time. Human
studies and animal studies both indicate that there is a low risk of injury from a single
Taser X26 discharge lasting less than 15 seconds.
Experiments involving swine subjects indicate that repeated exposures of over 80 to 90
total seconds may be associated with an increased risk of VF and death. However, the
risk of prolonged exposure in humans is unknown. The panel explained, Law
enforcement personnel should be aware that . . . most deaths associated with ECW use
involved multiple or prolonged discharges. 58 Ultimately, the panel recommended that

54

[#13, p. 21.]
In its Version 18 User Update, Taser International notes that ECD use has not been scientifically tested
on: pregnant women, the infirm, the elderly, small children, or low body-mass index (BMI) persons.
56
See PERF Guideline 27: ECWs should not generally be used against pregnant women, elderly persons,
young children, and visibly frail persons. Personnel should evaluate whether the use of the ECW is
reasonable, based upon all circumstances, including the subjects age and physical condition. [#15, p.
20.]
57
[#13, p. 24.]
58
[#13, p. 27.]
55

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29

law enforcement officers minimize or avoid multiple or prolonged activations of ECW as

a means to subdue a subject. 59, 60
CONCLUSION

It is important to remember that our knowledge regarding the medical safety of ECWs is
limited by the current state of medical research, and by ethical limits to experimental
design. As the NIJ panel succinctly explained, [T]he fact is that our knowledge and
understanding of ECW effects is incomplete. . . . While such a thorough comprehension
may not be necessary to measure the physiologic effects . . . associated with ECW
deployment, it means that all recommendations are subject to revision as our
understanding improves. 61, 62
Despite these limitations, however, there is a general consensus that ECWs are safe for
use on healthy individuals who are not effected by drugs, alcohol, or mental illness, and
are not pregnant, so long as these individuals receive only a standard five-second shock
to an approved area of the body. 63

59

In its Version 18 User Update, Taser International includes a slide titled, Refresher: A Few Basics.
On this slide, the company writes, Do not exceed 15-second exposure without justification. (See Taser
Annual Update 18.)
60
See PERF Guideline 21, supra, note 44.
61
[#13, p. 45.]
62
For example, in January 2014, White et al. published the very first study examining the effects of the
TASER on cognitive functioning. [#16.] White et al. concluded that participants experienced
statistically significant reductions in several measures of cognitive functioning following TASER
exposure. [#16, p. 12.] Because White et al. published this study after the NIJ panel completed its work,
the NIJ panel did not consider the results of this research.
63
Approved areas of the body most often include all parts of the body other than the face, chest area
surrounding heart, and groin.

22

30

Part 2:

How and When ECWs Are Used

Now that we have established how ECWs work and what an individual device does, we
will broaden our scope: looking beyond the device and its impact on the body, we will
explore how the device is actually used by police agencies.
HOW WIDELY ARE THEY USED?

ECWs have been broadly adopted by law enforcement agencies in the United States.
Although estimates vary, approximately 12,00015,000 law enforcement agencies
employ ECWs in some fashion, at least as of 2011. 64 According to the most recent federal
survey, there are approximately 18,000 state and local law enforcement agencies in the
United States. 65 Taser International claims that over 18,000 of 18,250 LEAs in the United
States currently deploy their devices. 66 Estimates also vary regarding the total number of
ECW units in circulation. One fact, however, is clear: ECWs have been growing in
popularity. 67
Researchers estimate that ECWs have been deployed in more than 660,000 field
scenarios, as well as on 880,000 human volunteers. 68 According to one 2011 study that
surveyed 194 LEAs, In 2009, the number of ECW activations in responding law
enforcement agencies ranged from 0 to 473. The ECW activation rate (the number of
activations per ECW per year) ranged from 0 to 3.18, with a median activation of 0.25
and a mean of 0.38. 69 According to a 2007 study, when ECWs were used in dart mode,
officers used a single discharge approximately 50% of the time. 70

64

[#13, p. vii; #7, p. 1.]

2008 Bureau of Justice Statistics. http://www.bjs.gov/index.cfm?ty=dcdetail&iid=249. Accessed March
9, 2015.
66
https://www.taser.com/press. Accessed June 14, 2015.
67
A 2009 study estimated that over 100,000 Tasers had been issued to LEAs nationwide. [#3, p. 14.] Just
two years later, a 2011 study estimated that 260,000 ECWs had been issued to LEAs throughout the
United States. [#13, p. vii.] According to Taser International, as of the fourth quarter in 2014, the
company has sold approximately 800,000 electrical weapons worldwide (Taser website). According to a
2011 national survey of LEAs, the number of ECWs in agencies that adopted the weapons ranged from a
low of two to a high of 4,479. [#15, p. 25.]
68
[#4, p. 179; see also #19, p. 1.]
69
[#15, p. 25.]
70
[#4, p. 180.]
65

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WHO ARE THEY USED UPON?

As described in the medical section, the safety of ECWs depends in large part on
individual traits of the recipient. The clearest conclusion to be drawn from the available
medical evidence is that ECWs likely do not pose a risk of serious cardiovascular
problems in healthy, normal, non-stressed, non-intoxicated people. 71 However,
research suggests that this ideal candidate for safe exposure is rarely found among the
population most frequently subjected to ECW shocks.
A comprehensive review published in 2011 found that more than 90% of the individuals
on whom an electronic control device was used in the field were young men, with a mean
age of 30 to 32 years, but the majority of subjects exposed to a Taser were under the
influence of alcohol or illicit drugs or had psychiatric comorbidities. 72 People suffering
from mental illness are also more likely to be subjected to use of force generally,
including deadly force. 73
Police leaders acknowledge the broader issue, with regard to ECWs and to use of force in
general. The Police Executive Research Forums 2011 ECW Guidelines caution that
[p]ersonnel should be aware that there is a higher risk of sudden death in subjects under
the influence of drugs and/or exhibiting symptoms associated with excited delirium. 74
PERF has also conducted research and issued reports on avoiding the unnecessary use of
force against persons with mental illness . . . or other issues that can cause them to behave
erratically. 75 Many departments, including Berkeleys, have attempted to address the
issue by adopting the Crisis Intervention Team approach (discussed further in Part 3,
below).
WHEN MAY POLICE USE THEM?
LEGAL STANDARDS

The debate around electronic control weapons presents many novel policy questionsyet
in key ways, the adoption of ECWs would not require Berkeley to consider major new
legal issues. What follows is a brief description of the way that ECWs fit into the
constitutional framework governing police use of force, a body of law that already guides
the operations of the BPD.

71

[#13, p. viii.]
[#4, p. 180.]
73
[#1.]
74
[#15, p. 21; see also Health Effects in Part 1, supra.]
75
[#14, p. i.]
72

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The use of force by police officers is governed by the Fourth Amendment to the United
States Constitution, which provides that [t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not
be violated. 76 Police use of force, including use of an ECW, is considered a seizure of
the person, and thus force must be reasonable to comply with the Fourth Amendment.
In the 1989 case Graham v. Connor, the U.S. Supreme Court developed the analytical
test that courts 77 use to determine whether police have violated a persons Fourth
Amendment rights through an unreasonable seizure. When a person sues the police
alleging that a particular use of force was unlawful, the court must consider whether the
actions were objectively reasonable in light of the circumstances known to police
officers at the time. 78 To put it simply, the court must balance the amount of force
applied against the need for that force. 79
There are few universal rules for when the use of force is reasonable. Instead, the law
recognizes that the balancing test is always a very fact-specific inquiry, 80 because
interactions between citizens and police involve many variables that could tip the scales
one way or another.
The U.S. Supreme Court has never ruled on a case that specifically addresses when it is
reasonable for police to employ ECWs. Therefore the controlling law stems from cases
decided by federal appeals courts, the highest federal courts below the Supreme Court.
The U.S. Court of Appeals for the Ninth Circuit, which interprets federal law as applied
in California and other Western states, has decided several important cases on the use of
ECWs. Those cases establish the broad contours of when the use of an ECW is
reasonable under the Fourth Amendment.
For more detail, see Appendix B, which includes a table of important Ninth Circuit ECW
cases. The table lists factors that courts consider in weighing the legitimate need for the
use of ECWs against the seriousness of the intrusion on an individuals Fourth
Amendment interests.

76

U.S. Constitution, Amendment IV (ellipses omitted).

Depending on the circumstances, an excessive force lawsuit might be decided either by a judge or by a
jury. For the sake of simplicity, we will refer to courts deciding legal issues, rather than trying to
account for both possibilities and specifying judge or jury. (Important procedural issues determine
whether a judge decides a case before it reaches a jury, but these issues go beyond the scope of this
report.)
78
Graham v. Connor, 490 U.S. 386, 397 (1989).
79
Meredith v. Erath, 342 F.3d 1057, 1061 (9th Cir. 2003).
80
Gravelet-Blondin v. Shelton, 728 F.3d 1086 (9th Cir. 2013).
77

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DART MODE

The use of ECW in dart mode constitutes an intermediate or medium, though not
insignificant, quantum of force. 81 The law recognizes that ECWs cause immobilization,
disorientation, loss of balance, and weakness, inflicting pain that is intense, is felt
throughout the body, and is administered by effectively commandeering the victims
muscles and nerves. 82 The court has also recognized a risk of serious injury should
intense pain and loss of muscle control cause a sudden and uncontrolled fall. 83
Depending on the circumstances, the law may treat dart mode as more intrusive than
other modes of less-lethal force, like pepper spray or heavy impact weapons, because
an ECW in dart mode intrudes upon the victims physiological functions and physical
integrity in a way that other non-lethal uses of force do not. At the same time, the law
recognize[s] the important role controlled electric devices . . . can play in law
enforcement . . . [when] justified by the governmental interest involved. 84
DRIVE STUN MODE

The Ninth Circuit has not specifically described what level of force is involved when an
ECW is used in drive stun mode. However, an important Ninth Circuit case suggests that
drive stun mode constitutes a lower, but still significant, use of force. 85
USE-OF-FORCE POLICIES

Many law enforcement agencies, including the Berkeley Police Department, employ
written use-of-force policies that specify when it is appropriate for officers to use a given
level of force. Policies are often based on a continuum, a guideline that officers can use
to determine the type of force that may be used in generic situations. The guidelines are
sometimes linked to specific levels of citizen resistance, in an attempt to help an officer
match the level of force she employs to the threat she encounters. 86
A legally sound use-of-force policy represents a distilled version of the Fourth
Amendment framework for reasonable use of force. (For instance, a policy suggesting
that officers may use deadly force in response to impolite language would not be
constitutionally reasonable.) At the same time, use-of-force policies are not identical;

81

See Bryan v. MacPherson, 630 F.3d 805, 825 (9th Cir. 2010) (citations and quotation marks omitted).
Id.
83
Id.
84
Id. at 826.
85
Mattos v. Agarano, 661 F.3d 433, 451 (9th Cir. 2011) (citations and quotation marks omitted).
86
[#33, p. 1516.]
82

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different configurations may provide officers with significantly more or less discretion in
their use of force, so long as the policy stays within the flexible boundaries of
reasonableness. Policies also vary in terms of how the guidelines are expressedsome
are purely verbal, while others employ matrices or visual metaphors, such as ladders,
stairs, or wheels. 87
PERFs 2011 Guidelines include broad recommendations on how ECWs should be
placed in a departmental use-of-force policy. 88 Although specific recommendations
regarding use-of-force integration are beyond the scope of this report, empirical research
offer some perspective on where ECWs often fall within departmental use-of-force
polices.
Two major national studies have surveyed police agencies to determine whether they
employ a use-of-force continuum, and if so, where various tactics and weapons are
placed upon that continuum. Smith et al. found that 88% of agencies surveyed use some
type of force continuum in policy or training. 89 Terrill and Paoline (2012) found over
80% of the respondents indicated that they rely on some type of force continuum. 90, 91
These studies also gathered detailed responses on when respondent agencies authorize
different levels of force, including ECWs. Some agencies view ECWs as a first resort,
whereas others encourage ECW use just prior to deadly force. 92 Most agencies, however,
will fall somewhere in between. The findings of these two leading studies are presented
below. Unfortunately, as with so many aspects of the ECW literature, it is difficult to
directly compare the findings as a result of differences in methodology.
TERRILL AND PAOLINE (2012)

As part of a multi-year, NIJ-funded study of use-of-force policies, researchers William

Terrill and Eugene Paoline sent surveys to a random sample of over 1,000 police and

87

[#33, p. 16.]
PERF Guidelines #25, #27, and #29 recommend that ECWs should be used only against subjects who
are exhibiting active aggression or who are actively resisting in a manner that, in the officers judgment,
is likely to result in injuries to themselves or others. ECWs should not be used on passive, handcuffed,
or fleeing subjects, unless justified by the need to protect suspects, bystanders, or officers.
89
[#21, p. 3-5, 3-7.]
90
[#33, p. 16.]
91
Terrill and Paolines study also sought to determine whether particular force policy designs lead to more
beneficial outcomes for police practitioners. These outcomes included: (a) providing officers assistance
and guidance in making use-of-force decisions (as determined by officers own perceptions), and (b)
reductions in the rates of injuries (to suspects and officers), citizen complaints, and lawsuits levied for
improper force. The results of their analysis fall beyond the scope of our report, but interested readers
should consult their full findings. [See #33.]
92
[#18, p. 39.]
88

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sheriffs departments. They received responses from 662 agencies that represent a range
of sizes; half of the responses came from agencies with between 50250 sworn officers. 93
Terrill and Paoline reported that placing ECWs within the force continuum offered the
greatest challenge for police administrators. Roughly a quarter of the surveyed agencies
placed ECWs at the same level as hard empty-hand tactics (e.g., punches). Another
13% of the agencies placed ECWs alongside pain compliance techniques, such as
pressure-point controls and joint locks. Nearly 60% of the agencies placed ECWs at or
close to the level of impact weapons, including batons. Just 2% placed ECWs at the
level of deadly force. 94 Table II illustrates these summary findings, along with
explanations of the force-categories that Terrill and Paoline used to analyze their data. 95
TABLE II: SUMMARY OF TERRILL AND PAOLINE FINDINGS ON ECW PLACEMENT

96

ECWS PLACED WITH

. . . WHICH INCLUDES

2%

Deadly Force

Handguns, rifles

60%

Impact Weapons

Batons, flashlight strikes, pepper-balls, beanbag guns

25%

Hard Empty Hand

Hand strikes, punches, kicks, take-downs

13%

Pain Compliance

Pressure-point controls, joint locks

0%

Physical Soft

Touching, pat-downs, firm grip, simple restraint

0%

Presence / Verbal

SMITH ET AL. (2010)

Smith et. al worked with the Police Executive Research Forum to survey a sample of
1,000 police agencies on their use-of-force policies and outcomes. They received

93

[#33, p.15.]
[#33, p. ii.]
95
Table II is not meant to reflect the way that agencies rank force categories relative to one another;
obviously, deadly force will always rank highest. One of the purposes of Terrill and Paolines study was
to document the many variations in how agencies position these categories, as detailed in their full study
report. Table II places the categories in this arbitrarily chosen order for the sake of clarity only.
96
[#33, p. ii.]
94

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responses from 518 agencies, and weighted the responses based on the size and location
of the agencies, aiming to present a composite picture of law enforcement nationwide. 97
To account for the fact that agency policies often categorize levels of force or resistance
differently, their survey used several different approaches to collecting data on the
placement of ECWs within the force continuum.
First, the survey asked agencies to consider several hypothetical questions, and to report
what type of force would be authorized in response under their policy. The questions
were essentially variations on the same basic scenario: a traffic stop for a minor moving
violation during daytime hours, in which the suspect and the police officer are matched in
size and build. 98 Answers to these scenario questions showed that:

Roughly one quarter of the agencies authorize the use of ECWs to overcome
passive resistance, such as when a suspect sits down and refuses to comply with
police commands. 99

When confronted with defensive resistancethe most frequent type of

resistance encountered by officers60% of the agencies allow the use of an
ECW. (In the surveys defensive resistance scenario, the suspect tenses and
pulls away when the officer attempts to handcuff him.)

Once the suspects resistance level becomes threatening, 70% of agencies

surveyed allow the use of an ECW. 100

The survey also asked respondents to determine whether ECWs are placed above, below,
or at the same level as nine other types of force. These ranking questions tried to
account for agencies different methods of grouping force in two ways: First, the
respondents were asked to rank ten types of force on a scale of 1 to highest, rather
than using a specific number for the upper boundary (because, for instance, one agencys
policy might recognize three levels of force, while another might recognize five).
Additionally, the agencies were allowed to indicate the same number for multiple types
of force if those tactics were grouped at the same level in the use-of-force continuum. 101
Table II below illustrates how the ten types of force are ranked based on an average of
the responses from the 518 agencies that returned the survey. Agencies that employed

97

[#21, p. 3-5.]
[#21, p. 3-9.]
99
Notably, this represents a divergence from the 2011 PERF Guidelines.
100
[#21, p. 8-5.]
101
[#21, p. 3-21.]
98

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ECWs generally place ECWs at the same level as chemical agents, such as pepper spray,
in their force continuum. Agencies vary as to the placement of ECWs relative to strikes
or punches, but ECWs are generally placed lower on the continuum than impact
weapons. 102
TABLE III: SMITH ET AL. SURVEY ON FORCE RANKING

103

TYPE OF FORCE

AVG. FORCE SCORE

Firearms

5.5 (Highest Level)

Kinetic weapons or munitions (e.g., beanbag projectile)

4.4

Incapacitation holds (e.g., neck restraints)

4.4

Batons /impact weapons

4.1

Chemical / kinetic hybrids (e.g., pepper filled projectiles)

4.0

Strikes / punches

3.3

ECWs

3.1

Chemical sprays (e.g., pepper spray)

2.6

Control holds (e.g., escort, pain-compliance holds)

2.1

Verbal commands

1.0 (Lowest Level of Force)

CONCLUSION

Use-of-force policies reflect the decisions of police officers and elected officials, and
ideallythe values of the community itself. If the Berkeley Police Department were to
launch an ECW pilot program, the city and its leaders would need to determine how to

102
103

[#21, p. 3-26.]
[#21, p. 3-22.]

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integrate ECWs into the departments current use-of-force policy. Any debate involved in
making that decision, however, could be expressed in terms of a familiar constitutional
framework.

Part 3:

Effects on Public Safety

Proponents of ECWs argue that the devices provide significant public safety benefits.
Specifically, advocates assert that ECWs replace the use of lethal force, or reduce injuries
to police officers and/or suspects. What follows is an attempt to unpack and address these
public safety questions, surveying the extant literature in order to determine whether the
empirical evidence supports these claims.
HOW TO READ THE EVIDENCE
UNPACKING THE QUESTION

Assessing whether ECW are effective requires careful consideration of several

different questions:
(1)

Do ECWs replace use of lethal force (gunfire)?

(2)

Do they reduce [non-lethal] injuries to officers?

(3)

Do they reduce [non-lethal] injuries to suspects?

(4)

Are there alternative practices or tools that would accomplish these goals,
other than deploying electronic control weapons (such as Crisis
Intervention Teams, or a focus on de-escalation)?

Over the past 15 years, researchers have produced a rich, complex, and sometimes
conflicting body of literature to determine the impact of ECW adoption on important
policy outcomes related to policing. These studies have become more thorough and more
sophisticated with the passage of time. The following section surveys this literature and
explains its key findings. However, in order to interpret these findings, it is essential to
recognize their underlying limitations.
NOTES ON EXPERIMENTAL DESIGN

The ideal way to answer these questions with evidence-based, scientific precision would
be to conduct a randomized controlled trial, the gold standard of experimental design
used for applications such as pharmaceutical trials. Of course, such an experiment would
be impossible. While a medical researcher can recruit people for a study, randomly assign
them to a treatment and a control group, and then compare the results for each group,
social scientists cannot conjure up two identical cities, equip one citys police department
31

39

with ECWs, and then compare the public safety outcomes between the two. Thus, the
literature on the impact of ECWs includes studies that vary widely in the strength of their
experimental design and the quality of the underlying data.
The earliest evidence offered to show the real-world impact of ECW adoption often came
from individual departments that published internal statistics from before and after the
adoption of ECWs. In the mid-2000s, independent researchers also began to evaluate and
publish studies based on data gathered from individual departments. Although the results
of single-department studies widely publicizedperhaps contributing to the development
of the conventional wisdom around ECW effectivenesstheir findings are of limited
value. These straightforward before and after analyses suffer from threats to internal
validity and did not measure the effect of [ECWs] on injury risk controlling for
situational factors and other types of force used in conjunction with [ECWs] during any
given force incident. 104
Over time, the research has evolved, as researchers have conducted larger-scale studies
that employ more robust designs, such as quasi-experimental comparisons of multiple
cities over multiple years. We have focused on these later studies, which present more
meaningful conclusions by taking steps to account for the differences between cities. At
the very least, studies must control for aggregate-level factors (such as the citys
population size and density, crime rate, number of sworn officers per 10,000 residents,
racial composition, median household income, percentage of population unemployed,
etc.). That information is readily available and crucial if results from different
jurisdictions are to be in any way comparable to one another.
The most useful source of data for researchers attempting to answer these questions
comes from special reports that officers in some jurisdictions are required to file after an
incident in which they have used force. Researchers try to identify jurisdictions where
officers are required to complete a standard form that includes crucial information such
as the level of force an officer used, what resistance she encountered, and whether the
police officer or the suspect sustained an injury. By assigning numerical values to events
described in use-of-force reports, researchers can analyze and report on correlations
between them.
Ideally, incident reports would also include information that would allow researchers to
assess how officers and citizens interact in a given encounter (including the impact of the
officers level of training and experience, as well as the age, race, and sex of everyone
involved). Coding these factors allows researchers to include incident-level controls in

104

[#19.]

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their statistical models, which can better account for the true impact of ECWs, while
controlling for other factors.
Due to differing policies among police departmentstoward use and documentation of
forceresearchers struggle to find data from which reliable conclusions can be drawn.
To a large extent, this is a result of the decentralized nature of law enforcement in the
United States. As noted above, there are at least 18,000 state and local law enforcement
agencies, which set their own standards regarding how to report force, or whether to
make special reports at all. 105 Even the most comprehensive and sophisticated studies are
limited by these structural limitations to gathering comparable data. 106
LIMITATIONS OF THE RESEARCH
DUPLICATIVE USE OF DATA

Throughout the ECW literature, the redundant use of key sources can create a false sense
of consensus around key issues. Because quality data is so hard to come by, researchers
may end up publishing multiple papers based on a single dataset. Any flaws, biases, or
omissions within a dataset will be reproduced in the resulting papersyet it is often
difficult to determine the precise source of the data being used in a particular paper. Thus,
the literature suffers from being both too specific and too general at the same time.
Meanwhile, the sheer volume of studies and the rapid development of the literature can
make it difficult to identify valuable sources.
To dispel that confusion, it may help to distinguish between datasets and papers.
Throughout this report, we refer to the results of a researchers surveywhether small or
largeas a dataset. Because of the difficulty and expense involved in collecting useful
data, researchers have conducted a relatively small number of investigations whose scope
will yield a dataset that can support a meaningful conclusion. These studies are frequently
funded through government grants; simply collecting the data can take teams of
researchers many years. Readers will also encounter smaller, less reliable datasets, which
have deficiencies that will be explained below.

105

In the United Kingdom, which began deploying ECWs in 2009, the government tracks and publishes
comprehensive statistics on Taser use. Every incident in which Taser is deployed whether it is fired or
not is recorded by the local police force. The report is sent to the Home Office, which collects data
that provide information as to Tasers operational effectiveness [and] its medical implications, and
makes transparent the levels and types of use by the police. See
https://www.gov.uk/government/collections/use-of-taser-statistics.
106
See, for example, self-assessed limitations in the work of Terrill and Paoline [#33, p. 219225] and
Smith et al. [#21, p. 5-4].

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41

Once researchers have access to a dataset, they will analyze it in various ways and
present their conclusions, ideally through publication in a peer-reviewed journal.
Throughout this report, we will refer to such publications and their conclusionsas a
paper. A paper analyzes and draws conclusions from the information in a particular
dataset. There are far more papers than there are datasets. A paper might be written
by the same researchers who gathered the underlying dataset, or it might be written by
someone who performed an original analysis of a dataset gathered by someone else.
The distinction matters because, as readers or policymakers, we cannot simply read
papers for their claimed findings; we must consider the papers analytical methods and
the quality of the underlying dataset. Decision-makers must assign appropriate weight to
papers based on credible methodology and data, while discounting those of weaker
design. Toward that end, we have paid careful attention to the quality of available
datasets, and the ways they might affect the strength of a papers conclusions.
ROLE OF TASER INTERNATIONAL

Another source of confusion stems from the fact that the scientific and social science
debate about ECW efficacy takes place within close earshot of Taser Internationals
marketing efforts. Readers looking for empirical data should be aware of this. As of June
2015, for instance, Taser Internationals website claims that TASER devices have saved
more than 148,000 lives from death or serious personal injuries, and that approximately
5% of all TASER deployments save a life or prevent serious bodily injury. 107 For the
source of those claims, the site links to a 2009 Field Statistics Overview co-authored by
James Brewer, a paid consultant, and Mark Kroll, a member of the companys corporate
and medical advisory board. 108 The Field Statistics Overview cites early, singledepartment studies, and a vaguely defined broad search for reports relating [ECW]
introduction to officer and suspect injuries. 109 The Taser co-authors admit there are
several limitations to this analysis, because [t]he data were self-reported (often
without independent quality control) and covered varying deployment years. 110
WHAT DOES THE LITERATURE SAY?

107

See Press Room, https://www.taser.com/press/stats. Accessed May 15, 2015.

Chapter 24: Field Statistics Overview, James Brewer and Mark Kroll (2009),
https://www.taser.com/images/promotions-and-campaigns/taser-products-savelives/times_police_used_ecds/downloads/taser_life_saving_field_statistics_brewer_study_2009.pdf.
Accessed June 15, 2015.
109
Id. at 287.
110
Id. at 289.
108

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42

Now that we understand the complexitywhat do the studies actually say, and how
trustworthy are their findings?

35

43

(1) DO ECWS REPLACE USE OF LETHAL FORCE?

Although there is some support for the contention that ECWs replace and reduce the use
of lethal force by police officers, the existing literature cannot strongly support that
conclusion. No comprehensive study has addressed this specific question. Moreover, the
studies that do address the question suffer from methodological concerns.
What follows is an overview of two main bodies of research: the first supports the claim
that ECWs replace the use of lethal force, and the second rebuts this conclusion.
Ultimately, we present the one takeaway most researchers agree on: More research needs
to be conducted before any conclusions can confidently be drawn.
STUDIES SUGGESTING ECW S DO REDUCE LETHAL FORCE

The strongest support for the claim that ECWs reduce lethal force comes from a study by
Frank Ferdik et al. 111 Ferdik relied on a major national dataset compiled by Smith et al. 112
to identify 259 municipal police departments and full-service county sheriffs offices that
deployed ECWs as of 2005. Ferdiks aim was to understand whether use-of-force policies
governing ECWs are associated with fatal police shootings of citizens. 113 First, Ferdik
found that more restrictive ECW policies were associated with fewer ECW deployments
and, conversely, that less restrictive ECW policies were associated with increased ECW
deployments. 114 These findings would suggest that ECW policies directly influence the
frequency with which ECWs are employedthe stricter the regulations, the less often a
police officer will choose to use his or her ECW.
More significantly, Ferdik found that permissive policies toward use of ECWs were
negatively associated with fatal shootings. Use-of-force policies that allowed officers to
use ECWs only on actively resistant suspects (e.g., suspects who are tensing or pulling
away) were significantly associated with increases in the number of fatal police
shootings. 115 Conversely, policies allowing the use of ECWs on passive resisters were
significantly associated with decreases in the number of fatal police shootings. 116 Thus,
only the least restrictive ECW policy appear[ed] to be associated with reductions in fatal
shootings. 117

111

[#20.]
[#21.]
113
[#21, p. 329.]
114
[#21, p. 347.]
115
[#21, p. 348.]
116
[#21, p. 348.]
117
[#21, p. 349.]
112

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44

A critical limit of Ferdiks study is that it is an observational, cross-sectional study. This

means that the study was aimed at describing features and characteristics of a single
moment in time. As Ferdik himself acknowledges, this limits the ability to make any
causal inferences. 118 At most, his research can be said to suggest some relationship
between extremely permissive ECW policies and decreased police shootings. It is
important to note that such a policy would also lead to a larger number of people being
subjected to ECW shock, and in broader range of circumstances, than a more restrictive
policy.
Two jurisdiction-specific studies provide modest support for the contention that ECWs
reduce the use of lethal force.

First, in TASER and Less Lethal Weapons: An Exploratory Analysis of

Deployments and Effectiveness, 119 Charlie Mesloh and Steven Hougland
reviewed 400 use-of-force reports from the Orange County Sheriffs Office
(OCSO) between 2001 and 2003. Within those 400 reports, OCSO officers opted
to deploy ECWs in all situations where deadly force would have otherwise been
justified. 120, 121 Mesloh and Hougland concluded that [r]egardless of the
intention, it is clear that a substantial number of suspects lives were spared as a
result of the TASER deployments. 122

Second, Eastman et al. (2008) devised a jurisdiction-specific study in Conductive

Electrical Devices: A Prospective, Population-Based Study of the Medical Safety
of Law Enforcement Use. 123 The researchers conducted a prospective study of
426 ECW field deployments by the Dallas Police Department between November
2004 and January 2006. The researchers ultimately identified 23 encounters
where lethal force could have been justified, but officers opted to discharge an
ECW instead. 124

118

It is possible, for instance, that agencies experiencing high numbers of lethal police shootings will tend
to adopt less restrictive ECW policies. This limitation speaks to a critical need for research that takes
into account temporal order, such as panel models, interrupted time series, and other quasi-experimental
designs to examine how variation in the structure and implementation of use-of-force policies impacts
fatal police shootings and related outcomes [#20, p. 352.]
119
[#22.]
120
[#22, p. 72.]
121
In Use of Force, Civil Litigation, and the Taser: One Agencys Experience, an additional publication
referencing the Taser and Less Lethal Weapons study, Mesloh and Hougland specify that 18 ECW
deployments by members of the OCSO in 2003 took place when suspect resistance merited the use of
deadly force. [#23, p. 28.]
122
[#22, p. 7273.]
123
[#24.]
124
[#24, p. 1570.]

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45

Finally, three non-jurisdictionally specific studies support the claim that ECWs reduce
the use of lethal force, relying on different methodologies and underlying populations.

First, in The Impact of TASERs on Police Use-Of-Force Decisions: Findings

from a Randomized Field-Training Experiment, William Sousa et al. (2010)
devised a field experiment whereby officers were randomly equipped with ECWs.
The officers then participated in training scenarios involving different levels of
suspect resistance. 125 Sousa et al. concluded that officers carrying ECWs are less
likely to use lethal force than those not equipped with ECWs.126

Second, in Impact of Conducted Electrical Weapons in a Mentally Ill Population:

A Brief Report, 127 Jeffrey Ho et al. analyzed law enforcement data voluntarily
reported to Taser International. 128 Ho et al. specifically assessed ECW
deployment against mentally ill subjects. The researchers concluded that 45% of
ECW deployment against mentally ill subjects occurred in situations where lethal
force would have been justified, or where the subject represented an imminent life
threat to himself. 129

Third, in Conducted Energy Device Use in Municipal Policing, 130 Kyle Thomas
et al. provide questionable and unsubstantiated support for the claim that ECWs
reduce the use of lethal force. In this national study, researchers surveyed 210
municipal police agencies using a questionnaire. The questionnaire asked
agencies about their reasons for adopting ECWs, as well as their experiences
using ECWs. According to the researchers, 56% of agencies reported that ECWs
reduced the use of lethal force. However, this result represents only the subjective
estimates of the respondents.
Thomas et al.s questionnaire asked: In your opinion, has the use of ECWs
reduced the instances of use of lethal force by your officers over the last 12
months? 131 The respondents were then instructed to check the yes or no box.

125

[#25, p. 35.]
[#25, p. 35.]
127
[#26.]
128
Dr. Ho is the Medical Director of Taser International, and co-author Dr. Donald Dawes is an expert
consultant for Taser International. Both men also own shares of stock in the company. Additionally, coauthors Mark Johnson and Erik Lundin work in the Division of Medical and Technical research for
Taser International.
129
[#26, p. 780.]
130
[#27.]
131
[#27, p. 309.]
126

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46

The questionnaire then asked, If Yes, by about what percentage would you
estimate it has declined? 132 Respondents were then provided with a blank space
to fill in their estimates. Significantly, the questionnaire did not require any
substantiation or documentation for these purely subjective estimates regarding
the use of lethal force. As a result, Thomas et al.s study only supports the
conclusion that many agencies with ECWs subjectively perceive that ECWs
reduced the use of lethal force.
STUDIES SUGGESTING ECW S DO NOT REDUCE LETHAL FORCE

The strongest support for the claim that ECWs do not reduce the frequency of lethal force
comes from Comparing Safety Outcomes in Police Use-Of-Force Cases, a PERFsponsored report. 133 There, the PERF research team employed a quasi-experimental
method, comparing seven cities that employed ECWs with six cities that did not. The
researchers compiled four years of data for all 13 cities, and compared pre-ECW and
post-ECW data for the seven cities that employed ECWs. Significantly, the researchers
controlled for particularly robust selection of variables in their analysis. The researchers
controlled for variations in population demographics across cities, and also controlled for
incident-level variations within any given force encounter. Ultimately, the PERF
researchers concluded, On balance, our data suggest that ECWs do not appear to have
much of an effect on officer use of firearms in force incidents. 134
Three jurisdiction-specific studies are also worthy of brief note.

First, in Relation of Taser (Electrical Stun Gun) Deployment to Increase in InCustody Sudden Deaths, Lee et al. (2009) assessed 50 California police and
sheriffs departments that deployed ECWs. 135 Lee concluded that ECWs were not
associated with a decrease in firearm-related deaths. 136

Second, in A Force to be Reckoned With: Taser Policies of 20 Arizona Law

Enforcement Agencies, 137 the ACLU of Arizona reviewed ECW data from 20
Arizona police departments between December 2008 and January 2010. The
ACLU concluded that equipping officers with ECWs does not lower the
frequency of lethal force. 138 Specifically, the information provided by

132

[#27, p. 309.]
[#3.]
134
[#3, p. 41.]
135
[#28.]
136
[#28, p. 877.]
137
[#29.]
138
[#29, p. 17.]
133

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47

departments . . . suggests that Tasers have been deployed in situations where

lethal force would not be allowed, and where less severe uses of force are
available. 139

Finally, in Electronic Control Devices and Use Of Force Outcomes, 140 YuSheng Lin and Tonisha Jones examined over 1,000 use-of-force reports from the
Washington State Patrol (WSP) between 2005 and 2007. The WSP equipped
officers with ECWs in 2006, and Lin and Jones sought to explore their impact on
the WSPs use-of-force practices. Lin and Jones found that when examining
which use-of-force methods were replaced once ECW[s] were officially adopted
as a use-of-force method by the WSP, it was found that only the non-lethal force
method categories were replaced by ECW. 141 The authors concluded [t]he
adoption of ECD by the WSP did not result in the dramatic reduction of frequency
of use of lethal force hoped for from the decision to adopt the universal equipping
of WSP troopers with ECD. 142
It is important to note that Lin and Jones findings may be limited by the fact that
their underlying dataset stems from a project funded by the National Highway
Traffic Safety Administration. As a result, the data consists primarily of force
incidents connected to traffic stops. Traffic stops may be an atypical source of
force incidents for certain law enforcement agencies.

CONCLUSION: SCANT EVIDENCE EXISTS THAT ECW S REDUCE LETHAL FORCE,

AND MORE RESEARCH IS NEEDED

With regard to whether ECWs reduce the frequency of lethal force, researchers agree on
only one point: More research is needed in this area. Even the strongest proponents of
ECWs have conceded as much. For example, while Ferdik hypothesizes that the early use
of an ECW in a force encounter likely prevents the need to use deadly force, he notes that
the relative paucity of research on this topic and the equivocal findings produced to date
warrant additional investigation. 143
Geoffrey Alpert and Roger Dunham perhaps put it best, explaining: The argument that is
made by law enforcement is that most if not all of the participants who died when
shocked by an ECW would have died if the officers had controlled and arrested them in a

139

[#29, p. 17 (emphasis added).]

[#30.]
141
[#30, p. 171.]
142
[#30, p. 171.]
143
[#20, p. 335.]
140

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more traditional hands-on fight, or used deadly force. At this point, the argument is
rhetorical, and research is needed[.] 144
(2) DO ECWS REDUCE INJURIES TO OFFICERS?

One of the frequently touted benefits of electronic control weapons is that they reduce
injuries to police officers. ECWs are thought to reduce injuries by allowing officers to
incapacitate subjects without the need to apply any physical force, a common source of
injury for police officers. 145 By allowing the officer to subdue a suspect from a distance
of perhaps 20 feet away, ECWs are thought to help officers avoid some degree of
physical danger.
While the research on officer injuries is by no means unequivocal, there is significant
support for the contention that ECWs reduce injuries to officers to some degree. What
follows is an overview of the research that suggests ECWs reduce officer injuries,
followed by an overview of research that questions that premise. Significantly, no
research suggests that ECWs increase injuries to police officers. However, the studies do
vary regarding whether, and the extent to which, ECWs reduce officer injuries.
FINDING: ECW S REDUCE INJURIES TO OFFICERS

Three major national studies support the view that ECW adoption reduces the risk of
injury to officers.
PAOLINE ET AL.

In Police Use Of Force and Officer Injuries, Eugene Paoline et al. assessed the
independent effect of ECWs on officer injuries. 146 Paoline et al. measured the effects of
ECWs when used alone or in conjunction with other forms of force. Relying on the
dataset gathered during their multi-year, NIJ-funded study, 147 Paoline et al. reviewed
12,000 use-of-force reports gathered from six law enforcement agencies. Paoline et al.
employed a multivariate model with a very robust series of controls. The authors
controlled for variation at both the aggregate level (e.g., demographic differences) and
the incident level (e.g., levels of suspect resistance) in order to better isolate the

144

[#19, p. 254.]
See, e.g. #31 at p. 2272 ([W]e found that the use of physical force by police increased the odds of
injury to suspects and officers), and #32 at p. 128 (Thus, all else being equal, if an officer is trying to
decide whether to use an ECW or go hands-on, our findings show there is a benefit to using an ECW (at
least in terms of officer injury) so long as no other force is being used along with the ECW).
146
[#32.]
147
[#33.]
145

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independent effect of ECWs. 148 The authors measured officer injuries in three different
use-of-force situations: Situations where no ECW was employed, situations where only
ECWs were employed, and situations where ECWs were employed along with another
type of force. 149
Paoline et al. reached three main conclusions. First, the risk of officer injury decreased
when officers used an ECW and no other type of force, as compared to instances where
no ECW was used. 150 Second, when ECW-only cases were compared directly to cases
involving hands-only tactics, [there was] a reduced likelihood of officer injury. 151
Finally, where officers used an ECW in combination with some other type of force, the
risk of officer injury increased. 152 The researchers note that most injuries in this category
occurred where ECWs were used in combination with hands-only tactics. 153 The authors
results are summarized in Table IV:
TABLE IV: PAOLINE ET AL. CONCLUSIONS REGARDING OFFICER INJURY

COMPARISON

IMPACT ON OFFICER INJURY

ECW-only v. No ECW

Decreased

ECW-only v. Hands-only

Decreased

ECW + Other Force v. Other Weapon

(baton, pepper spray)

Increased

SMITH ET AL. (2010) PART VI

The second major national study is Part VI of A Multi-Method Evaluation of Police Use
of Force, 154 conducted by Smith et al. In Part VI, the authors examined over 8,000 useof-force reports from Austin, Texas and Orlando, Florida. The researchers employed a
quasi-experimental approach, comparing data for the sites both pre- and post-ECW
deployment. 155 The authors found that officer injury rates in the post-ECW deployment

148

[#32, p. 123.]
[#32, p. 123.]
150
[#32, p. 128.]
151
[#32, p. 128.]
152
[#32, p. 128.]
153
[#32, p. 130.]
154
[#21.]
155
[#21, p. 6-1.] It is important to note that the Austin Police Department (APD) data suffers from some
limitations. While some APD use-of-force reports involved a lone officer and a lone suspect, others
149

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50

period were lower than would be expected from the pre-ECW period. 156 The authors
concluded that ECWs decrease injuries to officers. 157
PERF (2009)

The PERF-sponsored study discussed earlier, Comparing Safety Outcomes in Police

Use-Of-Force Cases, 158 provides the third major set of findings on this topic. There, the
research team employed a multivariate, quasi-experimental model. The researchers
selected 13 cities using a matching analysis, and divided the group so that they could
compare seven law enforcement agencies (LEAs) that had adopted ECWs to six LEAs
that had not adopted ECWs. Within the LEAs that deployed ECWs, researchers collected
two years of data pre-ECW adoption and two years of data post-ECW adoption. Within
the LEAs that did not have ECWs, researchers collected at least four years of data.
Additionally, the researchers controlled for a variety of incident- and aggregate-level
factors over the four-year examination period.
The PERF study concluded that ECWs were associated with large reductions in the
frequency of non-severe injuries to officers (e.g., abrasions, burns, or punctures). The
research team found no difference between ECW and non-ECW sites with respect to the
frequency of severe injuries to officers (e.g., broken bones).
Ultimately, all three national studies concluded that ECWs reduce injuries to officers.
Notably, the three studies employed distinct methodologies to reach that result. Much of
the criticism surrounding the validity of ECW research stems from claims of flawed or
improper methodology. As a result, it is significant that three major studies with different
methods and datasets nevertheless concluded that the devices reduce injuries to officers.

involved multiple officers or suspects. In this latter category, the APD often created multiple records for
the same single incident. Researchers were unable to identify whether some use-of-force reports
involved the same underlying incident. Additionally, the APD phased in ECWs slowly, and researchers
thus had to arbitrarily select July 2003 as the intervention point even though there was substantial
ECW deployment in the APD prior to this intervention date.
156
[#21, p. 6-8.]
157
[#21, p. 6-8.]
158
[#3.]

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FINDING: ECW S DO NOT REDUCE INJURIES TO OFFICERS

MACDONALD, ET AL. (2009)

One major study explicitly found no relationship between ECW use and officer injury,
but it suffers from significant data problems. In The Effect of Less-Lethal Weapons on
Injuries in Police Use-Of-Force Events, 159 MacDonald et al. analyzed 24,000 use-offorce reports from 12 police departments that documented injuries to officers and
citizens. The researchers relied upon the Smith et al. national dataset. 160, 161 The authors
employed a multivariate analysis to determine whether the use of less-lethal weapons
including both ECWs and pepper sprayreduced injuries to officers and suspects.
Ultimately, the researchers found no relationship between ECW use and officer injury. 162
However, this study is limited by the fact that the use-of-force reports from the 12
agencies varied widely both in terms of their quality and the number of variables
available for analysis. 163 While the data collected was useful for other issues examined
by the larger study, the authors acknowledge that the limitations were much more
problematic for the proposed multiagency analysis. 164 Thus, although the MacDonald et
al. study questions the relationship between ECWs and officer injuries, it lends only
limited support to the proposition that no relationship exists.
SMITH ET AL. (2010) PART VI

A subsequent section of Smith et al.s Multi-Method Evaluation 165 provides modest

support for the claim that ECWs have no impact on officer injuries. In Part IV of that
study, the authors examined use-of-force reports from three LEAs that use ECWs: the
Miami-Dade Police Department (MDPD), the Seattle Police Department (SPD), and the
Richland County Sheriffs Department (RCSD). 166 The authors concluded that in both

159

[#31.]
[#21.]
161
The MacDonald et al. study [#31] was also published as Section V of the Smith et al. study, A MultiMethod Evaluation of Police Use of Force. [#21.] MacDonald et al.s 2009 publication explicitly notes
that additional details regarding the study are available in A Multi-Method Evaluation. [#21.] As a
result, the following analysis relies on information published in both MacDonald et al. (2009) [#31] and
Smith et al. [#21].
162
[#31, p. 2270.]
163
[#21, p. 5-4.]
164
[#21, p. 5-4.]
165
[#21.]
166
In The Impact of Conducted Energy Devices and Other Types of Force and Resistance on Officer and
Suspect Injuries, [#34], Smith et al. reproduce essentially the same findings as Section IV of MultiMethod Evaluation, but exclude the SPD from the analysis. It is not clear why Smith et al. chose to
exclude SPD from the analysis in The Impact of Conducted Energy Devices. However, it is important
160

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the SPD and the RCSD, ECW use had no statistically significant impact on officer
injuries. 167 ECWs were only associated with a decrease in officer injuries at the
MDPD. 168
The authors hypothesized that these differences were causaully related to the fact that
RCSD and SPD officers had the option to use pepper spray, while MDPD officers did
not. 169 The RCSD had a long history of pepper spray use, in contrast to its relatively
recent adoption of ECWs. As a result, RCSD officers might have employed pepper spray
more frequently than ECWs, thus limiting the impact of ECWs on officer injuries. No
evidence was offered to support this hypothesis.
Section IV of the Smith et al. study suffers from some significant limitations. First,
although the dependent variables remained consistent across the three locations, the
independent variables differed greatly as a result of variation in the detail and quality of
use-of-force reports. Moreover, although the authors acknowledged the stark
demographic differences between the three locations (e.g., differences in size of
population served, number of sworn officers, and racial composition of the population),
they did not employ aggregate-level controls to account for these differences. Indeed, in
their attempt to justify their conclusions, Smith et al. suggest that if the three sites had a
similar history with the same less-lethal weapons options, [perhaps] the findings would
have been more comparable. 170 In reviewing Smith et al.s findings from this section, it
is important to keep these limitations in mind.
(3) DO ECWS REDUCE NON-LETHAL INJURIES TO SUSPECTS?

At first glance, the literature appears to clearly establish a relationship between ECWs
and reduced injuries to suspects. Many researchers have found such a correlation, and
their work has in some ways been accepted as conventional wisdom. 171 However, this
dominant narrative masks a more complicated body of research that casts doubt on the
conclusion.
In order to accurately assess the impact of ECWs on suspect injuries, one must first
clearly define the term injury. As explained below, researchers have taken many

to recognize throughout the ECW literature that there are many redundancies, and that these
redundancies can create a false sense of consensus.
167
[#21, p. 4-18.]
168
[#21, p. 4-18.]
169
[#21, p. 4-18.]
170
[#21, p. 4-19.]
171
See, e.g., Interim Report of the Presidents Task Force on 21st Century Policing (March 2015), p. 38
(Studies of [ECWs] have shown them to be effective at reducing both officer and civilian injuries).

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53

different approaches to defining this term. Because of this variation, it is difficult to draw
broad conclusions across studies.
The most significant distinction is one of specificity. Some researchers assess general
rates of suspect injury, broadly defined to include anything from a laceration to a
contusion. When these researchers refer to rates of suspect injuries, they are referring
to any ECW-related injury to a suspect. In contrast, a second group of researchers
approaches the same question with a greater degree of specificity. This group of
researchers divides suspect injuries into different levels of severity (e.g., minor,
moderate, and major injuries). It is important to recognize when a study is referring to the
general rate at which suspect injuries occur, as opposed to rates of injury organized by
severity.
There is no simple yes or no answer to the question of whether ECWs reduce injuries
to suspects. The existing research provides guidance only to the extent that one agrees
with a researchers underlying definitions. As explained more fully below, within the
injury occurrence analyses, researchers disagree as to which ECW-related impacts are
worth counting as injuries. Do scrapes count as injuries? Do cuts or bruises from ECW
barbs count? Similarly, within the analyses measuring injury severity, there is
disagreement regarding where to place certain injuries on the spectrum of severity.
What follows is an attempt to unpack the question of suspect injury more fully. In doing
so, we hope to illustrate how the answer to the question turns primarily on choices about
what should be counted as an injury. The discussion might seem technical, but the
difference is more than just semantic, for it may well determine the answer to one of the
most important questions about ECWs and public safety.
We begin with the research regarding general rates of suspect injuries, followed by an
overview of the research that analyzes injury severity.
GROUP 1: STUDIES MEASURING OCCURENCE OF SUSPECT INJURY

When assessing how ECWs impact suspect injuries, many studies do not account for
variations in injury severity. In these generalized analyses, the key inquiry is not whether
an injury should be classified as minor or major, but rather whether a particular harm
should be counted as an injury at all.

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54

TWO LARGE STUDIES AND ONE SMALLER STUDY SUGGEST THAT ECW S REDUCE
SUSPECT INJURIES

In The Effect of Less-Lethal Weapons on Injuries in Police Use-Of-Force Events 172

a study discussed aboveMacDonald et al. examined use-of-force reports across 12
police departments. The researchers relied on the Smith et al. dataset. 173 Employing a
multivariate analysis, MacDonald et al. concluded that physical force increases the odds
of injury to suspects, while the use of less-lethal weapons (such as pepper spray or
ECWs) decreases the odds of suspect injury. 174
The second large study is Comparing Safety Outcomes in Police Use-Of-Force Cases,
the PERF-sponsored study (also discussed above in the section on officer safety). 175 In
this study, PERF researchers employed a quasi-experimental model, matching seven
LEAs with ECWs to six LEAs without ECWs. The researchers concluded: Our results,
across all of our analyses, demonstrate that ECWs are related to reductions in suspect
injuries. 176
One smaller dataset provides further support for the claim that ECWs reduce injuries to
suspects, but this dataset examines only three agencies. In Section IV of Smith et al.s
Multi-Method Evaluation, also discussed above, the researchers examined use-of-force
reports from three LEAs that deploy ECWs: Miami-Dade Police Department (MDPD),
Seattle Police Department (SPD), and Richland County Sheriffs Department (RCSD). At
the MDPD and SPD, ECWs were associated with a decrease in suspect injuries. In
contrast, ECWs had a statistically insignificant impact on suspect injuries at the RCSD.
A RECENT MAJOR STUDY CHALLENGES THE VIEW THAT ECWS REDUCE
OCCURRENCE OF SUSPECT INJURIES

In Conducted Energy Devices and Citizen Injuries: The Shocking Empirical Reality, 177
William Terrill and Eugene Paoline examined 14,000 use-of-force reports provided by
seven different LEAs. The researchers relied on their dataset from their multi-year
national study, Assessing Police Use of Force Policy and Outcomes. 178 In Shocking

172
173

[#31.]
The MacDonald et al. study [#31] was also published as Section V of the broader Smith et al. study,
Multi-Method Evaluations [#21]. MacDonald et al. explicitly note that details regarding their study
are available in Section V of the Smith et al. study. As a result of this overlap, the following analysis
relies on information published in both #31 and #21.

174

[#31, p. 2272.]
[#3.]
176
[#3, p. 62.]
177
[#35.]
178
[#33.]
175

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55

Empirical Reality, Terrill and Paoline selected seven LEAs for analysis because of their
key demographic similarities (e.g., similarities in crime rates, number of sworn officers,
and other socioeconomic indicators). 179
Terrill and Paoline designed a sophisticated series of multivariate models in order to
assess the impact of ECWs on suspect injuries when used alone or in combination with
other types of force. 180 According to the researchers, The importance of these variable
splits should not be understated as they allow us to address one of the primary
deficiencies of past studiesisolating and teasing out the influence of ECWs on citizen
injuries. 181 Finally, Terrill and Paoline employed a robust series of control measures. 182
Terrill and Paoline concluded that ECW use, whether on its own or in combination with
other forms of force, increased injuries to suspects. 183 The only time we found a
decreased probability associated with the use of ECWs was when we compared them to
impact weapons; and the only time we found a similar injury risk was when comparing
ECWs to hard-hand tactics, such as striking a suspect. 184
ACCOUNTING FOR THE DIFFERENCE

How can we explain these conflicting results? How did Terrill and Paoline conclude that
ECWs increase suspect injuries, while most other researchers concluded that ECWs
decrease injuries to suspects?
Terrill and Paoline acknowledge that their results differ from those in the MacDonald et
al. (2009) and PERF (2009) studies, which also involved large sample sizes and
comparisons of multiple agencies that employ ECWs. 185 Terrill and Paoline suggest that
their findings differ because of the way in which they define suspect injury. 186

179

[#35, p. 160.]
Terrill and Paolines primary dependent variable was a dichotomous yes/no measurement of any
citizen injury. [#35, p. 162.] The independent variable was type of force, which was broken down
into a weaponless tactics category (e.g. grips, hand controls, etc.) as well as a weapon-based tactics.
category (e.g. ECWs, OC spray, munitions, dogs, and firearms). [#35, p. 163.] These categories were
then split into three primary dichotomized variables (ECW only, ECW with other force, and no ECW),
which were broken down further still. [#35, p. 163.]
181
[#35, p. 164.]
182
[#35, p. 16465.]
183
[#35, p. 17172.]
184
[#35, p. 176.]
185
[#35, p. 178.]
186
[#35, p. 178.]
180

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Critically, Terrill and Paoline note that the MacDonald et al. and PERF studies do not
classify lacerations from ECW barbs, or burns and abrasions from an ECW in drive stun
mode, as falling within the definition of suspect injuries. 187 In fact, both MacDonald et
al. and PERF explicitly refused to classify these events as injurieseven where officers
had originally opted to classify them as injuries in their use-of-force reports. As the PERF
study explained,
[S]ome LEAs counted skin irritation from pepper spray and ECW dart
punctures as injuries. However, this is inconsistent with how we
operationalized injuries from these devices in this study . . . details in the
narratives allowed us to recode these cases. (ECW dart wounds to
unapproved targets, such as the groin or face, were counted as injuries,
however.) Unfortunately, this recoding could not be done in all datasets,
due to the lack of data in some narratives regarding injuries. 188
Terrill and Paoline suggest that these definitional differences regarding what constitutes a
suspect injury account for their conclusion that ECWs increase injuries to suspects.
Kaminski et al. responded to Terrill and Paolines critique in a later study, A Quantum
of Force: The Consequences of Measuring Routine Conducted Energy Device Punctures
as Injuries. 189, 190 There, Kaminski et al. examined 2,500 use-of-force reports from a
large West Coast LEA throughout 2005. 191 Their aim was to create a model that would
test the validity of Terrill and Paolines hypothesis. To do so, Kaminski et al. created a
dichotomous measurement (injury or no injury) using two different models. The first
model excluded ECW punctures from the injury category. 192 The second model
included all ECW puncture wounds in the injury category (just as Terrill and Paoline
had.) 193 Additionally, Kaminski et al. isolated the independent impact of ECWs by
incorporating three different measurements of ECWs (no ECW, ECW only, and ECW
plus other form of force).

187

[#35, p. 178.]
[See #3, p. 28; see also MacDonald et al, #31, p. 2273 (When the type and cause of injury were
available, we coded minor barb punctures and skin irritation as non-injuries so as not to confound the
injury analysis. Had we been able to identify and remove all such cases, the observed reductions in
injury rates might have been greater.).]
189
[#36.]
190
Kaminski was also co-author in the MacDonald et al. (2009) study.
191
The underlying data comes from one of the 12 agencies in Section V of the Smith et al. study. [#21.]
192
[#36, p. 10.] The researchers excluded only those ECW punctures that occurred in an approved target
area. Where an ECW puncture occurred in an unapproved target areasuch as the head, face, or
grointhe researchers included the puncture as an injury.
193
[#36, p. 10.]
188

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Kaminski et al. confirmed Terrill and Paolines speculation that the inclusion of barb
punctures as injuries alters the ultimate result. 194 According to Kaminski et al., when
barb punctures are excluded from the category of injuries, ECWs are associated with
reductions in suspect injuries, or have no impact on suspect injury rates. 195 In contrast,
when barb punctures are included in the category of injuries, ECWs consistently
increase suspect injury rates. 196
Kaminski et al. present a series of policy arguments regarding why puncture wounds
from ECW barbs should not be counted as injuries. 197 It is worth noting, however, that in
a 2010 case the Ninth Circuit Court of Appeals defined injuries in a manner more
consistent with the approach adopted by Terrill and Paoline:
There is an obvious and critical distinction between concluding . . . that
Tasers cause mild (rather than serious or fatal) injuries on the one
hand and suggesting that Tasers cause no injuries on the other. Most of
the mild injuries described in [one study cited by the dissenting
opinion] were superficial puncture wounds from the Taser darts, but
the fact that puncture wounds through the skin are classified as
superficial rather than as serious or life-threatening does not mean
that such wounds are insignificant. In fact, such superficial barbed dart
injuries have the potential to be quite significant. 198
GROUP 2: STUDIES MEASURING SEVERITY OF SUSPECT INJURIES

A second major body of research examines the impact of ECWs on suspect injuries by
measuring the severity of suspect injury, as opposed to the broad question of whether or
not ECWs reduce the occurrence of suspect injuries, which was addressed in the Group 1
studies above.
Three major studies address the impact of ECWs on the severity of suspect injury. By
examining the injury question with greater precision, the Group 2 studies provide
important context in assessing the comparative benefits and drawbacks of ECWs.
However, it is difficult to reach clear conclusions regarding the impact of ECWs on
injury severity because researchers have defined injury categories in so many different
ways. As a result of these differences, the studies produce results difficult to compare.

194

[#36, p. 18.]
[#36, p. 1415.]
196
[#36, p. 1415.]
197
[#36, p. 18.]
198
Bryan v. MacPherson, 630 F.3d 805, 81314 (9th Cir. 2010) (citations omitted).
195

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Broad conclusions are thus not possible, and each study must be understood in the
context of its own definitional nuances.
PERF (2009)

In Comparing Safety Outcomes in Police Use-Of-Force Cases 199a PERF-sponsored

study discussed aboveresearchers analyzed suspect injury severity using a series of
dichotomous variables, ranging from the least serious injury to the most serious. First, the
PERF study examined suspect injury, measured as a dichotomous yes/no variable
for any impairment or pain a suspect feels due to an officers actions. Next, the PERF
study measured suspect injury severity, a dichotomous variable (minor/ severe)
that separates minor injuries (including bruises, lacerations, burns, and punctures) and
severe injuries (including broken bones, stab wounds, and gun wounds).
The PERF study also examined suspect injury requiring medical attention, a
dichotomous yes/no variable indicating whether the suspect was seen by any medical
professional (whether on the scene or in a hospital). The study also measured suspect
injury requiring hospitalization, another dichotomous yes/no variable indicating
whether the suspect was taken to a medical facility for treatment (although not
necessarily admitted). Finally, the PERF study measured suspect death using a
dichotomous yes/no variable. A summary of PERFs severity measures is shown in
Table V:
TABLE V: SEVERITY MEASUREMENTS USED IN PERF STUDY

INJURY MEASUREMENT

BINARY CODED VARIABLES

Suspect injury any impairment

(broadly defined)

Yes or No

Suspect injury severity

Minor bruises, lacerations, burns, punctures

Severe broken bones, stab wounds, gun wounds

Suspect injury requiring medical

attention

Yes or No

Suspect injury requiring

hospitalization

Yes or No

Suspect death

Yes or No

199

[#3.]

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59

The PERF study ultimately concluded that ECWs are associated with a reduction in
severe suspect injuries, a reduction in suspect injuries requiring medical attention, and a
reduction in suspect injuries requiring hospitalization. The researchers concluded that
ECWs have no impact on the number of suspect deaths, although they admit that their
results may not be generalizable due to a small and underpowered sample size (44 total
suspect deaths).
TERRILL AND PAOLINE (2012)

In the Terrill and Paoline study previously discussed, Conducted Energy Devices and
Citizen Injuries: The Shocking Empirical Reality, 200 Terrill and Paoline also examined
suspect injury severity. In addition to their examination of how ECWs impact the
occurrence of suspect injuries, the researchers conducted a secondary analysis that
incorporated two ordinal dependent variables. The first dependent variable was injury
type, which was coded into four levels: no injury (zero), bruises/abrasions (minor),
lacerations (moderate), and broken bones (major). 201 The second dependent variable was
hospitalization, which was coded into three levels: no injury, injury but no transport to
hospital, and injury with transport to hospital. 202 The study variables are illustrated in
Table VI:
TABLE VI: SEVERITY MEASUREMENTS IN TERRILL & PAOLINE STUDY

INJURY MEASUREMENT

CODED VARIABLES

Injury type

Zero (no injury)

Minor (bruises or abrasions)
Moderate (lacerations)
Severe (broken bones)

Hospitalization

No injury
Injury but no hospital
Injury + transport to hospital

Terrill and Paoline note the challenges of measuring injury severity, as there is always
debate regarding where to place each type of injury on the severity spectrum.

200

[#35.]
[#35, p. 162.]
202
[#35, p. 162.]
201

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As the authors explained,

[W]e conservatively placed lacerations in the moderate category, given
the potential for blood being drawn, and hence more serious than
bruises. However, one could also argue that not all lacerations are the
same (e.g., a small cut being less serious than a 20-stitch wound),
although we were unable to make this distinction in the data. Taking it
one step further, one may argue that a broken finger is less serious than a
deep bone bruise or a 20-stitch laceration. Hence, given the potential
variability in constructing our first measure, we incorporate a second
ordinal dependent variable involving hospitalization. 203
Terrill and Paoline ultimately concluded that the severity of suspect injuries increases
when ECWs are used on their own, or in combination with other forms of force. 204 The
only time ECWs decrease the likelihood of serious injury is when they are compared to
impact weapons. 205
KAMINSKY, ET AL. (2013)

Finally, in a previously discussed Kaminski et al. study, A Quantum of Force: The

Consequences of Measuring Routine Conducted Energy Device Punctures as Injuries, 206
Kaminski et al. assessed how the inclusion or exclusion of barb punctures impacted the
severity of suspect injuries. 207 There, Kaminski et al. measured injury severity as a
dependent variable, coded as no injury, minor injury, or major injury. Kaminski et
al. then altered the placement of barb punctures within these categories to reflect Terrill
and Paolines preferred placement on the severity index, as well as their own.
In the model preferred by Kaminski et al., the variables are defined as follows: no injury
(barb punctures to approved targets), minor injury (bruises, sprains, scrapes, soft tissue
damages), and major injury (fractures, lacerations, dog bites, concussions, gunshot
wounds, or puncture wounds to unapproved targets). In the model preferred by Terrill
and Paoline, the variables are defined as follows: no injury, minor injury (barb wounds to
approved targets, bruises, sprains, scrapes, soft tissue damages), and major injury
(fractures, lacerations, dog bites, concussions, gunshot wounds, or puncture wounds to
unapproved targets).

203

[#35, p. 162.]
[#35, p. 175.]
205
[#35, p. 176.]
206
[#36.]
207
[#36.]
204

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The authors concluded that counting ECW [barb] punctures does not change the rate of
major injuries, but does increase the minor injury rate . . and decreases the no injury
category. 208 These definitions are summarized in Table VII:
TABLE VII: COMPARING INJURY VARIABLES IN KAMINSKI ET AL. TO TERRILL &
PAOLINE

INJURY SEVERITY
MEASUREMENT

CODED VARIABLES

Kaminski et al.
Approach

No injury *dart puncture wounds to approved targets.

Minor injury bruises, scrapes, sprains.
Major injury fractures, lacerations, gunshot wounds,
puncture wounds to unapproved targets

Terrill & Paoline

Approach

No injury
Minor injury *dart puncture wounds to approved targets,
bruises, scrapes, sprains.
Major injury fractures, lacerations, gunshot wounds,
puncture wounds to unapproved targets

* This represents the key difference between the Kaminski approach and the Terrill and Paoline approach.

Ultimately, Kaminski et al. concluded that when barb punctures are counted as minor
injuries, ECWs increase the odds of minor injuries, but do not impact the odds of major
injuries. 209 When barb punctures are excluded from the injury category (i.e., they are
coded as no injury), ECWs reduce the odds of both major and minor injuries, or have
benign effects. 210
The results of the three major injury severity studies, along with their severity
definitions, are presented below in Table VIII:
TABLE VIII: SUMMARY OF INJURY SEVERITY DEFINITIONS

AUTHOR

INJURY SEVERITY DEFINED

CONCLUSION

208

[#36, p. 1011.]
[#36, p. 17.]
210
[#36, p. 17.]
209

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PERF

Minor bruises, lacerations, burns,

barb punctures

ECWs reduce severity

of suspect injuries

Severe broken bones, stab wounds,

gun wounds
Terrill and
Paoline

No injury
Minor bruises/abrasions (includes
some barb punctures)

ECWs increase
severity of suspect
injuries

Moderate lacerations (includes some

barb punctures)
Severe broken bones
Kaminski
et al.

No injury barb punctures to

approved targets

ECWs reduce severity

of suspect injuries

Minor injury bruises, scrapes,

sprains

Major injury fractures, lacerations,

gunshot wounds, barb punctures to
unapproved targets

CONCLUSION

Determining how ECWs impact the rates at which citizens are injured during encounters
with police is perhaps one of the most difficult questions that we have examined. In part,
that is because of the many difficulties in collecting adequate data, which we have
described above. The real difficulty, however, stems from the fact that analyzing the
impact of ECWs on the rate or severity of suspects injuries depends on how one defines
the term injury. This, in turn, involves normative value judgments that have no clear
right or wrong answer.
In considering broader public safety issues, it may be helpful to consider some of the
underlying normative questions. For example, should the sheer pain of an ECW electrical
shock constitute an injury to the individual on the receiving end? Should puncture
wounds be counted as injuries to subjects? Does the answer depend on where the
puncture is located? Does the answer depend on whether the wounds heal quickly, or
need treatment? These and other questions may provide a useful starting point for policy
makers to answer the broader question of how ECWs impact the rates at which subjects
are injured.

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(4) HAS THERE BEEN STUDY OF OTHER WAYS TO ACHIEVE THESE

GOALS?
DE-ESCALATION TECHNIQUES, GENERALLY

Many police executives around the country recognize the need to consider how officers
can de-escalate potentially dangerous encounters, so that no force is ever required. 211
The Police Executive Research Forum recommends training officers in tactical
disengagement and practicing strategies to de-escalate volatile situations. 212 Indeed,
some research suggests that when officers are trained to use de-escalation skills, the
likelihood of success in a crisis increases, and the use of force decreases. 213 However, we
found no research that attempted to directly compare the effects of de-escalation
techniques with the effects of ECW use.
Some researchers and experts have voiced concerns that the availability of ECWs has
reduced the extent to which officers use de-escalation techniques. A group of researchers
working on an NIJ-funded study noted that [d]uring our interviews with officers and
trainers, we heard comments that hinted at a lazy cop syndrome. That is, some police
officers may turn to [an ECW] too early in an encounter and may rely on [an ECW]
rather the officers skills in conflict resolution or even necessary hands-on
applications. 214
While lauding ECWs, PERF has acknowledged that in some instances it appears that
officers are using the ECW inappropriately or too frequently. 215 PERF has also
recommended avoiding over-reliance on weapons, such as Electronic Control Weapons,
as opposed to hands-on tactics and verbal skills. 216

211

[See #1 (An Integrated Approach to De-Escalation and Minimizing Use of Force (2012), which
summarizes presentations at a 2012 PERF Summit where police chiefs and other experts described their
experiences with the need for alternative crisis resolution techniques, as well as with the potential
pitfalls of overreliance on ECWs.
http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20integrated%20approach%20to%2
0de-escalation%20and%20minimizing%20use%20of%20force%202012.pdf. Accessed March 10,
2015.)]
212
[#1, p. iii.]
213
[#37.]
214
[#21, at p. 8-9.]
215
[#15, at p. 15.]
216
[#1, p. iii.]

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CRISIS INTERVENTION TEAMS

Recognizing that mentally ill citizens are disproportionately represented among those
arrested and involved in use-of-force incidents, 217 many jurisdictionsincluding
Berkeley and others in the Bay Areahave implemented Crisis Intervention Team
(CIT) programs in their departments.
CIT was developed in Memphis, Tennessee in 1988, and is often referred to as the
Memphis Model. The full program includes three core elements: first, training for
individual officers, which prepares them to respond to people in mental health crises;
second, structural changes to dispatch and staffing policies, intended to ensure that
appropriately trained officers will respond to calls for service likely to involve mental
health issues; and third, the development of organizational ties between law enforcement
and mental health systems.
Empirical literature on the impact of CIT programs is still developing. Past research has
largely focused on changes in attitudes among officers who have undergone the training,
and those results are encouraging. 218 So far, however, little empirical evidence exists to
support a relationship between CIT training and reduced use of force, or reduced injuries
to officers or suspects.
In a 2014 meta-analysis, 219 Sema Taheri surveyed the methodologically strongest CIT
studies for findings on either of these measures. Taheris meta-analysis showed that
none of the studies resulted in significantly positive effects of CIT on use-of-force
outcomes. 220 The author reported that only two methodologically qualified studies
measured the effect of CIT on officer injury. Moreover, they both suffered from serious
limitations, highlight[ing] a significant gap in knowledge about CIT program effects on
officer preparedness. 221 Taheri concluded that, for now, there is insufficient evidence to

217

See More Than Half of Those Killed by San Francisco Police Are Mentally Ill, KQED, Sept. 30,
2014. The article notes that a 2013 report by the Treatment Advocacy Center and National Sheriffs
Association estimates half of the people shot and killed by police in the U.S. have mental health
problems, and as many as one-third of officer-involved shootings are attempted suicides-by-cop.
http://tacreports.org/storage/documents/2013-justifiable-homicides.pdf. Accessed June 10, 2015.
218
[#38, p. 532 (Evidence suggests CIT training is effective in improving officers knowledge about
mental illness and its treatment, attitudes toward persons with mental illness and interactions with them,
and officers confidence about their ability to respond appropriately to mental health crises [citing three
studies]); see also #39, p. 15 (CIT-trained officers transported the mentally ill to more communitybased services rather than arrest them compared with their non-CIT counterparts).]
219
[#39.]
220
[#39, p. 11.]
221
[#39, p. 11.]

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conclude if these models reduce officer injury during encounters between police officers
and persons with mental illness. 222
Despite the limitations of existing research, it is possible that CIT training reduces use of
force and increases officer safety. As with many other police practices, however, the
effect is difficult to measure because of the decentralized nature of policing in the United
States. As noted in Taheris meta-analysis, the practice of developing a CIT model can
make evaluation very difficult in the production of primary studies. 223 Another author
reviewing the CIT literature writes that CIT implementation varies so much across
localities that it is difficult to discuss the CIT model as a uniform intervention
process. 224

222

[#39, p. 15.]
[#39, p. 15.]
224
[#38, p. 530.]
223

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Conclusion
Electronic control weapons have been widely adopted by police departments in
California and throughout the United States. However, that seeming ubiquity does not
settle the question of whether the Berkeley Police Department should deploy them, or
under what circumstances. Instead, the developing empirical literature and the
accumulated experiences of other jurisdictions demonstrate that important questions
about ECWs are more complex than they appear.
Police officers are responsible for a difficult and often dangerous job. Those dangers and
challenges are described with some elegance in the decisions of our highest courts, which
recognize that police officers are often forced to make split-second judgmentsin
circumstances that are tense, uncertain, and rapidly evolving[.] 225 It is easy to see why
ECWswhich are designed to allow officers to quickly subdue resistant subjects with
minimal dangerhave been widely adopted with a promise that they can reduce the rate
of injuries to police officers and suspects, and perhaps even reduce the use of lethal force.
At the same time, the introduction of a new weapon as a tool in policing inevitably comes
with a set of attendant risks. Deciding whether to adopt ECWs requires balancing those
potential risks against what is known of their benefits. If these benefits prove true, then
ECWs would certainly enhance public safety. If, however, these benefits prove false or
unsubstantiated, then adopting ECWs could create a series of risks, with no (or minor)
measurable benefits.
The goal of this report was to examine whether the empirical research substantiates the
perceived benefits and costs of ECWs. In other words, once you sift through the studies,
cross-check their footnotes, and weed out weaker designs, can we identify the
measurable costs and benefits of this technology?
We approached the hundreds of studies assessing ECWs hoping to find a body of robust
empirical evidence either supporting or debunking the perceived benefits of the devices.
Unfortunately, that was not our experience.
As we have noted throughout this report, even the best empirical evidence in this field is
riddled with caveats that limit the confidence readers can place in results. The medical
literature reflects the limits on what researchers can ethically test in a controlled setting.
Structural issues make it difficult to gather reliable data about the results of ECW
adoption by police officers. In many subject areas, small sample sizes or preliminary
research designs limit generalizability. And in every area, we can say that the methods are

225

Graham v. Connor, 490 U.S. 386, 397 (1989).

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67

still developing. For each conclusion, there is an asteriskand often, an asterisk to the
asterisk.
In short, our efforts to identify the evidence-backed benefits and costs have often required
us to assess their weight. After spending so much time trying to understand how these
pieces of evidence fit together, we have a few general conclusions about what the
currently available evidence shows.
With regard to health impacts:

The weight of the evidence tends to show that ECWs have distinct impacts on
different segments of the population, and their relative safety also varies with the
circumstances of any given interaction. If there is any broad-based conclusion to
draw from the current research, it is that ECWs are usually safe for use on healthy
people who are not under the influence of drugs, alcohol, mental illness, or
pregnancy, so long as these individuals receive only a standard five-second shock
to an approved area of the body.

Some may read these findings to mean simply that ECWs are generally safe.
However, the research also suggests that many people exposed to ECWs are
likely have one or more of the risk factors addressed in the medical literature,
such as being under the influence of alcohol or illicit drugs, or suffering from
mental illness. Moreover, many of the medical studies rely on healthy male police
officers as subjects. As a result, their conclusions are of only limited applicability.
Finally, researchers are still exploring health effects even on these ideal
candidates. 226

With regard to the impact of ECWs on public safety:

(1) Do ECWs replace use of lethal force (gunfire)? There is very little evidence to
support this claim. It is certainly possible that ECWs save lives by replacing lethal
force, and many researchers recognize the importance of the question. So far,
however, no credible studies have demonstrated this claim empirically.
(2) Do they reduce [non-lethal] injuries to officers? While the research on officer
injuries is by no means unequivocal, there is strong support for the assertion that

226

See, for example, the January 2014 study by White et al. examining, for the first time, the effects of the
TASER on cognitive functioning. [#16.] White et al. concluded that participant police officers
experienced statistically significant reductions in several measures of cognitive functioning following
TASER exposure. [#16, p. 12.]

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68

ECWs reduce injuries to officers to some degree. However, the studies do vary as
to the magnitude of the effect, and none have comprehensively addressed the
severity of prevented injuries.
(3) Do they reduce [non-lethal] injuries to suspects? The answer is that it depends.
At first glance, the literature appears to clearly establish a relationship between
ECWs and reduced injuries to suspects. However, this dominant narrative masks a
more complicated body of research that casts doubt on the conclusion. The
answer appears to turn on the question of whether or not to count puncture
wounds from ECW barbs as an injury in a statistical model, and, if the answer is
yes, how to count them.
(4) Are there alternative practices or tools that would accomplish these goals,
other than deploying electronic control weapons (such a focus on deescalation)? Many departments have begun to turn their efforts to de-escalation
and implementing Crisis Intervention Teams (CIT). Empirical literature on the
impact of CIT programs is still developing. Despite the limitations of existing
research, it is possible that CIT training reduces use of force and increases officer
safety. As with many other police practices, however, the effect is difficult to
measure because of the decentralized nature of policing in the United States.
Assessing how to weigh the ultimately unsatisfying answers to each question requires
consideration of the normative issues we have referred to throughout this reportthe
judgments about how to balance important values like the safety of police officers with
that of citizens. Balancing those values with regard to ECWs is especially challenging,
not only because the data is incomplete, but also because the unusual features of this
weapon that allow a user to inflict tremendous pain without leaving any apparent sign of
lasting injury.
It is true that ECW adoption is not the only important public policy debate that suffers
from a lack of quality information. Understanding the health effects of any substance or
physical interventionfrom ECWs, to trans fatswill be limited by the ethical
boundaries that govern research into human subjects. Measuring the impact of any
proposed public policy often requires drawing conclusions from datasets that suffer from
some degree of limitation.
There is something particularly unsettling, however, about the lack of clarity surrounding
questions that determine when and how the members of a community authorize the use of
force against their neighbors. We believe that use-of-force policy decisions are too
important to be left to conjecture, hunches, or passive adoption of conventional wisdom.
After assessing all of this evidence, our own conclusion is that the costs, or potential
harms, of using ECWs are not yet fully understood. We believe this calls for caution, and
that ECWs should be adopted in very limited circumstances, if at all.
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69

Where ECWs are deployed, we share the concerns voiced by many of the nations
leading police executives, whose experiences with ECW adoption have convinced them
that these tools are not a panacea. 227 First, we believe that policy makers should consider
coupling the adoption of ECWs with full-throttled efforts at de-escalation training.
Second, policy makers should give careful consideration to best practices that reflect the
experiences of jurisdictions with longer exposure to the benefits and pitfalls of ECWs.
Finallyas is true with the introduction of any new technologypolicy makers must lay
the groundwork for effective and continual ECW training. Our review of the research
indicates that many of the risks associated with ECWs stem from ECW misuse. Many
studies surveying the impact of ECWs include the caveat, when used properly . . . . If
policy makers couple ECW adoption with efforts at continual professional development,
they can mitigate some of the heightened risks associated with ECW misuse.
We acknowledge that reasonable people might disagree with our assessment. Our
conclusion depends in large part on answers to normative questionsthe judgment
calls that may not have definitive answers because they implicate important values that
are often tension with each other. We have approached our research with our own
normative perspective, but we acknowledge that others might resolve those tensions
differently. We hope that the research presented in this report will be helpful to the
residents of Berkeley as they answer these questions for themselves.

227

[See #1 (An Integrated Approach to De-Escalation and Minimizing Use of Force (2012), which
summarizes presentations at a 2012 PERF Summit where police chiefs and other experts described their
experiences with the need for alternative crisis resolution techniques, as well as with the potential
pitfalls of overreliance on ECW.
http://www.policeforum.org/assets/docs/Critical_Issues_Series/an%20integrated%20approach%20to%2
0de-escalation%20and%20minimizing%20use%20of%20force%202012.pdf. Accessed March 10,
2015.).]

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Appendices
APPENDIX A: BASIC FEATURES OF CURRENT TASER MODELS

The newest generation Taser models are the X2 and the X26P. 228
The Taser X2 builds on a shortcoming of a previous X26 model; namely, the X26 model
can only fire one cartridge without the officer reloading. This can present a distinct
disadvantage when one probe misses (since two are required to complete the electrical
circuit), the probe spread is too close to be effective, or there are multiple subjects
requiring engagement. 229 According to Taser International, the X2 model has a
powerful 2-shot option for increased effectiveness. 230 The X2 can fire two cartridges in
a semi-automatic manner. 231 Additionally, the X2 model has completely different
waveform and output specifications that have significantly changed the electrical
characteristics of this weapon when compared with previous [ECWs]. 232, 233
The second new generation model is the X26P. The X26P model retains the core
features of the X26 model, but includes additional enhancements and safety features. 234
The X26P is a single-shot model using the same cartridge as the X26 model. 235 However,
the X26P features improved ergonomics, weatherproofing, and an upgraded battery that
lasts twice as long as the X26 battery. 236 Additionally, the X26P model incorporates
many of Taser Internationals Smart Technology features.
Taser International markets Smart Technology features associated with both the X26P
and X2 models. First, the company offers Trilogy Logs, which monitor and record every

228

The X26P model builds on the X26 model, first introduced in 2003. [#3, p. 14]
[#78, p. 55.]
230
Smart Weapons Are Safer Than Ever, Taser International, https://www.taser.com/products/smartweapons.
231
[#8, p. 429.]
232
[#8, p. 429.]
233
It is worth noting that most of the existing medical research, addressed in the Health Effects section
(Part I, p. 11), was conducted using the X26 or the (now discontinued) M26 Taser model. The X2 model
departs from the electrical characteristics of these prior models, and there is limited medical research
assessing the health impacts of the X2 model.
234
New TASER X26P Smart Weapon Announced, Taser International, January 15, 2013,
http://investor.taser.com/releasedetail.cfm?ReleaseID=733541.
235
Id.
236
Id.
229

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user interaction with the Taser. 237 Additionally, the company offers a digital management
software called Evidence Lite, which stores and manages device data. 238

237

This includes safety activations, trigger duration with times, dates, battery life, and a pulse-by-pulse
record of the charge output. Smart Weapons Are Safer Than Ever, Taser International,
https://www.taser.com/products/smart-weapons.
238
Smart Weapons Are Safer Than Ever, Taser International, https://www.taser.com/products/smartweapons.

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73

(1) PHYSICAL FX, (2)

PAIN, (3) RISK OF
INJURY

2014
Hesterberg
v.
U.S.

GraveletBlondin
v.
Shelton

2013

Mattos
v.
Agarano

2011

Brooks
v. Seattle

2011

Not severe. (No

seatbelt; officer claimed
3 misdemeanors: failure
to comply, resisting, &
being under influence)

WAS THE CRIME

SEVERE?

Dart mode, 5 seconds =

Intermediate force (see
Bryan, above)

Dart mode = Intermediate

force (see Bryan, above)

Dart mode = Intermediate

force (see Bryan, above)

If any crime, not severe.

(Man failed to instantly
comply with order to get
back from scene of an
arrest, when he was
already standing 37 feet
away.

No Crime (woman didnt

move aside for police
officer who had entered
home to arrest her
husband)

Drive-stun = ? (court declined Not severe (Speeding &

to specifically find what level refusal to sign traffic
of force it was, but
ticket)
distinguished from dart mode)

Dart mode = Intermediate

Force (paralysis, excruciating
pain; here, high risk of injury:
Bryan
shirtless man in street, who
v.
MacPherson fell, broke teeth)

2010

CASES

Passive, if any (man hit self

in arms; shouted gibberish;
complied with orders except
one he says he didnt hear:
stay in car.)

ACTIVELY EVADING /
RESISTING ARREST?

Not threatening. (Fact

that man asked officers
what are you doing to
Jack? doesnt make him
threatening)

No Threat (unarmed
woman did not threaten
police; only contact w/
officer was defensively
raising hands to prevent
his pressing his body
against hers)

Woman told officers

she was 7 months
pregnant;
Police tased her 3 times
in 1 minute

Police failed to warn

before ECW use;
Less intrusive measures
clearly available

OTHER FACTORS?

No Resistance. (Man stood

still for 15 seconds upon
receiving order to get back
and contradictory order to
stop; officer then ran at
man, yelling get back,
fired ECW.

65

No Resistance (at most,

Police were responding
she failed to comply with an to 911 call about a
officers request immediately; domestic dispute; upon
was not herself under arrest) arrival, they met
plaintiffs large, hostile,
intoxicated husband.

No Threat. (Pregnant
Passive (refusal to leave car,
woman at wheel of car, clutching steering wheel, but
keys on floor; no threats; didnt flee or strike officers)
not armed)

Low Threat. (behavior

erratic, not threatening;
unarmed; wearing only
boxer shorts; no threats;
20 ft from officer;

DID SUSPECT POSE

A THREAT?

NATURE & QUALITY OF GOVERNMENTAL INTEREST (Factors that would determine if force was justifiedin these cases,
INTRUSION (Force Level) the government interest was not high enough to justify force. )

APPENDIX B: NINTH CIRCUIT CASES ADDRESSING POLICE USE OF ECW S

SELECTED BIBLIOGRAPHY

[1] PERF, An Integrated Approach to De-Escalation and Minimizing Use of Force. Critical
Issues in Policing Series. (August 2012).
[2] Philip Bulman, Police Use of Force: The Impact of Less-Lethal Weapons and Tactics.
National Institute of Justice Journal, 267. (Winter 2010).
[3] Bruce Taylor, Daniel Woods, et al., Comparing Safety Outcomes in Police Use-of-Force Cases
for Law Enforcement Agencies That Have Deployed Conducted Energy Devices and A Matched
Comparison Group That Have Not: A Quasi-Experimental Evaluation. Report Submitted to the
National Institute of Justice. (September 2009).
[4] Mathieu Pasquier, Pierre-Nicolas Carron, et al., Electronic Control Device Exposure: A
Review of Morbidity and Mortality. Annals of Emergency Medicine, Vol. 58, No. 2. (May 2011).
[5] Gary M. Vilke, Christian M. Sloane, et al., Physiologic Effects of the Taser After Exercise.
Academic Emergency Medicine, Vol. 16, No. 8. (August 2009).
[6] Kumaraswamy Nanthakumar, Stephane Masse, et al., Cardiac Stimulation With High Voltage
Discharge From Stun Guns. Canadian Medical Association Journal, Vol. 178, No. 11. (May
2008).
[7] Geoffrey P. Alpert, Michael R. Smith, et al., Police Use of Force, Tasers and Other Less-Lethal
Weapons. NIJ Research in Brief. (May 2011).
[8] Jeffrey D. Ho, Donald M. Dawes, et al., Physiological Effects of a New-Generation Conducted
Electrical Weapon on Human Volunteers. Journal of Emergency Medicine. (March 2014).
[9] Michael White and Justin Ready, The Taser as a Less Lethal Force Alternative: Findings on
Use and Effectiveness in a Large Metropolitan Police Agency. Police Quarterly, Vol. 10, No. 2.
(June 2007).
[10] Michael White and Justin Ready, The Impact of the TASER on Suspect Resistance:
Identifying Predictors of Effectiveness. Crime Delinquency, Vol. 56, No. 1. (2010).
[11] Charlie Mesloh, Mark Henych, et al., Less Lethal Weapon Effectiveness, Use of Force, and
Suspect & Officer Injuries: A Five-Year Analysis. A Report to the National Institute of Justice
(September 2008).
[12] Amnesty International, Less Than Lethal? The Use of Stun Weapons in US Law
Enforcement. (2008).
[13] Study of Deaths Following Electro Muscular Disruption. National Institute of Justice Special
Report. (May 2011).
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[14] Ronald Moscati, Jeffrey D. Ho, et al., Physiologic Effects of Prolonged Conducted Electrical
Weapon Discharge in Ethanol-Intoxicated Adults. The American Journal of Emergency Medicine,
Vol. 28, No. 5. (2010).
[15] PERF, 2011 Electronic Control Weapons Guidelines. (March 2011).
[16] Michael D. White, Justin Ready, et al., Examining the Effects of the TASER on Cognitive
Functioning. Journal of Experimental Criminology, Vol. 10, No. 3. (September 2014).
[17] William B. Bozeman, William H. Houda, et al., Safety and Injury Profile of Conducted
Electrical Weapons Used by Law Enforcement Officers Against Criminal Suspects. Annals of
Emergency Medicine, No. 53, Vol. 4. (2009).
[18] William Terrill and Eugene Paoline, Examining Less Lethal Force Policy and the Force
Continuum Results From a National Use-Of-Force Study. Police Quarterly, Vol. 16, No. 1. (July
2012).
[19] Geoffrey P. Alpert, Roger G. Dunham, et al., Policy and Training Recommendations Related
to Police Use of CEDs: Overview of Findings From a Comprehensive National Study. Police
Quarterly, Vol. 13, No. 3. (September 2010).
[20] Frank V. Ferdik, Robert J. Kaminski, et al., The Influence of Agency Policies on Conducted
Energy Device Use and Police Use of Lethal Force. Police Quarterly, Vol. 17, No. 4. (December
2014).
[21] Michael R. Smith, Robert J. Kaminski, et al., A Multi-Method Evaluation of Police Use of
Force Outcomes. Report to the National Institute of Justice. (July 2010).
[22] Charlie Mesloh, Mark Henych, et al., TASER and Less Lethal Weapons: An Exploratory
Analysis of Deployments and Effectiveness. Law Enforcement Executive Forum, Vol. 5. (2005).
[23] Mark Henych, Charlie Mesloh, et al., Use of Force, Civil Litigation, and the Taser: One
Agencys Experience. FBI Law Enforcement Bulletin, No. 74. (March 2005).
[24] A. Eastman, J Metzger, et al., Conducive Energy Devices: A Prospective, Population-Based
Study of the Medical Safety of Law Enforcement Use. Journal of Trauma, Injury, Infection, and
Critical Care, No. 64, Vol. 6. (June 2008).
[25] William Sousa, Justin Ready, et al., The Impact of TASERs on Police Use-Of-Force
Decisions: Findings From a Randomized Field-Training Experiment. Journal of Experimental
Criminology, Vol. 6, No. 35. (2010).
[26] Jeffrey Ho, Donald Dawes, et al., The Impact of Conducted Electrical Weapons in a Mentally
Ill Population: A Brief Report. American Journal of Emergency Medicine, Vol. 25, No. 7.
(September 2007).

67

75

[27] Kyle J. Thomas, Peter A. Collins, et al., Conducted Energy Device Use in Municipal Policing:
Results of a National Survey on Policy and Effectiveness Assessments. Police Quarterly, Vol. 13,
No. 3. (September 2010).
[28] Byron K. Lee, Eric Vittinghoff, et al., Relation of Taser (Electrical Stun Gun) Deployment to
Increase in In-Custody Sudden Deaths. American Journal of Cardiology, Vol. 103, No. 6. (March
2009).
[29] A Force to be Reckoned With: Taser Policies of 20 Arizona Law Enforcement Agencies.
ACLU Special Report. (June 2011).
[30] Yu-Sheng Lin and Tonisha R. Jones, Electronic Control Devices and Use of Force Outcomes:
Incidence and Severity of Use Of Force and Frequency of Injuries to Arrestees and Police Officers.
Policing: An International Journal of Police Strategies and Management, Vol. 33, No. 1. (2010).
[31] John M. MacDonald, Robert J. Kaminski, et al., The Effect of Less-Lethal Weapons on
Injuries in Police Use-Of-Force Events. American Journal of Public Health, Vol. 99, No. 12.
(December 2009).
[32] Eugene A. Paoline, William Terrill, et al., Police Use of Force and Officer Injuries:
Comparing Conducted Energy Devices (CEDs) to Hands- and Weapon-Based Tactics. Police
Quarterly, Vol. 15, No. 2. (June 2012).
[33] William Terrill, Eugene Paoline, et al., Final Technical Report Draft: Assessing Police Use of
Force Policy and Outcomes. Report to the National Institute of Justice. (February 2012).
[34] Michael R. Smith, Robert J. Kaminski, et al., The Impact of Conducted Energy Devices and
Other Types of Force and Resistance on Officer and Suspect Injuries. Policing: An International
Journal of Police Strategies and Management, Vol. 30, No. 3. (2007).
[35] William Terrill and Eugene Paoline, Conducted Energy Devices and Citizen Injuries: The
Shocking Empirical Reality. Justice Quarterly, Vol. 29, No. 2. (2012).
[36] Robert J. Kaminski, Robin S. Engel, et al., A Quantum of Force: The Consequences of
Measuring Routine Conducted Energy Device Punctures as Injuries. Justice Quarterly, Vol. 32,
No. 4. (2013).
[37] Janet R. Oliva, Rhiannon Morgan, et al., A Practical Overview of De-Escalation Skills in Law
Enforcement: Helping Individuals in Crisis While Reducing Police Liability and Injury. Journal of
Police Crisis Negotiations, Vol. 10, No. 12. (June 2010).
[38] Amanda Brown Cross, Edward P. Mulvey, et al., An Agenda for Advancing Research on
Crisis Intervention Teams for Mental Health Emergencies. Psychiatric Services, Vol. 65, No. 4.
(April 2014).

68

76

[39] Sema Taheri, Do Crisis Intervention Teams Reduce Arrests and Improve Officer Safety? A
Systematic Review and Meta-Analysis. Criminal Justice Policy Review. (November 2014).

69

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78

AGENDA

BERKELEY CITY COUNCIL MEETING

TUESDAY, OCTOBER 6, 2015
7:00 P.M.
COUNCIL CHAMBERS - 2134 MARTIN LUTHER KING JR. WAY
TOM BATES, MAYOR
Councilmembers:
DISTRICT 1 LINDA MAIO
DISTRICT 2 DARRYL MOORE
DISTRICT 3 MAX ANDERSON
DISTRICT 4 JESSE ARREGUIN

DISTRICT 5 LAURIE CAPITELLI

DISTRICT 6 SUSAN W ENGRAF
DISTRICT 7 KRISS W ORTHINGTON
DISTRICT 8 LORI DROSTE

This meeting will be conducted in accordance with the Brown Act, Government Code Section 54953.
Any member of the public may attend this meeting. Questions regarding this matter may be addressed to
Mark Numainville, City Clerk, 981-6900.
The City Council may take action related to any subject listed on the Agenda. The Mayor may exercise a
two minute speaking limitation to comments from Councilmembers. Meetings will adjourn at 11:00 p.m. any items outstanding at that time will be carried over to a date/time to be specified.

Preliminary Matters
Roll Call:
Ceremonial Matters: In addition to those items listed on the agenda, the Mayor may add additional
ceremonial matters.

City Manager Comments: The City Manager may make announcements or provide information to
the City Council in the form of an oral report. The Council will not take action on such items but may
request the City Manager place a report on a future agenda for discussion.
Public Comment on Non-Agenda Matters: Persons will be selected by lottery to address

matters not on the Council agenda. If five or fewer persons submit speaker cards for the lottery, each
person selected will be allotted two minutes each. If more than five persons submit speaker cards for the
lottery, up to ten persons will be selected to address matters not on the Council agenda and each person
selected will be allotted one minute each. Persons wishing to address the Council on matters not on the
Council agenda during the initial ten-minute period for such comment, must submit a speaker card to the
City Clerk in person at the meeting location and prior to commencement of that meeting. The remainder
of the speakers wishing to address the Council on non-agenda items will be heard at the end of the
agenda. Speaker cards are not required for this second round of public comment on non-agenda matters.

79

Public Comment on Consent Calendar and Information Items Only: The Council will
take public comment on any items that are either on the amended Consent Calendar or the Information
Calendar. Up to three speakers will be entitled to two minutes each to speak in opposition to or support
of a Consent Calendar Item. The Presiding Officer will ask additional persons in the audience to stand to
demonstrate their respective opposition to or support of the item.
In the event that there are more than three persons wishing to speak either in opposition to or support of
a Consent item, the Presiding Officer will move the item to the beginning of the Action Calendar. Prior
to moving the item, the Presiding Officer will fully inform those persons in the audience of this process.
Additional information regarding public comment by City of Berkeley employees and interns: Employees
and interns of the City of Berkeley, although not required, are encouraged to identify themselves as such,
the department in which they work and state whether they are speaking as an individual or in their official
capacity when addressing the Council in open session or workshops.

Consent Calendar
The Council will first determine whether to move items on the agenda for action or Information to the
Consent Calendar, or move Consent Calendar items to action. Items that remain on the Consent
Calendar are voted on in one motion as a group. Information items are not discussed or acted upon at
the Council meeting unless they are moved to Action or Consent.
After hearing from public speakers regarding items remaining on the Consent Calendar, any Council
Member may move any Information or Consent item to Action, however no additional items can be
moved onto the Consent Calendar at that point. Following this, the Council will vote on the items
remaining on the Consent Calendar in one motion.
For items removed from the Consent Calendar to the Action Calendar for additional public comment, at
the time the matter is taken up during the Action Calendar, public comment will be limited to persons who
have not previously addressed that item during the Consent Calendar related public comment period.

1.

Reallocation of the Community Service Animal Rescue Grant to a Low Cost or

No Cost Spay/Neuter Grant for the Residents of Berkeley
From: City Manager
Recommendation: Approve funding for additional low cost or no cost spay/neuter
services for the pets of the residents of Berkeley by reallocating $23,812 from the
Community Services Animal Rescue Grant.
Financial Implications: See report
Contact: Gil Dong, City Managers Office, 981-7000

2.

Formal Bid Solicitation and Request for Proposal Scheduled For Possible
Issuance After Approval on October 6, 2015
From: City Manager
Recommendation: Approve the request for proposals or invitation for bids (attached
to staff report) that will be, or are planned to be, issued upon final approval by the
requesting department or division. All contracts over the City Manager's threshold
will be returned to Council for final approval.
Financial Implications: Sanitary Sewer Operation Fund -$160,000
Contact: Henry Oyekanmi, Finance, 981-7300

Tuesday, October 6, 2015

AGENDA

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Consent Calendar
3.

Salary: Parking Enforcement Manager Classification

From: City Manager
Recommendation: Adopt a Resolution amending Resolution No. 66,685-N.S.,
Classification and Salary Resolution for Public Employees Union Local One, to
increase the salary range of the Parking Enforcement Manager classification to
$6,683 to $8,150 per month, effective October 6, 2015.
Financial Implications: See report
Contact: David Abel, Human Resources, 981-6800

4.

Contract No. 9169B Amendment: Townsend Management Inc. for Additional

Construction Management and Construction Support Services for Parks
Capital Improvement Projects
From: City Manager
Recommendation: Adopt a Resolution authorizing the City Manager to execute an
amendment to Contract No. 9169B with Townsend Management, Inc. (TMI) to
provide additional construction management and construction support services for
parks capital improvement projects, in an amount not to exceed $110,000 for a total
contract amount not to exceed $301,096, and extending the term through December
31, 2016.
Financial Implications: Various Funds - $110,000
Contact: Scott Ferris, Parks, Recreation and Waterfront, 981-6700

5.

Contract Amendments: On-Call Landscape Architecture and Project

Development Services Dillingham Associates and McArdle Design Inc.
From: City Manager
Recommendation: Adopt two Resolutions authorizing the City Manager to execute
amendments to the following two contracts for on-call landscape architecture
services, extending the initial terms ending November 1, 2016 to June 30, 2017:
1. Dillingham Associates, Contract No. 9537A, increasing the amount by $83,000
for a new contract amount not to exceed $275,000;
2. McArdle Design Inc. (formerly known as Hansen McArdle Inc.), Contract No.
9529, increasing the amount by $100,000 for a new contract amount not to exceed
$200,000.
Financial Implications: See report
Contact: Scott Ferris, Parks, Recreation and Waterfront, 981-6700

6.

Berkeley Tuolumne Camp Update and Authorization to File a Special Use

Permit Application with the United States Forest Service
From: City Manager
Recommendation: Adopt a Resolution: 1. Authorizing the City Manager to file a
Special Use Permit (SUP) application with the United Stated Forest Service (USFS)
to allow the City of Berkeley's Tuolumne Camp (BTC) to operate in its current
location for 30 years; and 2. Authorizing the City Manager to execute a contract with
the USFS in an amount not to exceed $60,000 to provide National Environmental
Policy Act (NEPA) consultation and review for the Master Development Plan
process.
Financial Implications: Playground Camp Fund - $60,000
Contact: Scott Ferris, Parks, Recreation and Waterfront, 981-6700

Tuesday, October 6, 2015

AGENDA

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Consent Calendar
7.

Audit Report: Most Contracts Executed Timely but Contract Project Managers
Could Use Better Tools and Guidance
From: Auditor
Recommendation: Request the City Manager report back by April 26, 2016, and
every six months thereafter, regarding the status of recommendations until reported
fully implemented.
Financial Implications: See report
Contact: Ann-Marie Hogan, Auditor, 981-6750

Council Consent Items

8.

City Sponsorship of the Fourth Annual Sunday Streets

From: Councilmember Capitelli
Recommendation: Adopt a Resolution: 1. Co-sponsor the 2015 Sunday Streets
event to be held on Sunday, October 18, 2015; 2. Give permission for use of the
name of the City of Berkeley and the Citys logo in media coverage of Sunday
Streets 2014; and 3. Acknowledge that the $30,000 FY 2016 allocation for Sunday
Streets approved in June 2015 be utilized by the organizers of the event, the
Downtown Berkeley Association and the North Shattuck Association, in association
with founding partner Livable Berkeley and program management partner Walk
Oakland Bike Oakland (WOBO).
Financial Implications: See report
Contact: Laurie Capitelli, Councilmember, District 5, 981-7150

Action Calendar
The public may comment on each item listed on the agenda for action as the item is taken up. Where an
item was moved from the Consent Calendar to Action no speaker who has already spoken on that item
would be entitled to speak to that item again.
The Presiding Officer will request that persons wishing to speak line up at the podium to determine the
number of persons interested in speaking at that time. Up to ten (10) speakers may speak for two
minutes. If there are more than ten persons interested in speaking, the Presiding Officer may limit the
public comment for all speakers to one minute per speaker. Speakers are permitted to yield their time to
one other speaker, however no one speaker shall have more than four minutes. The Presiding Officer
may, with the consent of persons representing both sides of an issue, allocate a block of time to each
side to present their issue.
Action items may be reordered at the discretion of the Chair with the consent of Council.

Action Calendar Old Business

9.

Retail Incentives in Commercial Districts (Continued from September 15, 2015)

From: City Manager
Contact: Michael Caplan, Economic Development, 981-7530

Tuesday, October 6, 2015

AGENDA

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Action Calendar New Business

10.

Amending Berkeley Municipal Code Chapter 9.96 Regarding Point of Sale Cell
Phone Warnings in Response to District Court Order
From: City Manager
Recommendation: Adopt first reading of an Ordinance amending Section
9.96.030.A consistent with the order issued by the U.S. District Court in CTIA v. City
of Berkeley (USDC ND CA C-15-2529 EMC).
Financial Implications: None
Contact: Zach Cowan, City Attorney, 981-6950

11.

a. Permit Fees Waivers for City-Owned Building Projects Applying for

Community Development Block Grant Funding
From: Housing Advisory Commission
Recommendation: Direct the City Manager to allow automatic permit fees waivers
for City-owned building projects receiving Community Development Block Grant
(CDBG) Funding.
Financial Implications: See report
Contact: Amy Davidson, Commission Secretary, 981-5400
b. Waive Permit Fees for CDBG Projects at City-Owned Properties
From: City Manager
Recommendation: Take no action regarding the Housing Advisory Commission's
recommendation to waive permit fees for Community Development Block Grant
(CDBG)-funded projects at City-owned properties.
Financial Implications: See report
Contact: Kelly Wallace, Health, Housing and Community Services, 981-5400

Council Action Items

12.

Referral to the City Manager: Prioritize Climate Action Plans Policy to

Redesign/Rebuild the Berkeley Transfer Station and Material Recovery Facility
into a State of the Art Zero Waste Facility
From: Councilmember Worthington
Recommendation: Referral to the City Manager: Prioritize the City of Berkeley's
Climate Action Plan's policy to redesign/rebuild the Berkeley Transfer Station and
the material recovery facility into a state of the art Zero Waste facility.
Financial Implications: Minimal
Contact: Kriss Worthington, Councilmember, District 7, 981-7170

Tuesday, October 6, 2015

AGENDA

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Council Action Items

13.

Green Affordable Housing Package

From: Councilmember Droste
Recommendation: Refer that the Planning Commission and City Manager
investigate the following two policies as ways to reduce barriers for the creation of
affordable housing. City Council requests that commissions and staff address and
propose solutions and/or an implementation plan using the recommendations in the
report by September 1, 2016. Policy 1: Designate units and funding for affordable
housing by prioritizing housing over parking spaces in new developments. Policy 2:
Remove the structural and procedural barriers to creating more housing.
Financial Implications: See report
Contact: Lori Droste, Councilmember, District 8, 981-7180

Public Comment Items Not Listed on the Agenda

Adjournment
NOTICE CONCERNING YOUR LEGAL RIGHTS: If you object to a decision by the City Council to
approve or deny a use permit or variance for a project the following requirements and restrictions apply:
1) No lawsuit challenging a City decision to deny (Code Civ. Proc. 1094.6(b)) or approve (Gov. Code
65009(c)(5)) a use permit or variance may be filed more than 90 days after the date the Notice of
Decision of the action of the City Council is mailed. Any lawsuit not filed within that 90-day period will be
barred. 2) In any lawsuit that may be filed against a City Council decision to approve or deny a use
permit or variance, the issues and evidence will be limited to those raised by you or someone else, orally
or in writing, at a public hearing or prior to the close of the last public hearing on the project.
Live captioned broadcasts of Council Meetings are available on Cable B-TV (Channel 33),
via internet accessible video stream at http://www.cityofberkeley.info/video and KPFB Radio 89.3.
Archived indexed video streams are available at http://www.cityofberkeley.info/citycouncil.
Channel 33 rebroadcasts the following Wednesday at 9:00 a.m. and Sunday at 9:00 a.m.
Communications to the City Council are public record and will become part of the Citys electronic
records, which are accessible through the Citys website. Please note: e-mail addresses, names,
addresses, and other contact information are not required, but if included in any communication
to the City Council, will become part of the public record. If you do not want your e-mail address or
any other contact information to be made public, you may deliver communications via U.S. Postal Service
or in person to the City Clerk Department at 2180 Milvia Street. If you do not want your contact
information included in the public record, please do not include that information in your communication.
Please contact the City Clerk Department for further information.
Any writings or documents provided to a majority of the City Council regarding any item on this agenda
will be made available for public inspection at the public counter at the City Clerk Department located on
the first floor of City Hall located at 2180 Milvia Street as well as posted on the City's website at
http://www.cityofberkeley.info.

Tuesday, October 6, 2015

AGENDA

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Agendas and agenda reports may be accessed via the Internet at

http://www.cityofberkeley.info/citycouncil
and may be read at reference desks at the following locations:
City Clerk Department
2180 Milvia Street
Tel: 510-981-6900
TDD: 510-981-6903
Fax: 510-981-6901
Email: clerk@cityofberkeley.info

Libraries:
Main - 2090 Kittredge Street
Claremont Branch 2940 Benvenue
West Branch 1125 University
North Branch 1170 The Alameda
South Branch 1901 Russell

COMMUNICATION ACCESS INFORMATION:

This meeting is being held in a wheelchair accessible location.
To request a disability-related accommodation(s) to participate in the meeting, including auxiliary aids or
services, please contact the Disability Services specialist at 981-6346(V) or 981-7075 (TDD) at least three
business days before the meeting date.
Attendees at public meetings are reminded that other attendees may be sensitive to various scents,
whether natural or manufactured, in products and materials. Please help the City respect these needs.

Captioning services are provided at the meeting, on B-TV, and on the Internet. In addition, assisted
listening devices for the hearing impaired are available from the City Clerk prior to the meeting, and are to
be returned before the end of the meeting.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
I hereby certify that the agenda for this meeting of the Berkeley City Council was posted at the
display case located near the walkway in front of Council Chambers, 2134 Martin Luther King Jr.
Way, as well as on the Citys website, on September 24, 2015.

Mark Numainville, City Clerk

Communications
Council rules limit action on Communications to referral to the City Manager and/or Boards and
Commissions for investigation and/or recommendations. All communications submitted to Council are
public record.

Minimum Wage
1. Greg Poulios
2. Nina Cooper
Adeline Corridor Plan
3. Rebecca Milliken on behalf of the Berkeley Climate Action Coalition
Harold Way
4. Michael Fullerton
Divestment from Israel
5. Ilana Kaufman and Jim Brandt on behalf of the Jewish Community Relations Council
6. Michael Harris
7. Faith Meltzer
Tuesday, October 6, 2015

AGENDA

Page 7

85

8. bilanalieb@
9. Marvin Lewis
10. Marc Greendorfer
Concerns Regarding Downtown
11. Christopher Nicholas
12. Mary Ciddio
Supplemental Communications and Reports

Items received by the deadlines for submission will be compiled and distributed as follows. If no items
are received by the deadline, no supplemental packet will be compiled for said deadline.

Supplemental Communications and Reports 1

Available by 5:00 p.m. five days prior to the meeting.

Supplemental Communications and Reports 2

Available by 5:00 p.m. the day of the meeting.

Supplemental Communications and Reports 3

Available by 5:00 p.m. two days following the meeting.

Tuesday, October 6, 2015

AGENDA

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01

Office of the City Manager

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Kate OConnor, Manager, Animal Services

Subject:

Reallocation of the Community Service Animal Rescue Grant to a Low

Cost or No Cost Spay/Neuter Grant for the Residents of Berkeley

RECOMMENDATION
Approve funding for additional low cost or no cost spay/neuter services for the pets of
the residents of Berkeley by reallocating $23,812 from the Community Services Animal
Rescue Grant.
CURRENT SITUATION AND ITS EFFECTS
Each year since Fiscal Year 2003, the City has allocated an annual grant to the Animal
Rescue Community to rescue animals from Berkeley Animal Care Services (BACS).
Until FY 2014, the grant was awarded to a non- profit Rescue Organization that was
chosen as result of a RFP. The grant required the rescue organization to rescue
between 200- 250 animals from the shelter each year.
As of 2013, no single group has been able to fulfill the conditions of the grant, therefore
in FY 2014 the grant was changed to offer any qualifying non-profit animal rescue group
$100 per hard to place animal that they rescued with a maximum of $5000 per nonprofit. The hard to place animals within municipal shelters are Pit bulls and Chihuahuas,
cats and dogs that are under the age of 8 weeks or over 7 years old, and dogs or cats
requiring extensive or long-term medical care. BACS has a 90% live release rate for the
animals within its care and it is clear that most rescue groups are not able to assist with
remaining hard to place animals as only three claimed money from the grant totaling
less than $8000.
A Request for Proposal (RFP) will be posted looking for proposals from non-profit
groups that work in animal related fields to provide a low cost or no cost spay/neuter
program to the residents of Berkeley.
FISCAL IMPACT
None. The current yearly Animal Rescue Grant of $23,812 will be reallocated to provide
additional low cost or no cost spay neuter services for pets of residents of Berkeley.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

87

Reallocation of the Community Service Animal Rescue Grant to a

Low Cost or No Cost Spay/Neuter Grant for the Residents of Berkeley

CONSENT CALENDAR
October 6, 2015

BACKGROUND
When the rescue grant began in 2003, there were two good options for the residents of
Berkeley to get free or low cost spay/neuters for their animals. The Berkeley Humane
Society ran a low cost animal hospital for the public and a non-profit group called Spay
Neuter our Pets(SNYP) raised money to add to the Citys allocation of $30,000 for low
cost or no cost spay/neuter for the pets of Berkeley residents. Within a few years the
SNYP non-profit organization dissolved and the SNYP program came fully under the
management of BACS. Some years ago the Berkeley Humane Society closed its public
hospital and no longer offered low cost services to the public. BACS now offers a
maximum of $10,000/year in spay/neuter vouchers to low-income residents of Berkeley.
Staff has determined that the annual Animal Rescue grant of $23,812 would be more
effective if used for additional low cost or no cost spay/neuter services for the residents
of Berkeley. The goal will be to lower the number of animals entering the shelter system
by reducing the number of unwanted animals being born each year. This, in turn, will
reduce the cost of caring for the animals in our shelter and take the pressure off the
non-profit groups to rescue animals from BACS.
It is clear that providing additional low cost or no cost spay/neuter services to the
residents of Berkeley and therefore reducing the problem of pet overpopulation in our
community is vastly more effective that scrambling to find rescues and adoptive homes
for every animal that enters the shelter.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the
subject of this report.
POSSIBLE FUTURE ACTION
If, in the future, it is determined there is a more effective animal rescue use for this
grant, the funding can be redirected once the term of the SNYP contract has expired.
FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
None
CONTACT PERSON
Kate OConnor, Manager, Animal Care Services, (510) 981 6601
Amelia Funghi, BACS, (510) 981-6000

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02

Office of the City Manager

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Henry Oyekanmi, Acting Finance Director, Finance Department

Subject:

Formal Bid Solicitation and Request for Proposal Scheduled for Possible
Issuance After Council Approval on October 6, 2015

RECOMMENDATION
Approve the request for proposals or invitation for bids (attached to staff report) that will
be, or are planned to be, issued upon final approval by the requesting department or
division. All contracts over the City Managers threshold will be returned to Council for
final approval.
FISCAL IMPACTS OF RECOMMENDATION
Total estimated cost of items included in this report is $160,000.
PROJECT

Fund

Source

Amount

New Sewer CCTV Camera

Van

830

Sanitary Sewer Operation

(Funds will be appropriated as
part of the First Amendment to
the FY 2016 Annual
Appropriations Ordinance.)

$160,000

Total:

$160,000

CURRENT SITUATION AND ITS EFFECTS

On May, 6, 2008, Council adopted Ordinance No 7,035-N.S. effective June 6, 2008,
which increased the City Managers purchasing authority for services to $50,000. As a
result, this required report submitted by the City Manager to Council is now for those
purchases in excess of $100,000 for goods; and $200,000 for playground and
construction; and $50,000 for services. If Council does not object to these items being
sent out for bid or proposal within one week of them appearing on the agenda, and
upon final notice to proceed from the requesting department, the IFB or RFP may be
sent out to the potential bidder/respondent list.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@cityofberkeley.info Website: http://www.cityofberkeley.info/manager

89

Formal Bid Solicitation and Request for Proposal

Scheduled for Possible Issuance After Council
Approval On October 6, 2015

CONSENT CALENDAR
October 6, 2015

BACKGROUND
On May 6, 2008, Council adopted Ordinance No. 7,035-N.S., amending the City
Managers purchasing authority for services.
ENVIRONMENTAL SUSTAINABILITY
The Finance Department reviews all formal bid and proposal solicitations to ensure that
they include provisions for compliance with the Citys environmental policies. For each
contract that is subject to City Council authorization, staff will address environmental
sustainability considerations in the associated staff report to City Council.
CONTACT PERSON
Dennis Dang, Acting General Services Manager, Finance, 510-981-7329
Attachments:
1: Formal Bid Solicitation and Request for Proposal Scheduled For Possible Issuance
After Council Approval on October 6, 2015.
a. New Sewer CCTV Camera Van
Note: Original of this attachment with live signature of authorizing personnel is on file in
General Services.

Page 2 of 2

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$160,000

ESTIMATED
COST

$160,000

APPROX.
INTENDED USE
BID
OPENING
DATE
10/27/2015 CCTV camera van for
inspecting sewer lines

GRAND TOTAL

10/7/2015

APPROX.
RELEASE
DATE

$160,000

DESCRIPTION OF
GOODS /
SERVICES BEING
PURCHASED
New Sewer CCTV
Camera Van

DEPT. TOTAL

16-10987-C

SPECIFICATION
NO.

DATE SUBMITTED: October 6, 2015

DEPT. / DIVISION

830-5503-432-7042
PW/Equipment
(Funds will be
Maintenance
appropriated as part of the
First Amendment to the FY
2016 Annual
Appropriations Ordinance.)

BUDGET CODE TO BE
CHARGED

FORMAL BID SOLICITATION TO BE ISSUED WITHIN THE NEXT 30 DAYS

Bill Ivie
981-6469

1 of 1

CONTACT
NAME & PHONE

Attachment 1

92

03

Office of the City Manager

CONSENT CALENDAR
October 6, 2015
To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: David Abel, Acting Director of Human Resources

Subject:

Salary: Parking Enforcement Manager Classification

RECOMMENDATION
Adopt a Resolution amending Resolution No. 66,685-N.S., Classification and Salary
Resolution for Public Employees Union Local One, to increase the salary range of the
Parking Enforcement Manager classification to $6,683 to $8,150 per month, effective
October 6, 2015.
FISCAL IMPACTS OF RECOMMENDATION
The estimated total cost (salary and benefits) of this proposal for the remainder of FY2016
is $14,003. The Police Department will fund the increased cost of this position from the
Parking Meter Fund, Budget Code 840-7303-420-1101.
CURRENT SITUATION AND ITS EFFECTS
The Parking Enforcement Manager classification was established in January 2012 to
manage the Parking Enforcement Unit in the Police Department. This single position,
non-sworn classification is responsible for directing, planning, and organizing the
activities of the Parking Enforcement Unit; and to ensure that parking enforcement
programs, services, activities, and records are in compliance with all applicable state and
federal mandates.
The position has two direct reports (Parking Enforcement
Supervisors), and twenty-one indirect reports (Parking Enforcement Officers).
When the incumbent vacated the position on January 27, 2015, staff immediately initiated
the recruitment process in an effort to assist the Police Department in filling this critical
position expeditiously. The application filing deadline was set from February 23, 2015 to
March 23, 2015, but had to be extended to April 6, 2015, since many of the applications
received did not meet the minimum qualifications required for the position. During that
time period, staff worked to actively recruit for the position by conducting extensive
outreach activities, which included posting the job announcement with several
associations and on various websites, and a massive mail/email distribution targeting
individuals in the field. By the end of that six-week recruitment process, there were only
two viable candidates and both declined to interview for the position.

93

Salary: Parking Enforcement Manager Classification

CONSENT CALENDAR
October 6, 2015

As a result of the outcome from the extensive recruitment for the Parking Enforcement
Manager position, Michael Meehan, Police Chief approached Human Resources to
evaluate the classification. Staff reviewed the classification, and resurveyed the
classification for updated salary information. Based on the recent market data from the
survey results, staff propose an increase to the existing salary, in order to address the
recruitment issues for this classification. After a comprehensive and thorough analysis of
the relevant information, staff has determined that there is only one match comparable to
our single-position classification, which is the Parking Enforcement Administrator
classification in the City & County of San Francisco. Therefore, staff proposes to align
the salary of the Parking Enforcement Manager to the position in San Francisco by
increasing the monthly salary range to $6,683-$8,150.
When the classification was created in 2012, the Parking Enforcement Administrator
classification in the City & County of San Francisco was determined to be a comparable
classification. However, when staff resurveyed the Parking Enforcement Manager
classification to obtain updated information, staff learned that the salary data used in the
original salary recommendation reflected wage reductions of certain classifications in the
City and County of San Francisco, which have since been restored. Increasing the salary
range for the Parking Enforcement Manager will ensure the salary is competitive in our
labor market and will aid in our recruitment efforts.
BACKGROUND
The Personnel Board discussed the proposal at its September 1, 2015 meeting and voted
(MSC: (Murray/Dixon) Yes: Roter, Murray, Dixon, Wenk, Watson; Absent: Vizas, Kidd) to
recommend the following to the City Council:
1. Increase the salary for the classification of Parking Enforcement Manager, exempt
from the overtime provisions of the Fair Labor Standards Act (FLSA) and eligible
for Administrative Leave, in Representation Unit M (Management), to a monthly
salary range of $6,683-$6,987-$7,355-$7,742-$8,150, effective October 6, 2015.
ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the
subject of this report.
RATIONALE FOR RECOMMENDATION
It has been the policy of the City to maintain and revise the classification and salary
schedule on a regular basis to accommodate assignment of new duties and
responsibilities, reflect programmatic changes, maintain competitive salaries and, when
applicable, comply with regulatory requirements.
ALTERNATIVE ACTIONS CONSIDERED
None

94

Salary: Parking Enforcement Manager Classification

CONSENT CALENDAR
October 6, 2015

CONTACT PERSON
Rebecca Chen, Associate Human Resources Analyst, 981-6822
Attachment
1. Resolution
Exhibit A: Salary Schedule

95

RESOLUTION NO. ##,### N.S.

CLASSIFICATION: PARKING ENFORCEMENT MANAGER
WHEREAS, the Human Resources Department maintains the Classification and
Compensation plan for the City of Berkeley; and
WHEREAS, the Police Chief has requested the Human Resources Department to
research and propose solutions in an effort to address the recruitment issues for the
classification of Parking Enforcement Manager; and
WHEREAS, Human Resources Department have completed an updated salary survey;
and
WHEREAS, the Personnel Board recommended on September 1, 2015 to increase the
salary for the classification of Parking Enforcement Manager, exempt from the overtime
provisions of the Fair Labor Standards Act (FLSA) and eligible for Administrative Leave,
in Representation Unit M (Management), to a monthly salary range of $6,683-$6,987$7,355-$7,742-$8,150, effective October 6, 2015.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that
Resolution 66,685-N.S., Classification and Salary Resolution for Public Employees Union
Local One is amended to increase the salary for the classification of Parking Enforcement
Manager with a salary range as shown on Exhibit A, effective October 6, 2015.

96

Exhibit A

Salary Schedule
Job
Code

Unit

1428

Class
Parking Enforcement
Manager

FLSA

Steps
C

Effective
Date

$6,683

$6,987

$7,355

$7,742

$8,150

10/6/15

97

98

04

Office of the City Manager

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront

Subject:

Contract No. 9169B Amendment: Townsend Management Inc. for

Additional Construction Management and Construction Support Services
for Parks Capital Improvement Projects

RECOMMENDATION
Adopt a Resolution authorizing the City Manager to execute an amendment to Contract
No. 9169B with Townsend Management, Inc. (TMI) to provide additional construction
management and construction support services for parks capital improvement projects,
in an amount not to exceed $110,000 for a total contract amount not to exceed
$301,096, and extending the term through December 31, 2016.
FISCAL IMPACTS OF RECOMMENDATION
Funds for the additional scope of work in the amount of $110,000 will be provided from
the following funds: $55,000 from the National Fish and Wildlife Foundation Cosco
Busan grant fund, budget code 421-5950-450.30-38, and $55,000 from the Marina
Fund, budget code 825-5950-450.30-38. The Contract Management System number for
this contract amendment is CMS No. APF1J.
CURRENT SITUATION AND ITS EFFECTS
TMI has provided reliable construction management services for Parks projects
including the Bay Trail Extension Project, Segments One and Two, and Willard Park
Tennis Courts Renovation, which have been completed. They are currently providing
construction management services at Terrace View Park Basketball Court
Improvements and Virginia-McGee Totland Play Area and Drainage Improvements and
are to provide construction management services for the Bay Trail Extension Project
Segment 3 and South Cove Public Dock Project. Additional services are required to
complete these projects.
Because of the number of upcoming PRW projects, PRW anticipates utilizing TMI in
addition to existing On-Call Project Management and Construction Management
Services contracts with KPM Consulting LLC and Anchor Engineering through the
Department of Public Works (DPW).
Additional upcoming Parks, Recreation & Waterfront (PRW) improvement projects that
will need construction management services include Grove Park Tennis and Basketball
2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/manager

99

Contract No. 9169B Amendment: Townsend Management Inc. for

Additional Construction Management and Construction Support Services

CONSENT CALENDAR
October 6, 2015

Court Improvements; Ohlone Dog Park Renovation; Willard Park Play Area and
Pathway Renovation; Berkeley Rose Garden Trellis Rehabilitation; John Hinkel Picnic
and Play Area, James Kenney Play Area, and additional ball court and ball field
projects.
The DPW contracts are for both Project Management and Construction Management,
and will be shared for projects through both Departments, therefore a new Request for
Qualifications process may be initiated for On-Call Consultants specifically for
Construction Management to begin in FY2017. With that process and some planned
overlap with the DPW contracts, new Construction Management contracts should be
available for future parks capital improvement and major maintenance projects.
City staff does not currently have the capacity to perform construction management
services for these projects, and Townsend Management, Inc. has provided relliable
services to the City since 2013. TMI has also proven to be experienced in managing
Federal-Aid Projects and Grant-funded projects and their expertise will be utilized for
the Bay Trail Extension Segment 3 project as well as the South Cove Public Dock
Project. Both of these projects have been awarded federal and state funds. Staff
therefore recommends a contract amendment with Townsend Management, Inc.
BACKGROUND
In 2012, the City requested proposals for construction management services from three
firms, and Townsend Management, Inc. (TMI) was selected as the most qualified firm to
provide these services. On January 2, 2013, the City entered into a contract with TMI to
provide construction management services for the Bay Trail Extension project for an
amount not to exceed $47,500 (Contract No. 9169).
On May 21, 2013, the Council authorized the City Manager to execute an amendment
to Contract No. 9169 to provide additional construction management services for the
Bay Trail Extension project and other parks improvement projects for an amount not to
exceed $131,096 and extend the term through June 30, 2014.
On June 10, 2014, Council authorized the City Manager to execute a second
amendment to Contract No. 9169 to provide additional construction management
services for the Bay Trail Extension project and other parks improvement projects for an
amount not to exceed $191,096 and extend the term through December 31, 2015.
ENVIRONMENTAL SUSTAINABILITY
These parks capital renovation projects include requirements to comply with the Citys
Environmentally Preferable Purchasing Policy, the Citys Bay Friendly Landscaping
Ordinance, the 95% construction and demolition waste diversion requirement, and the
Citys current stormwater pollution prevention requirements for construction and postconstruction phases. One of the key duties for the construction management
contractor, Townsend Management Inc. will be to ensure that these requirements are
met and documented properly during construction.

Page 2

100

Contract No. 9169B Amendment: Townsend Management Inc. for

Additional Construction Management and Construction Support Services

CONSENT CALENDAR
October 6, 2015

RATIONALE FOR RECOMMENDATION

City staff does not currently have the capacity to perform construction management
services. Townsend Management, Inc. (TMI) has extensive experience providing
construction management services and related services for a wide range of capital
improvement and engineering projects. TMI is highly competent and has successfully
assisted the City in completing the construction of the Bay Trail Extension projects and
the Willard Park Tennis Courts Renovation project, and are currently assisting with the
Terrace View Park Basketball Court Improvements and Virginia-McGee Totland Play
Area and Drainage Improvements. They have also assisted the City in meeting the
complex documentation requirements for federal-aid and grant-funded projects.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Scott Ferris, Director, Parks Recreation & Waterfront, 981-6700
Peggy Gibbons, Deputy Director, PRW, 981-6712
Deborah Chernin, Principal Planner, PRW, 981-6715
Evelyn Chan, Associate Civil Engineer, PRW, 981-6430
Attachments:
1: Resolution

Page 3

101

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 9169B AMENDMENT: TOWNSEND MANAGEMENT SERVICES,
INC. FOR PARKS CONSTRUCTION MANAGEMENT AND RELATED SERVICES FOR
CAPITAL IMPROVEMENT PROJECTS
WHEREAS, Townsend Management, Inc. has provided reliable construction
management services for the Bay Trail Extension Project, segments one and two, which
have been closed out; and are currently providing construction management services
for Terrace View Park Basketball Court Improvements and Virginia-McGee Totland Play
Area and Drainage Improvements; and
WHEREAS, upcoming parks capital improvement projects that will need construction
management services include the following: Bay Trail Extension Project Segment 3,
South Cove Public Dock Project, Grove Park Tennis and Basketball Court
Improvements; Ohlone Dog Park Renovation; Willard Park Play Area and Pathway
Renovation; Berkeley Rose Garden Trellis Rehabilitation; and additional ball court and
ball field projects; and
WHEREAS, in 2012, the City requested proposals for construction management
services from three firms, and Townsend Management, Inc. (TMI) was selected as the
most qualified firm to provide these services; and
WHEREAS, on January 2, 2013, the City entered into a contract with TMI to provide
construction management services for the Bay Trail Extension project for an amount not
to exceed $47,500 (Contract No. 9169) for a contract period expiring December 31,
2013; and
WHEREAS, on May 21, 2013 by Resolution No. 66,162-N.S., Council authorized the
City Manager to execute an amendment to Contract No. 9169 with TMI for Construction
Management and Support Services for the Bay Trail Extension project and upcoming
parks improvement projects, increasing the amount by $83,596 for a revised contract
amount not to exceed $131,096 and extending the term to June 30, 2014; and
WHEREAS, on June 10, 2014 by Resolution No. 66,643-N.S., Council authorized the
City Manager to execute a second amendment to Contract No. 9169 with TMI for
Construction Management and Support Services for parks improvement projects,
increasing the amount by $60,000 for a revised contract amount not to exceed
$191,096 and extending the term to December 31, 2015; and
WHEREAS, Contract No. 9169B is approaching the authorized not to exceed amount of
$191,096 and is needed to complete existing projects and address on-going
maintenance and capital program needs over the next fiscal year; and

102

WHEREAS, City staff does not currently have the capacity to perform construction
management services for these projects, and Townsend Management, Inc. has
provided these services in a reliable way to the City since 2013; and
WHEREAS, funds for the additional scope of work in the amount of $110,000 will be
provided from the following funds: $55,000 from the National Fish and Wildlife
Foundation Cosco Busan grant fund, budget code 421-5950-450.30-38, and $55,000
from the Marina Fund budget code 825-5950-450.30-38, and the contract amendment
has been entered into the Citywide contract database as CMS No. APF1J.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the
City Manager is authorized to execute an amendment to Contract No. 9169B with
Townsend Management, Inc. in an amount not to exceed $110,000 for a total contract
amount not-to-exceed $301,096 for construction management and construction support
services for parks capital improvement projects and extending the term through
December 31, 2016. A record copy of the contract and any amendments to be on file in
the Office of the City Clerk.

Page 2

103

104

05

Office of the City Manager

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront

Subject:

Contract Amendments: On-Call Landscape Architecture and Project

Development Services Dillingham Associates and McArdle Design Inc.

RECOMMENDATION
Adopt two Resolutions authorizing the City Manager to execute amendments to the
following two contracts for on-call landscape architecture services, extending the initial
terms ending November 1, 2016 to June 30, 2017:
1. Dillingham Associates, Contract No. 9537A, increasing the amount by $83,000 for a
new contract amount not to exceed $275,000;
2. McArdle Design Inc. (formerly known as Hansen McArdle Inc.), Contract No. 9529,
increasing the amount by $100,000 for a new contract amount not to exceed
$200,000.
FISCAL IMPACTS OF RECOMMENDATION
These on-call contracts are both approaching their currently authorized not-to-exceed
amounts. Funding for these on-call contracts will be provided by the Parks Tax Fund,
the Capital Improvement Fund, and Measure WW funds allocated to the City by the
East Bay Regional Park District.
Dillingham Associates Landscape Architects
Original contract amount ......................... $100,000
Previous amended amount ....................... $92,000
This amended amount
$83,000
Total contract amount
not to exceed $275,000
McArdle Design Inc.
Original contract amount ......................... $100,000
This amended amount
$100,000
Total contract amount
not to exceed $200,000
These contract amendments have been entered with the following CMS numbers:
1. Dillingham Associates Landscape Architects ......................... CMS No. S2PWJ
2. McArdle Design Inc. ................................................................ CMS No. XFX25

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/manager

105

Contract Amendments: On-Call Landscape Architecture and

Project Development Services

CONSENT CALENDAR
October 6, 2015

CURRENT SITUATION AND ITS EFFECTS

The Parks Recreation & Waterfront Department has successfully used the existing oncall landscape architecture contracts to aid with the design and bidding of various
projects to address deferred maintenance repairs and improvements as mentioned in
the PRW 5-Year Capital Improvement and Major Maintenance Needs, presented at the
March 24, 2015 Council Worksession.
(http://www.cityofberkeley.info/Clerk/City_Council/2015/03_Mar/City_Council__03-24-2015__Special_Meeting_Annotated_Agenda.aspx)

Of the six highly qualified on-call landscape architect firms currently under contract with
the City, Dillingham Associates is currently working on completing Grove Park Tennis
and Basketball Courts Renovations and McArdle Design Inc. is currently working on
Willard Park Play Area and Pathway Renovations. The Dillingham Associates contract
requires an amendment to complete existing work. The McArdle Design Inc. contract
requires an amendment to receive additional projects in the Departments 5-Year capital
improvement and major maintenance plan as discussed at the March 24, 2015
worksession.
A new Request for Qualifications (RFQ) process will be initiated in FY 2016 for on-call
landscape architectural design services to begin in FY 2017. With that process and
some planned overlap, new contracts will be available for future capital improvement
and major maintenance projects.
BACKGROUND
On July 15, 2013, the City issued a Request for Qualifications (RFQ) for on-call
landscape architectural and project development services. The City received 24
Statements of Qualifications (SOQs). After evaluation by a five-member review panel,
Dillingham Associates and McArdle Design Inc. were among the firms selected, and on
October 19, 2013, the City Council authorized the City Manager to execute contracts for
on-call landscape architectural services for a three-year period ending on November 1,
2016.
In January 2014, a contract with Dillingham Associates was executed. On June 10,
2014, the City Council authorized the City Manager to amend Dillingham Associates
contract after successful completion of bid documents and construction support for the
Willard Tennis Court Renovation Project to perform additional work on similar projects.
In January 2014, a contract with McArdle Design Inc. was executed. They successfully
completed landscape improvements around North Berkeley Senior Center, South
Berkeley Senior Center, and Ann Chandler Public Health Center.
The City uses these on-call consultants to supplement City staff for project design and
management, including situations where the nature of the work is specialized, such as,
landscape architecture design and construction administration. On-call consultants
enable the City to meet tight schedules particularly for grant-funded projects.

Page 2

106

Contract Amendments: On-Call Landscape Architecture and

Project Development Services

CONSENT CALENDAR
October 6, 2015

ENVIRONMENTAL SUSTAINABILITY
Consultants and City staff evaluate water and energy efficiency upgrade opportunities
during the design of renovation projects. Improving City facilities and reducing water
and energy consumption is consistent with the Citys Climate Action Plan goals.
RATIONALE FOR RECOMMENDATION
The firms Dillingham Associates and McArdle Design Inc. each assembled teams that
are highly qualified. They have the required expertise in design, landscape architecture,
project management, and support to meet the Citys on-going maintenance and capital
program needs, and complement the personnel and capacity available in the Parks
Recreation and Waterfront Department.
ALTERNATIVE ACTIONS CONSIDERED
None
CONTACT PERSON
Scott Ferris, Director, Parks Recreation & Waterfront, 981-6700
Peggy Gibbons, Deputy Director, PRW, 981-6712
Deborah Chernin, Principal Planner, PRW, 981-6715
Evelyn Chan, Associate Civil Engineer, PRW, 981-6430
Attachments:
1: Resolution: Dillingham Associates
2: Resolution: McArdle Design Inc.

Page 3

107

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 9537A AMENDMENT: DILLINGHAM ASSOCIATES FOR ON-CALL
LANDSCAPE ARCHITECTURE AND PROJECT DEVELOPMENT SERVICES
WHEREAS, July 15, 2013, the City released a Request for Qualifications (Specification
No. 13-10765-C) seeking firms or individuals to provide on-call landscape architecture
and project development services; and
WHEREAS, on August 15, 2013, the City received 24 Statements of Qualifications,
which were reviewed and ranked by a 5-person selection panel; and
WHEREAS, on October 29, 2013 by Resolution No. 66,350-N.S, Council authorized the
City Manager to approve a contract and any amendments with Dillingham Associates
for on-call landscape architecture and project development services for the contract
period of November 4, 2013 through November 1, 2016 in an amount not to exceed
$100,000; and
WHEREAS, on June 10, 2014 by Resolution No. 66,644-N.S, Council authorized the
City Manager to execute an amendment to Contract No. 9537 with Dillingham
Associates for on-call landscape architecture and project development services
increasing the amount by $92,000 for a revised contract amount not to exceed
$192,000; and
WHEREAS, Contract No. 9537A is approaching the authorized not to exceed amount of
$192,000 and on-call landscape architecture and project development services are
needed for on-going maintenance and capital program needs over the next fiscal years;
and
WHEREAS, funding will be identified and requested for appropriation as projects arise;
and the contract amendment has been entered into the Citywide contract database as
CMS No. S2PWJ.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the
City Manager is authorized to execute an amendment to Contract No. 9537A with
Dillingham Associates for on-call landscape architecture and development services
increasing the amount by $83,000 for a revised contract amount not to exceed
$275,000, and a revised contract term expiring June 30, 2017.

108

RESOLUTION NO. ##,###-N.S.

CONTRACT NO. 9529 AMENDMENT: MCARDLE DESIGN INC. FOR ON-CALL ONCALL LANDSCAPE ARCHITECTURE AND PROJECT DEVELOPMENT SERVICES
WHEREAS, July 15, 2013, the City released a Request for Qualifications (Specification
No. 13-10765-C) seeking firms or individuals to provide on-call landscape architecture
and project development services; and
WHEREAS, on August 15, 2013, the City received 24 Statements of Qualifications,
which were reviewed and ranked by a 5-person selection panel; and
WHEREAS, on October 29, 2013 by Resolution No. 66,351-N.S, Council authorized the
City Manager to approve a contract and any amendments with McArdle Design Inc.
(formally known as Hansen & McArdle) for on-call landscape architecture and project
development services for the contract period of November 4, 2013 through November 1,
2016 in an amount not to exceed $100,000; and
WHEREAS, Contract No. 9529 is approaching the authorized not to exceed amount of
$100,000 and on-call landscape architecture and project development services are
needed for on-going maintenance and capital program needs over the next fiscal years;
and
WHEREAS, funding will be identified and requested for appropriation as projects arise;
and the contract amendment has been entered into the Citywide contract database as
CMS No. XFX25.
NOW THEREFORE, BE IT RESOLVED by the Council of the City of Berkeley that the
City Manager is authorized to execute an amendment to Contract No. 9529 with
McArdle Design Inc. for on-call landscape architecture and development services
increasing the amount by $100,000 for a revised contract amount not to exceed
$200,000, and a revised contract term expiring June 30, 2017.

Page 2

109

110

06

Office of the City Manager

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Scott Ferris, Director, Parks Recreation & Waterfront

Subject:

Berkeley Tuolumne Camp Update and Authorization to File a Special Use

Permit Application with the United States Forest Service

RECOMMENDATION
Adopt a Resolution:
1. Authorizing the City Manager to file a Special Use Permit (SUP) application with
the United Stated Forest Service (USFS) to allow the City of Berkeleys
Tuolumne Camp (BTC) to operate in its current location for 30 years; and
2. Authorizing the City Manager to execute a contract with the USFS in an amount
not to exceed $60,000 to provide National Environmental Policy Act (NEPA)
consultation and review for the Master Development Plan process.
FISCAL IMPACTS OF RECOMMENDATION
Funds for the contract with the USFS in the amount of $60,000 are available in the
Camps Fund reserve. An appropriation of $60,000 will be included in the First
Amendment to the FY 2016 Annual Appropriations Ordinance and budgeted in Camps
Fund budget code 330-5998-450.30-38 (CMS No. 08CP01).
CURRENT SITUATION AND ITS EFFECTS
In order to rebuild BTC, the City must complete a new Master Development Plan and
receive a Special Use Permit from the USFS. As part of this process the City and the
USFS must jointly complete a concept design that will be used as the basis for the
National Environmental Policy Act (NEPA) review process. The City will conduct a
separate California Environmental Quality Act (CEQA) review process.
Before the NEPA process can begin, a Special Use Permit (SUP) Application must be
submitted and formally accepted by the USFS. Once submitted, the USFS has up to 30
days to review and formally accept the SUP Application. At that point, the NEPA and
CEQA processes will begin. These processes will include an opportunity for extensive
public feedback. After completion of the federal and state environmental review
processes, the City can proceed with the design, permitting, and construction process.
At the earliest, this process will be completed in 2018.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/manager

111

Berkeley Tuolumne Camp Update and Authorization to File a

Special Use Permit Application with the United States Forest Service

CONSENT CALENDAR
October 6, 2015

BACKGROUND
The Citys Berkeley Tuolumne Camp (BTC) has been in operation since 1922. The
camp has been a summer tradition for generations of Berkeley residents, with more
than 4,000 individuals per year enjoying the fun-filled activities and heart-felt traditions
at Tuolumne Camp.
On August 25, 2013, the camp was largely destroyed during the Rim Fire, one of the
largest and most damaging wildfires in Californias history, burning an estimated
257,000 acres. During the first six months following the fire, the City and its contractor,
American Integrated Services, Inc., carefully assessed and remediated the
approximately 15-acre site while protecting the many natural resources. In April 2014,
the USFS completed the Rim Hazard Tree Environmental Assessment (EA) for portions
of the burned area that included the BTC site, and subsequently removed many of the
hazardous trees throughout the burned area.
During the past 18 months, staff has worked with USFS officials to determine the
guidelines for the new Master Development Plan. On March 2, 2015, the City received a
tentative approval of a conceptual plan from the USFS that both the City and USFS
believe will be a road map for the successful redevelopment of the camp.
Over the past three months, the City, in collaboration with USFS, has undertaken a
public process in order to help shape the Berkeley Tuolumne Camp Master
Development Plan. This public process consisted of an internet survey and numerous
public workshops and meetings. The internet survey received 440 responses, and the
public workshops, in Berkeley, Groveland, and Echo Lake Camp, were attended by
more than 80 participants. Additionally, staff met with many former Berkeley Tuolumne
Camp staff members and the Friends of Berkeley Tuolumne Camp (FOBTC), as well as
the City of Berkeley Parks and Waterfront Commission.
The views expressed at the public workshops generally reflected those of the internet
survey. However, because of the workshop format and opportunity to discuss the plans
in detail, many constructive ideas surfaced about the particulars of the Camp, its
operation, and ways to improve the Camp without losing its unique sense of place and
experience.
Summaries of the ideas expressed at these workshops and the internet survey, updated
Master Development Plans, and additional information can be found on the City of
Berkeley Tuolumne Camp Website:
http://www.ci.berkeley.ca.us/Parks_Rec_Waterfront/Recreation/Berkeley_Tuolumne_Ca
mp.aspx
Gathering public feedback was part of the pre-scoping process in order to create a draft
design that will be used as the Citys and USFS submittal for both the National
Environmental Policy Act (NEPA) and California Environmental Quality Act (CEQA)
environmental analysis and decision making processes.

Page 2

112

Berkeley Tuolumne Camp Update and Authorization to File a

Special Use Permit Application with the United States Forest Service

CONSENT CALENDAR
October 6, 2015

The City is currently working with the USFS to assemble a Scoping Package that will
include descriptions of the expansion of the Camps permit area as an amendment to
the Stanislaus National Forest (STF) Plan, Camp facilities to be constructed in the near
term; the operations of the Camp; and a framework for the revegetation of the Camp
(emphasizing those areas burned by the Rim Fire).
The release of the Scoping Package will take place this fall. Receiving public comments
about the Scoping Package is the first formal step of the environmental review process
being conducted under NEPA guidelines. There will be a 30-day review and comment
period.
An announcement of the availability of the Scoping Package will be posted on the USFS
and Citys web pages and e-mailed to everyone who signed in at the public workshops
or who participated in the internet survey and requested their address be added to the
Citys e-mail list.
Additionally, the City will also be preparing an environmental document for the Camp for
CEQA review. Completing a CEQA document is necessary before the City Council can
adopt the Master Development Plan. After public comment on the Scoping Package, the
City and USFS will refine the Camps plans and then prepare separate NEPA and CEQA
environmental documents, which will also be available for public review and comment.
Council will adopt the final NEPA and CEQA documents.
ENVIRONMENTAL SUSTAINABILITY
The planning, design, and reconstruction of Camp will demonstrate, through a sciencebased stewardship approach, appropriate restoration of the forest landscape after a
catastrophic wildfire in order to achieve sustainable riverine and upland ecosystems that
provide a broad range of benefits to humans and the ecosystem. The long-term goal of
the re-vegetation/reforestation program is to re-establish a forest canopy over the
Camp. Other goals include:

Enhancing the water quality of Camp drainages and the South Fork of the
Tuolumne River with the implementation of Best Management Practices (BMPs)
to encourage biodiversity, preserve resources, and maintain riparian habitat;

Separating water usage for fire suppression from potable uses, and considering
the feasibility of installing a tertiary wastewater treatment system;

Enhancing wildlife linkages through Camp to adjacent forest uplands; and

Protecting Riparian Conservation Areas by providing buffers around all streams

and drainages.

Page 3

113

Berkeley Tuolumne Camp Update and Authorization to File a

Special Use Permit Application with the United States Forest Service

CONSENT CALENDAR
October 6, 2015

Post-wildfire restoration activities will emphasize enhancing native vegetation

cover, stabilizing channels using natural methods, and minimizing exposed bare
soils and erosion.

The Master Development Plan will be subject to the National Environmental Policy Act
(NEPA) and the California Environmental Quality Act (CEQA) to evaluate and address
any potentially significant environmental impacts.
RATIONALE FOR RECOMMENDATION
Before the Scoping Package for the BTC design can be released for public review and
before the NEPA process can begin, a Special Use Permit (SUP) Application must be
submitted to and formally accepted by the USFS. Therefore, staff recommends Council
approval to submit this SUP Application proposing that the USFS issue a 30-year permit
to Camp for occupancy of the land.
ALTERNATIVE ACTIONS CONSIDERED
None.
CONTACT PERSON
Denise Brown, Recreation and Youth Services Manager, 981-6707
Attachments:
1: Resolution
2: Facility Concept Map
3: Camp Permit Area

Page 4

114

RESOLUTION NO.

N.S.

AUTHORIZING THE CITY MANAGER TO FILE A SPECIAL USE PERMIT (SUP)

APPLICATION WITH THE UNITED STATED FOREST SERVICE (USFS) AND
AUTHORIZING THE CITY MANAGER TO EXECUTE A CONTRACT WITH THE USFS
IN AN AMOUNT NOT TO EXCEED $60,000 TO PROVIDE NEPA CONSULTATION AND
REVIEW FOR THE MASTER DEVELOPMENT PLAN PROCESS
WHEREAS, Tuolumne Family Camp has been a beloved institution since the City
started operating it in 1922, and for many families, spending time at Camp is an annual
tradition that spans several generations; and
WHEREAS, Tuolumne Family Camp was largely destroyed during the Rim Fire of 2013,
one of the largest and most damaging wildfires in Californias history, burning an
estimated 257,000 acres; and
WHEREAS, for many families living in an urban environment such as Berkeley,
attending Tuolumne Family Camp provides a unique opportunity to learn about and live
in a natural environment. If Camp were not to be reconstructed, the educational and
recreational opportunities that the Camp provides Berkeleys families may no longer be
available to them; and
WHEREAS, in order to rebuild BTC, the City must complete a new Master Development
Plan and receive a Special Use Permit from the USFS. As part of this process the City
and the USFS must jointly complete a concept design that will be used as the basis for
the National Environmental Policy Act (NEPA) review process. The City will conduct a
separate California Environmental Quality Act (CEQA) review process; and
WHEREAS, funds in the amount of $60,000 to cover this expense are budgeted in the
Camps Fund budget account 330-5998-450.30-35 (CMS No. 08CP01).
NOW THEREFORE, BE IT RESOLVED by the City Council of the City of Berkeley that
the City Manager is hereby authorized to file a Special Use Permit (SUP) application
with the United Stated Forest Service (USFS) to allow Berkeley Tuolumne Camp (BTC)
to operate in its current location for the next 30 years, from 2015 through 2045.
BE IT FURTHER RESOLVED that the City Manager is hereby authorized to execute a
contract with the USFS in an amount not to exceed $60,000 for processing the SUP
application, permit issuance, and monitoring. This includes NEPA review where the
Forest Service will act as consultants to the City regarding Berkeley Tuolumne Camp.

115

MAINTENANCE
CABIN

FAMILY TENT
CABINS

WATER
TREATMENT

CAMP
ENTRANCE

Camping Units with

Mobility Features
R = Restroom
L = Laundry
S = Shower
Accessible Routes of Travel

Trail

Facility Concept

Attachment 2

116

117

MAINTENANCE
CABIN

FAMILY TENT
CABINS

WATER
TREATMENT

CAMP
ENTRANCE

No Trees or Canopy: Hazard

Tree Removal Zone

Generalize Pattern
of Rim Fire

SUGAR PINE TRAIL

SMALL FALLS TRAIL

SMALL
FALLS

0'

Scale

200'

400'

North

Camp Permit Areas

EXHIBIT A

Attachment 3

118

07

Office of the City Auditor

CONSENT CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Ann-Marie Hogan, City Auditor

Submitted by: Ann-Marie Hogan, City Auditor

Subject:

Audit Report: Most Contracts Executed Timely but Contract Project

Managers Could Use Better Tools and Guidance

RECOMMENDATION
Request the City Manager report back by April 26, 2016, and every six months
thereafter, regarding the status of recommendations until reported fully implemented.
CURRENT SITUATION AND ITS EFFECTS
Our review of invoices and contract start dates for 226 expenditure contracts initiated in
fiscal year 2014 indicated that the City incurred costs for services not authorized by fully
executed contracts in 15 or 7 percent of contracts. While this continues to be an area of
concern, it represents a vast improvement over the Citys 58 percent non-compliance
rate noted in our Citywide Contract Compliance Audit Report, issued May 18, 2004.1
We commend the City for its efforts and challenge management to address longstanding barriers to efficiency, timeliness, and compliance. Management can meet
these challenges by:

Enhancing the current training program for project managers to ensure that they
have the proper knowledge, skills and abilities to perform their duties. The training
should address effective planning strategies, including the use of timelines with key
milestone dates and spreadsheets to track and monitor contracts.

Working with Information Technology to turn an ad hoc query of expiring contracts

into an On Demand report that project managers can access as needed and use as
a tool for ensuring that they initiate the contract renewal process timely.

Requiring departments to document department-specific procedural guidance for

contract project managers and support staff, including expected timeframes for
specific actions, and aligning contract needs with department work plans to ensure
timely contract execution.

Planning for a true contract management system that will allow City staff to
streamline contract preparation, review, and approval; and eliminate redundancies.

http://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3_-_General/ContractReportfinalwcmchanges.pdf
2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-mail: auditor@CityofBerkeley.info Website: http://www.CityofBerkeley.info/auditor

119

Audit Report: Most Contracts Executed Timely but Contract

Project Managers Could Use Better Tools and Guidance

CONSENT CALENDAR
October 6, 2015

FISCAL IMPACTS OF RECOMMENDATION

The City incurred costs of over $80,000 for services provided on 15 new expenditures
contracts before the agreements were executed. Services provided and the associated
costs incurred without an executed contract are by definition unauthorized and
represent work done without the contract covenants in place to protect the City from
legal ramifications.
The City could free up staff time for more productive use by reducing the resources
devoted to the resubmission of incomplete or incorrect contract packages. The General
Services Manager estimates a rejection rate of about 40 percent on initial contract
submissions. This requires additional staff time to make corrections not only by the
General Services Manager, but also departmental staff time.
BACKGROUND
The City of Berkeley entered into or amended over 560 contracts during fiscal year
2014 for projects ranging from infrastructure improvements to veterinary care. This
included both expenditure and revenue contracts valued at approximately $137 million:
$24 million in revenue agreements and $113 million in expenditure agreements.
Contract administration for the City is centralized in the Finance Department, under the
General Services Manager. The General Services Manager reviews contract packages
for completeness and serves as the single point of contact for the departments project
managers. Project managers are responsible for initiating the procurement process,
shepherding contract packages through the approval process, and monitoring contract
activity. Together, the General Services Manager and project managers are the primary
players in the administration of City contracts.
ENVIRONMENTAL SUSTAINABILITY
Our office manages and stores audit workpapers and other documents electronically to
significantly reduce our use of paper and ink. The purchase of a contract management
system that allows for automated workflows, reviews, and approvals provides an
opportunity to further reduce the Citys use of paper and ink.
RATIONALE FOR RECOMMENDATION
Implementing our recommendations will help the City to further enhance and streamline
its contract management function.
CONTACT PERSON
Ann-Marie Hogan, City Auditor, (510) 981-6750
Attachments:
1: Audit Report: Most Contracts Executed Timely but Contract Project Managers Could
Use Better Tools and Guidance

120

Attachment 1

City of Berkeley
Office of the City Auditor

Most Contracts Executed Timely but Contract Project

Managers Could Use Better Tools and Guidance

Prepared by:
Ann-Marie Hogan, City Auditor, CIA, CGAP
Claudette Biemeret, Audit Manager, CGAP
Frank Marietti, Senior Auditor, CIA, CFE, CGAP
Matthew Grady, Senior Auditor, CPA, CFA

Presented to Council October 6, 2015

2180 Milvia Street, Berkeley, CA 94704 i Tel: (510) 981-6750 i TDD: (510) 981-6903 i Fax: (510) 981-6760
E-mail: auditor@cityofberkeley.info i Web: www.cityofberkeley.info/auditor

121

TABLE OF CONTENTS
Executive Summary............................................................................................................. 1
Audit Objectives .................................................................................................................. 3
Background ......................................................................................................................... 3
Finding and Recommendations .......................................................................................... 5
Finding 1:

The City vastly improved its performance in securing fully executed

agreements before contract work commences, but barriers to full
compliance must be addressed ......................................................... 5

Fiscal Impact...................................................................................................................... 12
Conclusion ......................................................................................................................... 13
Appendix A:
Scope and Methodology ....................................................................................... 14
Appendix B:
Audit Finding, Recommendations, and Management Response Summary ......... 16

i
122

City Of Berkeley - Office Of the City Auditor

Most Contracts Executed Timely but Contract Project Managers

Could Use Better Tools and Guidance
October 6, 2015

Purpose of the Audit

We conducted this audit to determine whether the City of Berkeley had allowed vendors to
perform work without a fully executed contract in place, as well as to identify the root cause(s),
costs incurred, and risks associated with any unauthorized services.

Executive Summary
Only 7% of contracts
incurred costs before the
City secured the
agreements; vast
improvement over 2004
rate of 58%

Long-standing barriers to
effective contract
management must be
addressed to achieve full
compliance
Contract management
system, better training,
and better planning are
necessary tools for
success

Our review of invoices and contracts for 226 expenditure contracts

entered into in fiscal year 2014 indicated that costs incurred for
vendor services were not authorized by fully executed contracts in
15, or 7 percent, of contracts. In total, the City incurred over
$80,000 in costs for vendor services prior to the City Managers final
review and approval of the contracts in question. In some instances,
costs incurred were for services provided months in advance of final
approval, leaving the City unnecessarily exposed to financial risks.
While this continues to be an area of concern, it represents a vast
improvement over the Citys 58 percent non-compliance rate noted
in our Citywide Contract Compliance Audit Report, issued May 18,
2004. We commend City staff for their efforts and challenge
management to attend to the long-standing barriers that must be
addressed to ensure that all vendor services are authorized by fully
executed contracts.
The primary obstacles preventing the City from executing all of its
contracts in a timely manner are (1) the lack of an effective contract
management system; (2) inadequate training and procedural
guidance for staff assigned as project managers; and (3) inadequate
planning for contracts.
The existing contract management system is a management system
in name only. It cannot provide automated workflows for contract
review and approval. Nor does it have the ability to manage
contract milestones through automated alerts. Most important, it
does not provide for a citywide, structured process to manage
contract creation and execution. As a result, project managers are
not always aware of the current status of their contracts, which in
turn has allowed costs to be incurred for services performed
without executed contracts.

123

High rejection rates on

contract packages and
lack of clarity on the role
of project managers
indicate the need for
better training for
employees

In addition, several factors indicated a need for better training and

professional development for employees assigned as project
managers. According to Finance, about 40 percent of contract
packages submitted to General Services are returned to the
departments for corrections, sometimes doubling the review and
approval time. Project managers were not always clear on what
constitutes a fully executed contract, on the risks associated with
allowing vendors to commence services without contracts, or on
their roles as project managers.

Better planning is
needed to provide
coverage for much
needed services

Finally, management needs to improve overall planning to ensure

contract coverage for important services, such as veterinary care,
public safety, and towing. Most of the costs incurred for
unauthorized services occurred due to lack of planning to ensure
that the procurement process was completed before the current
contracts expired. Reasons cited for lapsed contract coverage
included failure to initiate the procurement process in a timely
manner, absence of key personnel, and lack of procedural guidance
on the procurement process.

Recommendations
Our recommendations are focused on providing the City a stronger framework for managing its
contracts to ensure that costs incurred for vendor services are authorized by fully executed
contracts. This includes:

Enhancing the current training program for contract project managers to ensure that
they have the proper knowledge, skills and abilities to perform their duties. The training
should address, among other things, effective planning strategies, including the use of
timelines with key milestone dates and spreadsheets to track and monitor contracts.

Working with Information Technology to turn the ad hoc query of expiring contracts into
an On Demand report that project managers can access as needed and use as a tool for
ensuring that they initiate the contract renewal process on a timely basis.

Requiring departments to document department-specific procedural guidance for

contract project managers and support staff, including expected timeframes for specific
actions, and aligning contract needs with department work plans to ensure timely
contract execution.

Planning for a true contract management system that will allow City staff to streamline
contract preparation, review, and approval; and eliminate redundancies.
2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-6750 TDD: (510) 981-6903 Fax: (510) 981-6760
E-mail: auditor@cityofberkeley.info Web: www.cityofberkeley.info/auditor
A full copy of the report can be obtained at:
http://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3__General/A.2_RPT_Citywide%20Contracts%20Review_Issue%20Fiscal%20Year%202016.pdf

124

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

AUDIT OBJECTIVES
We conducted this audit to determine whether the City of
Berkeley had allowed vendors to perform work without a fully
executed contract in place, as well as to identify the root cause(s),
costs incurred, and risks associated with any unauthorized
services. We performed the audit as a limited scope follow-up
review of our Citywide Contract Compliance Audit Report, issued
May 18, 2004.1

BACKGROUND
The City contracts
with local vendors to
obtain a wide array
of services

General Services
Manager and Project
Managers are the key
players in contract
management

The City of Berkeley entered into or amended over 560 contracts

during fiscal year 2014 for projects ranging from infrastructure
improvements to veterinary care. This included both expenditure
and revenue contracts valued at approximately $137 million: $24
million in revenue agreements and $113 million in expenditure
agreements. Nearly every agency in the City, including the City
Library and Rent Stabilization Board, had expenditure contracts in
place. Types of services contracted typically include services not
handled by city employees, such as:

Resurfacing and/or rehabilitating streets;

Veterinary care;

Guard services;

Janitorial services;

Vehicle towing services.

Contract administration for the City is centralized in the Finance

Department under General Services. The General Services
Manager reviews contract packages for completeness and serves
as the single point of contact for the departments project
managers. The project manager function is typically a collateral
duty assigned to an employee who has some knowledge in the
subject area. Project managers are responsible for initiating the

Citywide Contract Compliance Audit, May 2004: http://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3__General/ContractReportfinalwcmchanges.pdf

3

125

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

procurement process, shepherding contract packages through the

approval process, and monitoring contract activity. Together, the
General Services Manager and project managers are the primary
players in the administration of City contracts.
City provides multimedia tool chest to
assist employees in
managing contracts

The City has several tools to assist employees in navigating the

procurement process, including the Contract Management
System, Purchasing Manual, and Contracts Online.

City Auditor follow-up

on prior contract
compliance audit

The Contract Management System (CMS) is an in-house

database designed in the early nineties that simply allows
users to track the progress of contracts in the review
process.
The Purchasing Manual provides the policy framework for
initiating and completing contracts.
Contracts Online is a website on the Citys intranet that
provides general procedural guidance, including numerous
templates designed to help streamline the contract
preparation process.

The City Auditors Office previously reviewed contract compliance

in its Citywide Contract Compliance Audit Report, issued May 18,
2004. The previous report found that project managers had
allowed commencement of work prior to contract approval for 58
percent of expenditure contracts during the 21-month period
reviewed. In addition, the audit determined that the CMS
database could not be relied upon for data analysis due to
numerous errors and omissions in key data, such as CMS numbers,
contract amounts, and expiration dates.
For the purposes of this follow-up audit, we limited our scope to
determining whether the City had made improvements to prevent
the commencement of work by vendors before contracts are fully
executed.

126

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

FINDING AND RECOMMENDATIONS

Finding 1: The City
vastly improved its
performance in
securing fully
executed
agreements
before contract
work commences,
but barriers to full
compliance must
be addressed

Our review of 226 expenditure contracts entered into in fiscal year

2014 determined that the City did not have fully executed
contracts in place prior to commencement of services in 15 of
those contracts, or 7 percent. In total, the City incurred costs in
the amount of $80,498 for vendor services provided without fully
executed contracts in place. While this continues to be a problem
area for the City, it represents a vast improvement over the 58
percent non-compliance rate identified in our Citywide Contract
Compliance Audit Report, issued May 18, 2004. In addition, we
noted that the General Services Manager was diligent in ensuring
that all vendors were covered by liability insurance, thereby
mitigating somewhat the risks associated with vendor services
performed without an executed contract in place. We commend
the City for its significant improvement in this area, but challenge
management to address long-standing barriers that are standing
in the way of achieving full compliance. These barriers include (1)
the lack of an effective contract management system, (2)
inadequate training and professional development for staff
assigned as project managers, and (3) inadequate planning for
contracts.

Contract
Management
System lacks the
minimal capabilities
required of an
effective contract
management system

The Citys software for managing its contracts is the Contract

Management System (CMS), a software program developed
approximately a quarter century ago, on the eve of the internet
era. The system does allow for some tracking of contracts through
the procurement process; however, it lacks the minimal
capabilities required of an effective contract management system,
namely: (1) automated workflow for contract review and
approval, (2) the ability to manage contract milestones through
automated alerts, and (3) a citywide, structured process to
manage contract creation and execution.

CMS limitations
discussed in two
previous audits

We previously commented on the limitations of CMS both in our

Citywide Contract Compliance Audit (2004) and our Leases Audit:
Conflicting Directives Hinder Contract Oversight (2009) reports. 2
While management has recognized the need to upgrade to a more

City Auditor List of Issued Audits: http://www.cityofberkeley.info/ContentDisplay.aspx?id=7236

5

127

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

effective contract management system, it deemed such an

undertaking not feasible when previously discussed. If feasibility
continues to be an issue, then management should work in the
interim to develop in-house solutions to assist project managers
with their contract oversight duties. Total costs incurred for
services performed without executed contracts are shown in the
table below.
Costs Incurred for Services Performed Prior to Contract Approval
Periods during which the
City allowed for services
without an executed
contract ranged from
one day to over six
months

Costs incurred for

vendor services on
unexecuted contracts
ranged from $44 to
$35,000

Days Elapsed
Before
Approval
202

Invoice
Date
07/31/13

Date
Contract
Executed
02/18/14

183

01/31/13

109

Costs
Incurred

Contract
No.

1,158.67

9562

08/02/13

1,682.72

9406

07/01/13

10/18/13

85.00

9475

68

08/28/13

11/04/13

840.00

9488

34

10/01/13

11/04/13

5,500.00

9489

25

07/08/13

08/02/13

85.00

9409

24

07/05/13

07/29/13

44.48

9403

22

07/11/13

08/02/13

65.00

9411

17

07/01/13

7/18/13

35,000.00

9388

16

08/19/13

09/04/13

2,223.93

9437

13

08/01/13

08/14/13

2,409.50

9416

13

12/18/13

12/31/13

2,681.67

9534

02/28/14

03/06/14

26,335.15

9577

08/14/13

08/16/13

393.90

9415

01/07/14

01/08/14

1,993.05

9541

Total:

$80,498.07

Average Elapsed Days = 49

Note: Of the 226 contracts included in our contracts review, only these 15 had
contract work performed before full contract approval. Also see Appendix A for
sample selection methodology.

128

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

City needs to
provide a more
robust training
regimen to better
prepare employees
for their roles as
project managers

The absence of an effective contract management system requires

greater reliance on proactive and well-trained project managers
and support staff to ensure that contracts for City services are in
place when needed. It is managements responsibility to ensure
that project managers have the knowledge and skills necessary to
perform their duties. However, based on our interviews and
interactions with the departments project managers,
management is not adequately preparing employees for their
duties as project managers or as support staff for contract
administration. Inconsistent practices, uncertainty regarding basic
contract elements, and high rejection rates on contract
submissions all suggest the need for a more robust training
regimen for project managers and for all those who provide
support to project managers.

Project manager
responses indicate
uncertainties concerning
elements of contract
management

We noted a pattern of uncertainties among project managers in

response to questions regarding contract management and their
roles as project managers or as support staff who assist project
managers with contract administration. There was some confusion
over basic elements of contract management, such as the
definition of a fully executed contract. Most understood that a
contract is not executed until it is signed by all parties to the
agreement, including the City Manager. Some had differing views
on when a contract becomes valid, e.g., when the contractor signs
the contract, when the first purchase order is received, or when
the contract is signed by the City Auditor. Some simply did not
know. In at least one instance, the confusion over the contract
process directly contributed to a lapse in contract coverage. In this
instance, a department obtained a resolution from City Council to
amend an existing contract that was about to expire. However, the
department did not initiate a contract amendment, thinking that
the resolution was sufficient. As a result, the contract expired
without a contract extension or a new contract in place. The City
continued to pay on invoices submitted under the expired contract
until encumbered funds ran out.

129

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Project manager
contract files varied
from well-documented
to non-existent

We also found a wide variation in the documentation maintained

by project managers in their contract files, for those who
maintained files. Some kept a copy of the contract along with
correspondence pertaining to the contract. Some maintained only
a copy of the contract. One had a copy of the previous contract,
but not the current one. And some did not maintain any
documentation. The level of documentation maintained may
depend on the scope and complexity of the contract, and may to
some degree be a matter of personal preference. However, the
broad variance indicates the lack of any procedural guidance as to
the minimum level of documentation required to effectively
manage a contract.

General Services
Manager estimates that
about 40 percent of
contract package
submissions are
returned to the
departments due to
errors or omissions

Finally, the General Services Manager estimates that about 40

percent of contract packages submitted for review are returned to
the departments, mostly due to errors or missing information. The
Purchasing Manual allows the General Services Manager a
three-day review period. According to the General Services
Manager, reviews typically range from one to four days but may
take as long as six days when taking into account the additional
time required for corrections and resubmission. However,
corrections related to bonding issues or changes in contract terms
may take from two to three weeks to process. The delays in
processing due to minor errors or omissions are not significant,
and for the most part would not have been the difference
between contracts being executed on time, or not. However, the
two to three week delays associated with bonding issues or
changes in contract terms are significant.

Training courses do not

adequately prepare
employees for the task
of managing contracts

The City does provide a basic training course on project

management. However, the course focuses primarily on time
management skills, rather than on the legal or process-oriented
aspects of contract management. Finance also periodically
provides courses on the contract procurement process. However,
as with Contracts Online, the courses are generally higher level,
focused on definitions and processes, rather than practical
guidance. To better prepare employees for their role as project
managers, the City should develop a training regimen designed to
improve day-to-day contract management skills.

130

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Project managers
believe the level of risk
associated with vendor
services provided
without executed
contracts varies
depending on the
services

When asked about the risks associated with vendors commencing

work for the City before contracts are fully executed, the majority
of project managers described the risk as minimal to none. Indeed,
one project manager felt that the risk of delaying vendor services
was greater than the risk of the work starting before obtaining the
City Managers final approval. In general, the responses were
commensurate with the relative scope and complexity of the
contract in question. For instance, the risks associated with a longterm, city-to-vendor relationship for towing services or for routine
maintenance were viewed as relatively low risk. By contrast,
professional level services, such as veterinary care, are considered
higher risk if not formally approved by the City Manager prior to
commencement of work. Ultimately, the best solution is to
address the root cause of the process delays and put safeguards in
place to ensure that all approvals are in place prior to
commencement of services.

Project Managers
cite insufficient
planning as the
primary cause for
contracts not
executed in a timely
manner

Project managers more often than not cited insufficient planning

as the primary reason for why some contracts were not executed
in a timely manner. In some instances, project managers indicated
that they were not prepared for the significant amount of time
required to get from the initial request for procurement to the
executed contract. Some project managers identified dealing with
competing priorities as the root cause. However, we interpreted
this as falling under the general umbrella of inadequate planning.
The General Services Manager at least annually provides project
managers with a list of all contracts expiring at the end of the
calendar year and fiscal year, which one project manager
acknowledged as helpful. The General Services Manager should
continue to provide this courtesy service and work with
Information Technology to allow for project managers to access
the report as needed.

Project managers are

largely on their own in
regards to procedural
guidance

Project managers do have access to the Citys Contracts Online

feature, which provides useful templates, flowcharts, and other
general procedural guidance. However, as a citywide tool it
provides general procedural guidance only, not departmentspecific guidance, such as how to align contract needs with
department work plans and how duties are shared between
project managers and support staff. It is also limited in the area of
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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

performance-related guidance, such as expected timeframes for

completion of specific actions, timelines with key milestone dates,
or effective planning and monitoring strategies that would assist
project managers in their day-to-day duties as contract managers.
Further, none of the project managers interviewed were aware of
any department-level written procedures regarding the contract
process, e.g., when to initiate a request for procurement, how to
establish and maintain contract files, how to create and monitor
timelines for the life of a contract. As a result, project managers
are largely on their own with regard to day-to-day procedural
guidance with respect to their contract management duties. This is
a repeat finding from our Leases Audit, which noted that
department staff assigned to lease contract management lacked
the procedural guidance necessary to complete their duties. 3
Berkeley Library and
Parks, Recreation, and
Waterfront already use a
best practice for
monitoring the status of
their contracts

We did identify the following best practice during our review. The
Berkeley Library and Parks, Recreation, and Waterfront
Department both maintain their own fairly simple but effective
spreadsheet for use in tracking their various contracts. The
spreadsheets include basic contract information such as the
vendor names, program managers, and contract expiration dates.
The General Services Manager identified this type of tool as
something that all departments could benefit from.

Recommendations

The Department of Finance should:

Create contract
preparation timeline
graphics

1.1

Design two timeline graphics to visually display the length of

time project managers should expect it to take to execute
the average boilerplate contract and non-boiler plate
contract (i.e., routine vs. non-routine contracts). Identify the
full length of time from request for proposal to City Manager
approval. Include the average review times for the
departments involved with contract review to provide user
departments with a structure for their contract needs
planning. Post the timelines to Contracts Online.

Leases Audit, June 2009: http://www.cityofberkeley.info/uploadedFiles/Auditor/Level_3_-_General/2009-0602_Item_16_Leases_Audit_Conflicting_Directives_Hinder_Contract_Oversight.pdf

10

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Develop On Demand
report of expiring
contracts for project
managers to access as
needed

1.2

Continue providing semiannual reports of expiring contracts

to project managers and work with the Department of
Information Technology to convert the ad hoc query into an
On Demand report that identifies all contracts set to expire
within six months from the date of the query. Provide project
managers with access to the On Demand feature so that they
can run the report as needed.

Plan for a true contract

management system

1.3

In collaboration with the Department of Information

Technology and key contract review and approval
departments, include contract management in Enterprise
Resource Planning (ERP) needs. Work with key personnel in
the contract review and approval departments, and with
project managers who typically execute and manage a large
number of contracts, to identify critical business needs, and
methods for eliminating redundancies and streamlining the
contract preparation, review, and approval process.

The City Manager should:

Enhance City training to
include contract
planning guidance

1.4

In coordination with the Department of Finance, enhance

City training to include guidance for contract planning as part
of project management. Once training is established, obtain
feedback from training attendees and modify the training on
an ongoing basis to meet the needs of project managers.
Example training topics include:

planning for contract needs by aligning them with

department work plans

structuring contract preparation needs with citywide

approval timelines (also see recommendation 1.1)

developing simple contract tracking systems to monitor

contract timelines, expirations, and funding needs

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Establish departmental
procedures for contract
management; repeat
recommendation

City Managers
Response

1.5

Require departments to document their specific procedures

for contract preparation, oversight, and management.
Procedures should include:

planning for department specific actions, e.g., obtaining

managements approval

tracking contract status and funding needs

attending City training courses when offered, e.g.,

contract preparation and FUND$ 101

describing shared contract management responsibilities

between project managers and support staff

requiring projects managers to coordinate with and

respond to support staffs needs for contract
administration

requesting contract extensions

aligning contract needs with department work plans

using Finances contract process timelines and On

Demand report of expiring contracts for contract planning
(also see recommendations 1.1 and 1.2)

minimum level of documentation needed to effectively

manage contracts

The City Manager agreed with the recommendations. The full

response is at Appendix B.

FISCAL IMPACT
$80,498 incurred
costs for services
provided on
contracts before
they were executed

The City incurred costs of over $80,000 for services performed on

15 expenditures contracts before they were executed. This
represents a vast improvement over the results of our prior
Citywide Contract Compliance audit. Nevertheless, services
performed without an executed contract are by definition
unauthorized, and represent work done without the contract
covenants in place to protect the City from legal ramifications.
General Services diligence in securing liability insurance in all
instances did mitigate the risk to a certain degree. However, the
most effective safeguard is to ensure that all contracts are
properly executed before vendor services are authorized.
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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Reducing contract errors

will lead to citywide cost
savings

The City could save from $3,000 to $9,000 annually by reducing

the General Service Managers time spent on returning contracts
to client departments for correction and performing a secondary
review to ensure that staff made the necessary corrections. The
savings are greater when you include the amount of departmental
staff time saved on making those corrections. However, those
savings vary from department to department and are not easily
quantified. Regardless, it is a significantly better use of City
resources when staff do not spend their time making corrections
to their work.

CONCLUSION
City staff
significantly
improved their
timeliness in
securing executed
contracts

Better tools and

guidance needed to help
staff with their contract
responsibilities

Staff citywide
assisted in making
this audit a success;
thank you

Our review of citywide contracts showed vast improvement in the

Citys contract execution practices. Of 226 expenditure contracts
entered into in fiscal year 2014, all but 15, or 7 percent, were
executed timely and in place before services were rendered. The
Citys significant improvement notwithstanding, management
must address long-standing barriers to project management
efficiency and effectiveness in order to achieve full compliance.
Project managers will be in a better position to timely prepare and
execute the large number of contracts the City enters into
annually if City management provides:
More robust training and procedural guidance for staff
assigned as contract project managers and support staff.

Better tools for contract planning and monitoring.

A true contract management system that automates and

streamlines the contract preparation, review, and approval
process.

We would like to thank all City departments for their continued

cooperation during this audit. Staffs prompt and thoughtful
responses to our inquiries allowed us to gain a more complete
understanding of the challenges they face in performing their
contract related work. We appreciate managements
receptiveness to our findings and recommendations, and their
willingness to make improvements to ensure City contracts are
executed before contractors begin work to limit the Citys risk
exposure.
13

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

APPENDIX A:
Scope and Methodology
We audited new City expenditure contracts executed during fiscal year 2014, excluding
emergency and community agency contracts. We focused on determining if there were
contracts where contract work had started before the contract was signed by the City Manager.
We did this by identifying contracts where there was an invoice dated prior to contract
execution. When we found this had occurred, we reviewed contracts and project manager files,
and met with project managers, to identify the root causes. We asked the project managers
and support staff who oversee these contracts, as well as the City Attorneys Office, to identify
the significant risks to the City, if any, resulting from this practice. To gain an understanding of
City contract requirements, we reviewed City policies and procedures for contract oversight
and management, including Contracts Online; obtained information from City departments
about their specific contract practices; and met with staff responsible for contract
administration, accounts payable processing, and information systems management. We also
reviewed best practices for contract management to identify possible improvement techniques
for project managers.
Data Reliability
We assessed the reliability of Records Online data and Purchase Inventory Module (PI) data by
reviewing them for completeness. We relied on the actual contracts and invoices for specific
contract and invoice information, so we did not test contract and invoice information in these
databases for accuracy. We used Records Online data to identify all the contracts executed
during fiscal year 2014. Our testing of this database determined that the Records Online query
resulted in an incomplete list of fiscal year 2014 contracts due to a software glitch with the
Records Online query. However, because contracts are assigned contract numbers in sequential
order, we were able to identify the missing contract numbers and used the query function in
Records Online to search the database, one by one for the missing contracts. We identified all
but a very small number. For these few, we used Contract Cards on file in our office to identify
needed contract information.
We assessed the completeness of the PI data by comparing it with data in Records Online. We
determined that the contract number and purchase order information was very complete, but
not 100 percent complete. Of 226 expenditure contracts Records Online identified as executed
during fiscal year 2014, eight were not recorded in Purchase Inventory. Using other means, we
were able to identify the purchase orders in Purchase Inventory for four of the eight contracts
and added them to the PI data we had. This meant that, after adjustments, the PI data
identified 98 percent of the fiscal year 2014 contracts. We determined that the small difference
would not affect our audit findings and conclusions.

14

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Auditor Independence
We identified possible threats to our independence regarding our involvement with the
Contract Management System (CMS), and our contract registration and cosigning procedures.
Prior to starting audit work, we assessed these threats and put safeguards in place to eliminate
any actual or perceived threat. By City mandate, the City Auditor countersigns City contracts
and our office registers the agreements. Our office also serves as a CMS module leader. As
module leader, assigned audit staff have higher user rights than other City users, including the
ability to add, change, and delete contract data. To ensure our independence, we did not rely
on CMS data to support our audit findings and conclusions; and we did not assign audit staff
responsible for our contract registration services to this audit. Because the City Auditor signs
contracts after City staff complete contract execution, we did not consider her involvement as a
contract cosigner a threat to our independence for reviewing work performed by City staff prior
to submitting contracts to our office.
Standards Compliance Statement
We conducted this performance audit in accordance with generally accepted government
auditing standards. Those standards require that we plan and perform the audit to obtain
sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions
based on our audit objectives. We believe that the evidence obtained provides a reasonable
basis for our findings and conclusions based on our audit objective.

15

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Lead Dept.

Agree, Partially Agree, or Do Not Agree and Expected or

Corrective Action Plan
Actual
Implementation
Date

Status of Outstanding Audit

Recommendations and
Implementation Progress
Summary

1.1 Design two timeline graphics to

visually display the length of time
project managers should expect it to
take to execute the average
boilerplate contract and non-boiler
plate contract (i.e., routine vs. nonroutine contracts). Identify the full
length of time from request for
proposal to City Manager approval.
Include the average review times for
the departments involved with
contract review to provide user
departments with a structure for
their contract needs planning. Post
the timelines to Contracts Online.

Finance

16

Finance will create timeline graphic for a

typical boilerplate. Non-boilerplate
contracts are situational and highly
unpredictable, oftentimes involving
discussions and negotiations between the
City Attorneys office and outside counsel.
Therefore, for non-boiler plate contracts,
we will include information with the
regular timeline that contract project
managers should plan for extended
preparation time, e.g., two months longer
than the norm.

Agree

March 2016

Finding 1: The City vastly improved its performance in securing fully executed agreements before contract work commences, but barriers to full compliance
must be addressed

Findings and Recommendations

Audit Title: Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

APPENDIX B
Audit Finding, Recommendations, and Management Response Summary

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

Finance

1.3 In collaboration with the

Department of Information
Technology and key contract review
and approval departments, include
contract management in Enterprise
Resource Planning (ERP) needs.
Work with key personnel in the
contract review and approval
departments, and with project
managers who typically execute and

17

Inclusion of a modern contract

management system in an ERP is highly
desirable. We will work with Information
Technology to include a contract
management system in Enterprise
Resource Planning and work with key
personnel to identify the critical business
needs for such a system. Actual purchase

Agree

Finance will supplement dissemination of

contracts status on a biannual basis (prior
to FY-end close and CY-end close) with a
city-wide notification report.

IT will design and complete an OnDemand query. The departments will

have access to run the OD query at will.
This will enhance, reinforce, and
encourage the departments active
management of their respective
contracts.

Partially agree

Finance

1.2 Continue providing semiannual

reports of expiring contracts to
project managers and work with the
Department of Information
Technology to convert the ad hoc
query into an On Demand report
that identifies all contracts set to
expire within six months from the
date of the query. Provide project
managers with access to the On
Demand feature so that they can run
the report as needed.

Unknown

September
2015

Agree, Partially Agree, or Do Not Agree and Expected or

Corrective Action Plan
Actual
Implementation
Date

Lead Dept.

Findings and Recommendations

Status of Outstanding Audit

Recommendations and
Implementation Progress
Summary

Audit Title: Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

planning for contract needs by

aligning them with department
work plans

1.4 In coordination with the Department

of Finance, enhance City training to
include guidance for contract
planning as part of project
management. Once training is
established, obtain feedback from
training attendees and modify the
training on an ongoing basis to meet
the needs of project managers.
Example training topics include:

manage a large number of contracts,

to identify critical business needs,
and methods for eliminating
redundancies and streamlining the
contract preparation, review, and
approval process.

Findings and Recommendations

City
Managers
Office

Lead Dept.

18

The Citys training program will be

enhanced to include better contract
planning as part of project and time
management. As is standard with any City
training, feedback from attendees will be
used to continually improve the Citys
training program.

Agree

2016

Agree, Partially Agree, or Do Not Agree and Expected or

Corrective Action Plan
Actual
Implementation
Date
will depend on funding availability and
consideration of other information system
needs with a higher priority.

Status of Outstanding Audit

Recommendations and
Implementation Progress
Summary

Audit Title: Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

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Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

structuring contract
preparation needs with
citywide approval timelines
(also see recommendation 1.1)
developing simple contract
tracking systems to monitor
contract timelines, expirations,
and funding needs

planning for department

specific actions, e.g., obtaining
managements approval
tracking contract status and
funding needs
attending City training courses
when offered, e.g., contract
preparation and FUND$ 101
describing shared contract

1.5 Require departments to document

their specific procedures for
contract preparation, oversight, and
management. Procedures should
include:

Findings and Recommendations

City
Managers
Office

Lead Dept.

Agree

19

December
2015

Agree, Partially Agree, or Do Not Agree and Expected or

Corrective Action Plan
Actual
Implementation
Date

Status of Outstanding Audit

Recommendations and
Implementation Progress
Summary

Audit Title: Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

141

Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

management responsibilities
between project managers and
support staff
requiring projects managers to
coordinate with and respond
to support staffs needs for
contract administration
requesting contract extensions
aligning contract needs with
department work plans
using Finances contract
process timelines and On
Demand report of expiring
contracts for contract planning
(also see recommendations 1.1
and 1.2)
minimum level of
documentation needed to
effectively manage contracts

Findings and Recommendations

Lead Dept.

20

Agree, Partially Agree, or Do Not Agree and Expected or

Corrective Action Plan
Actual
Implementation
Date

Status of Outstanding Audit

Recommendations and
Implementation Progress
Summary

Audit Title: Most Contracts Executed Timely but Contract Project Managers Could Use Better Tools and Guidance

142

08

Berkeley City Council

CONSENT CALENDAR
October 6, 2015
To:

Honorable Mayor and Members of the City Council

From:

Councilmember Laurie Capitelli

Subject:

CITY SPONSORSHIP OF THE FOURTH ANNUAL SUNDAY

STREETS

RECOMMENDATION:
Adopt a Resolution: 1. Co-sponsor the 2015 Sunday Streets event to be held on
Sunday, October 18, 2015; 2. Give permission for use of the name of the City of
Berkeley and the Citys logo in media coverage of Sunday Streets 2014; and 3.
Acknowledge that the $30,000 FY 2016 allocation for Sunday Streets approved
in June 2015 be utilized by the organizers of the event, the Downtown Berkeley
Association and the North Shattuck Association, in association with founding
partner Livable Berkeley and program management partner Walk Oakland Bike
Oakland (WOBO).
BACKGROUND:
On October 12, 2014, more than 35,000 people came to Shattuck Avenue to
walk, skate, cycle, stroll, shop, dance to live music, do yoga, and connect with
their community and urban environment in a transformative way. For 17 blocks,
this car-traffic throughway became a public park and showcase for local
businesses and community organizations. Everyone from local businesses, nonprofits and clubs to individual artists, musicians, soccer and chess coaches used
the space creatively to engage the public, lead interactive activities, and elicit
spontaneity and discovery.
Sunday Streets is about community interaction, physical activity, and
commercial-free fun in a large-scale public space in the urban core/heart of the
city. Because of the unique no-outside-vendors aspect of Open Streets, local
Berkeley businesses have reported a 30-50% increase in sales on the day of the
event.
This year Sunday Streets will be orchestrated through a collaborative effort of the
local business districts, the Downtown Berkeley Association (DBA) and the North
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Consent Calendar, October 6, 2015

Sunday Streets 2015; page 2 of 2

Shattuck Association (NSA) in cooperation with the events founding partner,

Livable Berkeley, and a new non-profit management partnership with Walk
Oakland Bike Oakland (WOBO). Under the new structure, called East Bay Open
Streets, the groups were able to add a second open streets event in Berkeley,
along San Pablo Ave. straddling Oakland and Berkeley. Love our Neighborhood
Day was held on May 30, 2015, and will be scheduled again in 2016.
FISCAL IMPLICATIONS:
The Citys FY 2016 budget includes a $30,000 line item to subsidize the event.
Co-sponsorship does not include any additional in kind support.
CONTACT PERSON:
Laurie Capitelli, Councilmember, District 5

510-981-7150

ATTACHMENTS:
Resolution Cosponsoring Sunday Streets 2015

144

RESOLUTION NO. N.S.

CITY OF BERKELEY CO-SPONSORSHIP OF THE SUNDAY STREETS 2015
WHEREAS, the Downtown Berkeley Association and the North Shattuck Association in
cooperation with founding partner Livable Berkeley and management partner Walk
Oakland Bike Oakland (WOBO) will be producing the third annual Sunday Streets
Berkeley on October 18, 2015 along Shattuck Avenue from Rose Street to Haste Street;
and
WHEREAS, Sunday Streets promotes the Citys Climate Action goals related to transitoriented car-free communities; and
WHEREAS, Sunday Streets showcases downtown Berkeley and the North Shattuck
commercial district; and
WHEREAS, Sunday Streets Berkeley aims to close streets to automobile traffic for a day
so that residents may use the space for just about any activity other than driving.
Residents can bike, jog, dance, play and it creates a space where people get out and
connect with their community in a transformative way; and
WHEREAS, the Sunday Streets concept is being implemented in cities seeking unique
and fun ways to achieve economic, environmental, social and public health goals; and
WHEREAS, Sunday Streets Berkeley in 2012, 2013 and 2014 were exceptionally
successful events attracting tens of thousands of attendees; and
WHEREAS, co-sponsorship of this event does not infer additional benefits, monetary
support or in-kind services.
NOW THEREFORE, BE IT RESOLVED, by the Council of the City of Berkeley that the
City of Berkeley hereby co-sponsors the proposed Sunday Streets Berkeley and that
the proposed Sunday Streets Berkeley has permission to use the Citys name and logo
in the events promotional materials and signage naming the City of Berkeley as a
cosponsor solely for the purpose of the City indicating its endorsement of the event.

145

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09

Office of the City Manager

ACTION CALENDAR
October 6, 2015
(Continued from September 15, 2015)

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Michael Caplan, Economic Development Manager

Subject:

Retail Incentives in Commercial Districts

INTRODUCTION
On October 7, 2014, Council referred to the City Manager the concept of reducing or
eliminating permit fees and/or business license taxes for a set period as an incentive to
attract specific retailers and entertainment uses to the Telegraph Avenue and
Downtown. This information report provides an assessment of the proposed policy
concept in light of the business climate and trends in retail vacancy rates and a
summary of current efforts to attract those types of uses.
CURRENT SITUATION AND ITS EFFECTS
In January 2015, The Office of Economic Development (OED) produced an Information
Report updating Council on the Vacancy Rates and Sales Tax Trends in Berkeleys
Commercial Districts. This report showed a general trend towards lower rates for both
Telegraph and Downtown since 2008, despite the fact that both districts have
historically experienced higher vacancy rates than Berkeley overall. Since that report
was written, vacancy rates on Telegraph and in the Downtown have continued to
decline. The vacancy rate in the Telegraph district fell from approximately 12.7% in fall
of 2014 to approximately 9.5% in spring 2015. During the same period, the vacancy rate
in the Downtown fell from approximately 11.2% to approximately 8.2%. It is important to
note that a number of the spaces that appear vacant from the street are in buildings
currently going through rehabilitation, remodeling or entitlement processes and are not
on the market.
These positive trends reflect a variety of factors including the overall recovery of the
regional economy, the increasing desirability of the Downtowns residential and office
markets, the positive impact of Berkeleys thriving arts and cultural sector and the
marketing and economic development activities implemented by the City and its
partners in these districts.
Given the fact that vacancy rates are declining, the retail market is strengthening, and
significant new development is being planned for both Downtown and the Telegraph
area, staff does not recommend that Council initiate a new set of retail incentives at the

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

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ACTION CALENDAR
October 6, 2015

present time. While such tools can assist retail attraction efforts during periods when the
economy is weak, it is unlikely that they would have a significant effect at a time like
today when the market is strong. Staff thinks that a better strategy for current conditions
would be for OED staff to continue -- and to deepen its engagement with the
brokerage community and property owners in providing information about specific retail
concepts identified in the Council referral that the City would like to attract. OED is now
planning to convene a broker forum later this summer to discuss issues and
opportunities related to retail attraction and improvement of tenant mix in Downtown and
Telegraph districts.
BACKGROUND
Vacant storefronts can be detrimental to the overall health of a commercial district; they
can be attractors of crime and vandalism, and potentially discourage private investment
in a neighborhood. However, some retail vacancy is a feature of almost all retail
districts. The typical vacancy rate for a healthy commercial district is somewhere
between 4 and 7%. Rates at this level reflect normal mobility and turnover in the retail
market.
The City doesnt currently have targeted retail incentives. However, the Office of
Economic Development (OED) and partner agenciesincluding Visit Berkeley,
Downtown Berkeley Association, Telegraph Business Improvement District, Buy Local
Berkeley, and others are implementing a range of projects and programs to attract
retailers, fill vacant storefronts and improve the health of the Citys commercial districts.
These have involved various outreach, direct assistance, marketing and placemaking
activities including:

Targeted Retail Attraction. The Downtown Berkeley Association retains a

veteran retail attraction consultant who, working closely with OED staff and other
partners, is implementing a strategic approach to engaging prospective retailers
and connecting them with opportunities.

Assistance in Navigating City Processes. A clear and efficient permitting

process is extremely valuable to a prospective retail business. OED works with
new retail tenants whenever possible to help them productively engage the Citys
planning process. When a retail tenant is confused or needs guidance, OED and
Planning Department staff will often meet together with the client on a preapplication basis to map out their most efficient pathway to get permitted.

Marketing of Berkeley and its Commercial Districts. OED and partner

organizations are producing marketing materials, such as the Downtown Retail
Attraction Package and the recent insert in the San Francisco Business Times,
that highlight the strengths and desirability of Berkeleys various commercial
districts as business locations.

Cleaning and Hospitality Services. The cleanliness of Berkeleys commercial

districts is consistently the number one issue cited by residents and shoppers

Page 2

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Retail Incentives in Commercial Districts

ACTION CALENDAR
October 6, 2015

when asked about their local shopping patterns and preferences. It is also a
often cited by brokers as a factor as to whether they can successfully attract new
tenants to an area. Over the past several years, property-based business
improvement districts have bolstered cleaning services in the Downtown and
Telegraph and this has helped improve the curb appeal of those areas from a
retail perspective.

Events & Activities. Special events such as the recent Bay Area Book Festival
and Sundays on Telegraph attract thousands of visitors and shoppers to
Berkeleys commercial districts, increasing vitality and the attractiveness to
prospective retailers.

Of course, the ability to offer incentives, such as reducing or eliminating permit fees
and/or business license taxes for a set period, might provide a useful tool in some
circumstances to assist retail attraction efforts. However, staff doesnt recommend doing
that at the present time for a number of reasons:

New Retail Leasing is Happening Now. In the current market, retail leasing is
happening without incentives. Commercial vacancy rates are dropping and sales
tax performance is improving. The grand opening of Target Express last fall sent
a signal to other major retailers that are, more than ever before, looking for
locations in Berkeley.

The Value of Possible Incentives. For the types of major anchor businesses
identified in the referral, the cost of use permits and business license taxes pale
in comparison to other expenses such as labor and rent. As such, these
incentives would not be likely to influence location decisions. More significant
incentives, such waiver of building permit fees, are much more costly and would
only typically be used as an attraction incentive in exceptional circumstances.

Incentives Would Not Address Some Long-Term Vacancies. A number of

long-term vacancies are caused by factors that are not directly related to market
forces. Some are owned or managed by larger ownership groups or irrational
actors for whom market conditions are not the primary consideration. In these
cases, incentives would be unlikely to produce the desired results.

The Track Record of Retail Incentives is Mixed. Economic development

literature over the past ten to fifteen years has generally skewed against
incentives as an effective tool for retail attraction.1

See Peters, A., & Fisher, P. (2004). The failures of economic development
incentives. Journal of the American Planning Association, 70(1), 27-37. See also Goetz,
S. J., Partridge, M. D., Rickman, D. S., & Majumdar, S. (2011). Sharing the gains of
local economic growth: race-to-the-top versus race-to-the-bottom economic
development. Environment and Planning-Part C, 29(3), 428.

Page 3

149

Retail Incentives in Commercial Districts

ACTION CALENDAR
October 6, 2015

Going forward, staff will continue to track retail market conditions in the Downtown and
Telegraph districts and the City as a whole. If retail market conditions were to change in
the future, staff will return to Council with a renewed assessment of whether incentives
of the type proposed in the referral, or some other sort, would be warranted.
ENVIRONMENTAL SUSTAINABILITY
Berkeleys neighborhood commercial districts enable city residents to shop and dine
locally. Regardless of incentives, positive economic development activity that supports
vital retail districts can potentially reduce carbon emissions by reducing the need for
residents to travel outside their immediate neighborhood or beyond the City limits.
POSSIBLE FUTURE ACTION
None.
FISCAL IMPACTS OF POSSIBLE FUTURE ACTION
Unknown.
CONTACT PERSON
Michael Caplan, Economic Development Manager, 510-981-2490

Page 4

150

10

Office of the City Manager

ACTION CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by:

Zach Cowan, City Attorney

Subject:

Amending Berkeley Municipal Code Chapter 9.96 Regarding Point of Sale

Cell Phone Warnings in Response to District Court Order

RECOMMENDATION
Adopt first reading of an Ordinance amending Section 9.96.030.A consistent with the
order issued by the U.S. District Court in CTIA v. City of Berkeley (USDC ND CA C-152529 EMC).
FISCAL IMPACTS OF RECOMMENDATION
None. The proposed amendment would enable the City to enforce an already-adopted
ordinance. This would require staff time to enforce.
CURRENT SITUATION AND ITS EFFECTS
On May 12, 2015, the Council adopted the first reading of an ordinance requiring cell
phone retailers in Berkeley to provide a notice with every sale or lease of a cell phone
that warns customers to maintain a minimum separation between their bodies and their
cell phones. The CTIA filed suit in federal court alleging that the ordinance was
preempted and violated the First Amendment, and sought a preliminary injunction
against its enforcement.
On September 21, 2015, the court, Judge Edward Chen presiding, issued an order
enjoining the ordinance unless and until the sentence in the City notice regarding
children safety is excised from the notice. A copy of the courts order is attached.
The proposed amendment to Section 9.96.030.A complies with Judge Chens order by
deleting the referenced sentence in the required warning language.
BACKGROUND
On November 18, 2014, the Council directed staff to draft an ordinance that would
require cell phone retailers in Berkeley to provide a notice with every sale or lease of a
cell phone that warns customers to maintain a minimum separation between their
bodies and their cell phones. Staff returned with the ordinance (now codified as Chapter
9.96 of the Berkeley Municipal Code) on May 12, 2015, and the Council adopted the
first reading at that time.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-Mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

151

Amending Berkeley Municipal Code Chapter 9.96 Regarding Point of Sale

Cell Phone Warnings in Response to District Court Order
Page 2

Action Calendar
October 6, 2015

ENVIRONMENTAL SUSTAINABILITY
There are no identifiable environmental effects or opportunities associated with the
proposed ordinance.
RATIONALE FOR RECOMMENDATION
The proposed amendment responds to a court order. See Attachment 1.
ALTERNATIVE ACTIONS CONSIDERED
N/A
CONTACT PERSON
Zach Cowan, City Attorney (510) 981-6998
Attachments:
1: Order Granting in Part and Denying in Part Plaintiffs Motion for Preliminary
Injunction, CTIA v. City of Berkeley (USDC ND CA C-15-2529 EMC).
2: Ordinance Amending Berkeley Municipal Code Section 9.96.030.A Concerning
Point of Sale Notice Warning for Cell Phones.

152

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page1 of 35

1
2
3
4
5

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

7
8

CTIA THE WIRELESS ASSOCIATION,

11
For the Northern District of California

United States District Court

10

Plaintiff,
v.
THE CITY OF BERKELEY, CALIFORNIA,
et al.,

12
13

No. C-15-2529 EMC

Defendants.
___________________________________/

ORDER GRANTING IN PART AND

DENYING IN PART PLAINTIFFS
MOTION FOR PRELIMINARY
INJUNCTION; AND GRANTING
NRDCS MOTION FOR LEAVE TO
FILE AMICUS BRIEF
(Docket Nos. 4, 36)

14
15
16

As alleged in its complaint, Plaintiff CTIA The Wireless Association (CTIA) is a not-

17

for-profit corporation that represents all sectors of the wireless industry, including but not limited

18

to manufacturers of cell phones and accessories, providers of wireless services, and sellers of

19

wireless services, handsets, and accessories. Compl. 18. Included among CTIAs members are

20

cell phone retailers. See Compl. 19. CTIA has filed suit against the City of Berkeley and its City

21

Manager in her official capacity (collectively City or Berkeley), challenging a City ordinance

22

that requires cell phone retailers to provide a certain notice regarding radiofrequency (RF) energy

23

emitted by cell phones to any customer who buys or leases a cell phone. According to CTIA, the

24

ordinance is preempted by federal law and further violates the First Amendment. Currently pending

25

before the Court is CTIAs motion for a preliminary injunction in which it seeks to enjoin

26

enforcement of the ordinance. Having considered the parties briefs and accompanying submissions,

27
28

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page2 of 35

as well as the oral argument of counsel, the Court hereby GRANTS in part and DENIES in part the

motion.1

3
4
5

A.

City Ordinance
RF energy is a form of electromagnetic radiation that is emitted by cell phones. In re

Reassessment of FCC Radiofrequency Exposure Limits & Policies, 28 F.C.C. Rcd. 3498, 3585 (Mar.

29, 2013) [hereinafter 2013 FCC Reassessment]. The City ordinance at issue concerns RF energy

emitted by cell phones.

10

The ordinance at issue is found in Chapter 9.96 of the Berkeley Municipal Code. It provides
in relevant part as follows:

11
For the Northern District of California

FACTUAL & PROCEDURAL BACKGROUND

United States District Court

I.

A.

12
13

A Cell phone retailer shall provide to each customer who buys

or leases a Cell phone a notice containing the following
language:
The City of Berkeley requires that you be provided the
following notice:

14
To assure safety, the Federal Government requires that
cell phones meet radio frequency (RF) exposure
guidelines. If you carry or use your phone in a pants or
shirt pocket or tucked into a bra when the phone is ON
and connected to a wireless network, you may exceed
the federal guidelines for exposure to RF radiation.
This potential risk is greater for children. Refer to the
instructions in your phone or user manual for
information about how to use your phone safely.

15
16
17
18
19
B.
20
21
22
23
24

The notice required by this Section shall either be provided to

each customer who buys or leases a Cell phone or shall be
prominently displayed at any point of sale where Cell phones
are purchased or leased. If provided to the customer, the notice
shall include the Citys logo, shall be printed on paper that is
no less than 5 inches by 8 inches in size, and shall be printed in
no smaller than a 18-point font. The paper on which the notice
is printed may contain other information in the discretion of the
Cell phone retailer, as long as that information is distinct from
the notice language required by subdivision (A) of this Section.
If prominently displayed at a point of sale, the notice shall

25
26
27
28

The National Resources Defense Council (NRDC) has filed a motion for leave to file an
amicus brief in conjunction with the preliminary injunction proceedings. This motion is hereby
GRANTED. CTIA has failed to show that it would be prejudiced by the Courts consideration of
the brief, particularly because CTIA had sufficient time to submit a proposed opposition to NRDCs
proposed amicus brief.

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page3 of 35

include the Citys logo, be printed on a poster no less than

8-1/2 by 11 inches in size, and shall be printed in no small than
a 28-point font. The City shall make its logo available to be
incorporated in such notices.

2
3
4
5

Berkeley Mun. Code 9.96.030.

The stated findings and purpose behind the notice requirement are as follows:

A.

Requirements for the testing of cell phones were established by

the federal government [i.e., the Federal Communications
Commission (FCC)] in 1996.

B.

These requirements established Specific Absorption Rates

(SAR[2]) for cell phones.[3]

C.

The protocols for testing the SAR for cell phones carried on a
persons body assumed that they would be carried a small
distance away from the body, e.g., in a holster or belt clip,
which was the common practice at that time. Testing of cell
phones under these protocols has generally been conducted
based on an assumed separation of 10-15 millimeters.

D.

To protect the safety of their consumers, manufacturers

recommend that their cell phones be carried away from the
body, or be used in conjunction with hands-free devices.

E.

Consumers are not generally aware of these safety

recommendations.

F.

Currently, it is much more common for cell phones to be

carried in pockets or other locations rather than holsters or belt
clips, resulting in much smaller separation distances than the
safety recommendations specify.

G.

Some consumers may change their behavior to better protect

themselves and their children if they were aware of these safety
recommendations.

H.

While the disclosures and warnings that accompany cell

phones generally advise consumers not to wear them against
their bodies, e.g., in pockets, waistbands, etc., these disclosures
and warnings are often buried in fine print, are not written in
easily understood language, or are accessible only by looking
for the information on the device itself.

7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

SAR is a measure of the amount of RF energy absorbed by the body from cell phones.
CTIA The Wireless Assn v. City & County of San Francisco, 827 F. Supp. 2d 1054, 1056 (N.D.
Cal. 2011) (Alsup, J.).
3

See 47 C.F.R. 2.1093 (setting RF energy exposure limits).

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page4 of 35

I.

The purpose of this Chapter is to assure that consumers have

the information they need to make their own choices about the
extent and nature of their exposure to radio frequency
radiation.

3
4

Berkeley Mun. Code 9.96.010.

5
6

phones. Data was collected from 459 Berkeley registered voters. See Jensen Decl. 6. Seventy

percent of those surveyed were not aware that the governments radiation tests to assure the safety

of cell phones assume that a cell phone would not be carried against your body, but would instead be

held at least 1- to 15 millimeters from your body. Jensen Decl., Ex. A (survey and results).

10

B.

11
For the Northern District of California

United States District Court

Prior to issuing the ordinance, the City conducted a telephone survey on the topic of cell

FCC Pronouncements
As indicated by the above, the FCC has set RF energy exposure standards for cell phones.

12

The present RF energy exposure limits were established in 1996. See generally FCC Consumer

13

Guide, Wireless Devices and Health Concerns, available at

14

https://www.fcc.gov/guides/wireless-devices-and-health-concerns (last visited September 17, 2015)

15

[hereinafter FCC Consumer Guide]. This was done pursuant to a provision in the

16

Telecommunications Act of 1996 (TCA) that instructed the agency to prescribe and make

17

effective rules regarding the environmental effects of radio frequency emissions. 104 P.L. 104

18

(1996).

19
20

The FCC has also issued some pronouncements regarding RF energy emission and cell
phones, three of which are discussed briefly below.

21

1.

22

First, as CTIA alleges in its complaint,

23
24
25

FCC KDB Guidelines

[t]he FCCs Office of Engineering and Technology Knowledge

Database (KDB) advises cell phone manufacturers [as opposed to
cell phone retailers] to include in their user manual a description of
how the user can operate the phone under the same conditions for
which its SAR was measured. See FCC KDB, No. 447498, General
RF Exposure Guidelines, 4.2.2(4).

26
27

Compl. 75; see also 2013 FCC Reassessment, 28 F.C.C. Rcd. 3498, 3587 (stating that

28

[m]anufacturers have been encouraged since 2001 to include information in device manuals to

156

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page5 of 35

make consumers aware of the need to maintain the body-worn distance by using appropriate

accessories if they want to ensure that their actual exposure does not exceed the SAR measurement

obtained during testing).

The relevant guideline from the FCCs KDB Office provides as follows:

Specific information must be included in the operating manuals to

enable users to select body-worn accessories that meet the minimum
test separation distance requirements. Users must be fully informed of
the operating requirements and restrictions, to the extent that the
typical user can easily understand the information, to acquire the
required body-worn accessories to maintain compliance. Instructions
on how to place and orient a device in body-worn accessories, in
accordance with the test results, should also be included in the user
instructions. All supported body-worn accessory operating
configurations must be clearly disclosed to users through conspicuous
instructions in the user guide and user manual to ensure unsupported
operations are avoided. . . .

6
7
8
9

11
For the Northern District of California

United States District Court

10

12

FCC KDB, No. 447498, General RF Exposure Guidelines, 4.2.2(4), available at

13

https://apps.fcc.gov/oetcf/kdb/forms/FTSSearchResultPage.cfm?switch=P&id=20676 (last visited

14

September 17, 2015).

15

2.

16

The FCC currently has a FCC Consumer Guide regarding wireless devices and health

FCC Consumer Guide

17

concerns. In the FCC Consumer Guide, the agency states, inter alia, as follows:

18

Several US government agencies and international organizations work cooperatively to

19

monitor research on the health effects of RF exposure. According to the FDA and the World

20

Health Organization (WHO), among other organizations, to date, the weight of scientific

21

evidence has not effectively linked exposure to radio frequency energy from mobile devices

22

with any known health problems. FCC Consumer Guide.

23

Some health and safety interest groups have interpreted certain reports to suggest that

24

wireless device use may be linked to cancer and other illnesses, posing potentially greater

25

risks for children than adults. While these assertions have gained increased public attention,

26

currently no scientific evidence establishes a causal link between wireless device use and

27

cancer or other illnesses. Those evaluating the potential risks of using wireless devices agree

28

that more and longer-term studies should explore whether there is a better basis for RF safety

157

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page6 of 35

standards than is currently used. The FCC closely monitors all of these study results.

However, at this time, there is no basis on which to establish a different safety threshold than

our current requirements. Id.

For the Northern District of California

United States District Court

Even though no scientific evidence currently establishes a definite link between wireless

device use and cancer or other illnesses, and even though all cell phones must meet

established federal standards for exposure to RF energy, some consumers are skeptical of the

science and/or the analysis that underlies the FCCs RF exposure guidelines. Accordingly,

some parties recommend taking measures to further reduce exposure to RF energy. The

FCC does not endorse the need for these practices, but provides information on some

10

simple steps that you can take to reduce your exposure to RF energy from cell phones. For

11

example, wireless devices only emit RF energy when you are using them and, the closer the

12

device is to you, the more energy you will absorb. Id. (emphasis in original).

13

Some parties recommend that you consider the reported SAR value of wireless devices.

14

However, comparing the SAR of different devices may be misleading. First, the actual SAR

15

varies considerably depending upon the conditions of use. The SAR value used for FCC

16

approval does not account for the multitude of measurements taken during the testing.

17

Moreover, cell phones constantly vary their power to operate at the minimum power

18

necessary for communications; operation at maximum power occurs infrequently. Second,

19

the reported highest SAR values of wireless devices do not necessarily indicate that a user is

20

exposed to more or less RF energy from one cell phone than from another during normal use

21

(see our guide on SAR and cell phones). Third, the variation in SAR from one mobile device

22

to the next is relatively small compared to the reduction that can be achieved by the measures

23

described above. Consumers should remember that all wireless devices are certified to meet

24

the FCC maximum SAR standards, which incorporate a considerable safety margin. Id.

25

3.

26

Finally, in 2013, the FCC issued its Reassessment. See generally 2013 FCC Reassessment,

27

2013 FCC Reassessment

28 F.C.C. Rcd. 3498. One of the components of the Reassessment was a Notice of Inquiry,

28

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page7 of 35

request[ing] comment to determine whether our RF exposure limits and policies need to be

reassessed. Id. at 3500.

We adopted our present exposure limits in 1996, based on guidance

from federal safety, health, and environmental agencies using
recommendations published separately by the National Council on
Radiation Protection and Measurements (NCRP) and the Institute of
Electrical and Electronics Engineers, Inc. (IEEE). Since 1996, the
International Commission on Non-Ionizing Radiation Protection
(ICNIRP) has developed a recommendation supported by the World
Health Organization (WHO), and the IEEE has revised its
recommendations several times, while the NCRP has continued to
support its recommendation as we use it in our current rules. In the
Inquiry, we ask whether our exposure limits remain appropriate given
the differences in the various recommendations that have developed
and recognizing additional progress in research subsequent to the
adoption of our existing exposure limits.

4
5
6
7
8
9

11
For the Northern District of California

United States District Court

10
Id. at 3501.

12
13

The FCC included the following comments in its Reassessment:

Since the Commission is not a health and safety agency, we defer to other organizations and

14

agencies with respect to interpreting the biological research necessary to determine what

15

levels are safe. As such, the Commission invites health and safety agencies and the public to

16

comment on the propriety of our general present limits and whether additional precautions

17

may be appropriate in some cases, for example with respect to children. We recognize our

18

responsibility to both protect the public from established adverse effects due to exposure to

19

RF energy and allow industry to provide telecommunications services to the public in the

20

most efficient and practical manner possible. In the Inquiry we ask whether any

21

precautionary action would be either useful or counterproductive, given that there is a lack

22

of scientific consensus about the possibility of adverse health effects at exposure levels at or

23

below our existing limits. Further, if any action is found to be useful, we inquire whether it

24

could be efficient and practical. Id. at 3501-02.

25

In the Inquiry we ask questions about several other issues related to public information,

26

precautionary measures, and evaluation procedures. Specifically, we seek comment on the

27

feasibility of evaluating portable RF sources without a separation distance when worn on the

28

body to ensure compliance with our limits under present-day usage conditions. We ask

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page8 of 35

whether the Commission should consistently require either disclosure of the maximum SAR

value or other more reliable exposure data in a standard format perhaps in manuals, at

point-of-sale, or on a website. Id. at 3502.

For the Northern District of California

United States District Court

The Commission has a responsibility to provide a proper balance between the need to

protect the public and workers from exposure to potentially harmful RF electromagnetic

fields and the requirement that industry be allowed to provide telecommunications services

to the public in the most efficient and practical manner possible. The intent of our exposure

limits is to provide a cap that both protects the public based on scientific consensus and

allows for efficient and practical implementation of wireless services. The present

10

Commission exposure limit is a bright-line rule. That is, so long as exposure levels are

11

below a specified limit value, there is no requirement to further reduce exposure. The limit

12

is readily justified when it is based on known adverse health effects having a well-defined

13

threshold, and the limit includes prudent additional safety factors (e.g., setting the limit

14

significantly below the threshold where known adverse health effects may begin to occur).

15

Our current RF exposure guidelines are an example of such regulation, including a

16

significant safety factor, whereby the exposure limits are set at a level on the order of 50

17

times below the level at which adverse biological effects have been observed in laboratory

18

animals as a result of tissue heating resulting from RF exposure. This safety factor can

19

well accommodate a variety of variables such as different physical characteristics and

20

individual sensitivities and even the potential for exposures to occur in excess of our limits

21

without posing a health hazard to humans.4 Id. at 3582.

22
23

Despite this conservative bright-line limit, there has been discussion of going even further
to guard against the possibility of risks from non-thermal biological effects, even though

24
25
26
27
28

Some contend that RF energy can have both thermal biological effects and nonthermal
biological effects. See, e.g., Miller Decl. 7, 10-14 (noting that RF radiation is non-ionizing
radiation, that [n]on-ionizing radiation can harm through thermal effects, usually only in high
dosage, and that [t]here is an increasingly clear body of evidence that non-ionizing radiation can
harm through non-thermal effects as well, including cancer; adding that the evidence indicates that
RF fields are not just a possible human carcinogen but a probable human carcinogen). The safety
factor built in by the FCC seems to be addressed to the thermal biological effects only.

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page9 of 35

such risks have not been established by scientific research. As such, some parties have

suggested measures of prudent avoidance undertaking only those avoidance activities

which carry modest costs. Id. at 3582-83 (emphasis added).

For the Northern District of California

United States District Court

Given the complexity of the information on research regarding non-thermal biological

effects, taking extra precautions in this area may fundamentally be qualitative and may not

be well-served by the adoption of lower specific exposure limits without any known,

underlying biological mechanism. Additionally, adoption of extra precautionary measures

may have the unintended consequence of opposition to progress and the refusal of

innovation, ever greater bureaucracy, . . . [and] increased anxiety in the population.

10

Nevertheless, we invite comment as to whether precautionary measures may be appropriate

11

for certain locations which would not affect the enforceability of our existing exposure

12

limits, as well as any analytical justification for such measures. Id. at 3583.

13

We significantly note that extra precautionary efforts by national authorities to reduce

14

exposure below recognized scientifically-based limits is considered by the WHO to be

15

unnecessary but acceptable so long as such efforts do not undermine exposure limits based

16

on known adverse effects. Along these lines, we note that although the Commission supplies

17

information to consumers on methods to reduce exposure from cell phones, it has also stated

18

that it does not endorse the need for nor set a target value for exposure reduction, and we

19

seek comment on whether these policies are appropriate. We also observe that the FDA has

20

stated that, available scientific evidence including World Health Organization (WHO)

21

findings released May 17, 2010 shows no increased health risk due to radiofrequency (RF)

22

energy, a form of electromagnetic radiation that is emitted by cell phones. At the same

23

time, the FDA has stated that [a]lthough the existing scientific data do not justify FDA

24

regulatory actions, FDA has urged the cell phone industry to take a number of steps,

25

including ... [d]esign[ing] cell phones in a way that minimizes any RF exposure to the user.

26

We seek information on other similar hortatory efforts and comment on the utility and

27

propriety of such messaging as part of this Commissions regulatory regime. Id. at 3584-

28

85.

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page10 of 35

For the Northern District of California

United States District Court

Commission calculations similar to those in Appendix D suggest that some devices may not

be compliant with our exposure limits without the use of some spacer to maintain a

separation distance when body-worn, although this conclusion is not verifiable for individual

devices since a test without a spacer has not been routinely performed during the body-worn

testing for equipment authorization. Yet, we have no evidence that this poses any significant

health risk. Commission rules specify a pass/fail criterion for SAR evaluation and equipment

authorization. However, exceeding the SAR limit does not necessarily imply unsafe

operation, nor do lower SAR quantities imply safer operation. The limits were set with a

large safety factor, to be well below a threshold for unacceptable rises in tissue temperature.

10

As a result, exposure well above the specified SAR limit should not create an unsafe

11

condition. We note that, even if a device is tested without a spacer, there are already certain

12

separations built into the SAR test setup, such as the thickness of the mannequin shell, the

13

thickness of the device exterior case, etc., so we seek comment on the implementation of

14

evaluation procedures without a spacer for the body-worn testing configuration. We also

15

realize that SAR measurements are performed while the device is operating at its maximum

16

capable power, so that given typical operating conditions, the SAR of the device during

17

normal use would be less than tested. In sum, using a device against the body without a

18

spacer will generally result in actual SAR below the maximum SAR tested; moreover, a use

19

that possibly results in non-compliance with the SAR limit should not be viewed with

20

significantly greater concern than compliant use. Id. at 3588.

21
22
23

II.
A.

DISCUSSION

Legal Standard
A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

24

the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

25

balance of equities tips in his favor, and that an injunction is in the public interest. Network

26

Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137, 1144 (9th Cir. 2011) (quoting Winter v.

27

Natural Res. Defense Council, Inc., 555 U.S. 7 (2008) (rejecting the position that, when a plaintiff

28

demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered

10

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page11 of 35

based only on a possibility of irreparable harm)). The Ninth Circuit has held that the serious

questions approach survives Winter when applied as part of the four-element Winter test. In other

words, serious questions going to the merits and a hardship balance that tips sharply toward the

plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test

are also met. See Alliance For The Wild Rockies v. Cottrell, 632 F.3d 1127, 1132 (9th Cir. 2011).

B.

For the Northern District of California

United States District Court

Likelihood of Success on the Merits

As noted above, the thrust of CTIAs complaint is twofold: (1) the Berkeley ordinance is

preempted by federal law and (2) the ordinance violates the First Amendment. Thus, the Court must

evaluate the likelihood of success as to each contention.

10

1.

11

The specific preemption argument raised by CTIA is conflict preemption.5 Conflict

12

preemption is implicit preemption of state law that occurs where there is an actual conflict between

13

state and federal law. Conflict preemption arises when [1] compliance with both federal and state

14

regulations is a physical impossibility, . . . or [2] when state law stands as an obstacle to the

15

accomplishment and execution of the full purposes and objectives of Congress. McClellan v. I-

16

Flow Corp., 776 F.3d 1035, 1040 (9th Cir. 2015).

17

Preemption

Here, CTIA puts at issue only obstacle preemption, not impossibility preemption. Under

18

Supreme Court law, [w]hat is a sufficient obstacle is a matter of judgment, to be informed by

19

examining the federal statute as a whole and identifying its purpose and intended effects. Crosby v.

20

Natl Foreign Trade Council, 530 U.S. 363, 373 (2000). If the purpose of the [federal] act cannot

21

otherwise be accomplished if its operation within its chosen field must be frustrated and its

22

provisions be refused their natural effect the state law must yield to the regulation of Congress

23

within the sphere of its delegated power. Id.

24
25

In the case at bar, the federal statute at issue is the TCA, which [inter alia] directed the FCC
to make effective rules regarding the environmental effects of [RF] emissions within 180 days of

26
27
28

CTIA has claimed only conflict preemption and not other kinds of preemption such as e.g.,
field preemption. See, e.g., Reply at 12-13 (arguing that the City challenges a field preemption
argument that CTIA does not raise) (emphasis in original).

11

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the TCAs enactment [in 1996]. Farina, 625 F.3d at 106; see also 47 C.F.R. 2.1093 (setting

exposure limits). CTIA argues that the purposes underlying the statute are twofold: (1) to achieve a

balance between the need to protect the publics health and safety and the goal of providing an

efficient and practical telecommunications services for the publics benefit and (2) to ensure

nationwide uniformity as to this balance. In support of this argument, CTIA relies on the Third

Circuits decision Farina v. Nokia, Inc., 625 F.3d 97 (3d Cir. 2010).

For the Northern District of California

United States District Court

The Court agrees with CTIA that Farina is an instructive case with respect to the purposes

underlying the above TCA provision. In Farina, the plaintiff sued on the ground that cell phones,

as currently manufactured, are unsafe to be operated without headsets because the customary manner

10

in which they are used with the user holding the phone so that the antenna is positioned next to his

11

head exposes the user to dangerous amounts of radio frequency (RF) radiation. Id. at 104. The

12

Third Circuit held that the plaintiffs lawsuit was subject to obstacle preemption. The court noted

13

first that, although [the plaintiff] disavow[ed] any challenge to the FCCs RF standards, that is the

14

essence of his complaint. . . . In order for [the plaintiff] to succeed, he necessarily must establish that

15

cell phones abiding by the FCCs SAR guidelines are unsafe to operate without a headset. Id. at

16

122. The court then concluded that there was obstacle preemption, particularly because regulatory

17

situations in which an agency is required to strike a balance between competing statutory objectives

18

lend themselves to a finding of conflict preemption. Id. at 123.

19
20
21
22

The reason why state law conflicts with federal law in these balancing
situations is plain. When Congress charges an agency with balancing
competing objectives, it intends the agency to use its reasoned
judgment to weigh the relevant considerations and determine how best
to prioritize between these objectives. Allowing state law to impose a
different standard permits a re-balancing of those considerations. A
state-law standard that is more protective of one objective may result
in a standard that is less protective of others.

23
24

Id. The FCC was tasked with a balancing act not only to protect[] the health and safety of the

25

public, but also [to] ensur[e] the rapid development of an efficient and uniform network, one that

26

provides effective and widely accessible service at a reasonable cost. Id. at 125. Were the FCCs

27

standards to constitute only a regulatory floor upon which state law can build, juries could re-

28

balance the FCCs statutory objectives and inhibit the provision of quality nationwide service. Id.

12

164

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page13 of 35

1
2

Moreover, in Farina, the Third Circuit also stated that uniformity was one of the purposes
underlying the TCA:

The wireless network is an inherently national system. In order to

ensure the network functions nationwide and to preserve the balance
between the FCCs competing regulatory objectives, both Congress
and the FCC recognized uniformity as an essential element of an
efficient wireless network. Subjecting the wireless network to a
patchwork of state standards would disrupt that uniformity and place
additional burdens on industry and the network itself.

4
5
6
7
8

For the Northern District of California

United States District Court

Id. at 126.
Finally, as noted in Farina, the legislative history for the TCA, which instructed the FCC to
to prescribe and make effective rules regarding the environmental effects of radio frequency

10

emissions, 104 P.L. 104 (1996) (discussing 704), includes a House Report that also indicates

11

uniformity is an important goal. The House Report states, inter alia:

12

The Committee finds that current State and local requirements, siting
and zoning decisions by non-federal units of government, have created
an inconsistent and, at times, conflicting patchwork of requirements
which will inhibit the deployment of Personal Communications
Services (PCS) as well as the rebuilding of a digital technology-based
cellular telecommunications network. The Committee believes it is in
the national interest that uniform, consistent requirements, with
adequate safeguards of the public health and safety, be established as
soon as possible. Such requirements will ensure an appropriate
balance in policy and will speed deployment and the availability of
competitive wireless telecommunications services which ultimately
will provide consumers with lower costs as well as with a greater
range and options for such services.

13
14
15
16
17
18
19
20

H.R. Rep. No. 104-204, at 94 (1996).6

But even though Farina persuasively identifies the purposes underlying the TCA provision

21

at issue, the limited disclosure mandated by the Berkeley ordinance does not, with one exception,

22

impose an obstacle to those purposes. As noted above, the notice required by the City ordinance

23

states as follows:

24
25
6

26
27
28

The Court notes, however, that statement in the House Report is not clearly targeted at the
requirement that the agency make rules regarding RF energy emissions. This is because 704 of the
TCA concerned not only this directive but also another i.e., that the FCC prescribe a national
policy for the siting of commercial mobile radio services facilities. H.R. Rep. No. 104-204, at 94
(also stating that [t]he siting of facilities cannot be denied on the basis of Radio Frequency (RF)
emission levels which are in compliance with the Commission RF emission regulated levels).

13

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page14 of 35

The City of Berkeley requires that you be provided the following

notice:

2
3
4
5

To assure safety, the Federal Government requires that cell phones

meet radio frequency (RF) exposure guidelines. If you carry or use
your phone in a pants or shirt pocket or tucked into a bra when the
phone is ON and connected to a wireless network, you may exceed the
federal guidelines for exposure to RF radiation. This potential risk is
greater for children. Refer to the instructions in your phone or user
manual for information about how to use your phone safely.

For the Northern District of California

United States District Court

6
7

Berkeley Mun. Code 9.96.030(A). This disclosure, for the most part, simply refers consumers to

the fact that there are FCC standards on RF energy exposure standards which assume a minimum

spacing of the cell phone away from the body and advises consumers to refer to their manuals

10

regarding maintenance of such spacing. The disclosure mandated by the Berkeley ordinance is

11

consistent with the FCCs statements and testing procedures regarding spacing. See, e.g., FCC

12

Consumer Guide (advising on some simple steps that you can take to reduce your exposure to RF

13

energy from cell phones[;] [f]or example, wireless devices only emit RF energy when you are using

14

them and, the closer the device is to you, the more energy you will absorb); 2013 FCC

15

Reassessment, 28 F.C.C. Rcd. at 3588 (stating that Commission calculations . . . suggest that some

16

devices may not be compliant with our exposure limits without the use of some spacer to maintain a

17

separation distance when body-worn, although this conclusion is not verifiable for individual

18

devices since a test without a spacer has not been routinely performed during the body-worn testing

19

for equipment authorization). It is also consistent with the FCCs own requirement that cell phone

20

manufacturers disclose to consumers information and advice about spacing. See FCC KDB, No.

21

447498, General RF Exposure Guidelines, 4.2.2(4). Thus, the ordinance does not ban something

22

the FCC authorizes or mandates. And CTIA has failed to point to any FCC pronouncement

23

suggesting that the agency has any objection to warning consumers about maintaining spacing

24

between the body and a cell phone. Moreover, the City ordinance, because it is consistent with FCC

25

pronouncements and directives, does not threaten national uniformity.

26

There is, however, one portion of the notice required by the City ordinance that is subject to

27

obstacle preemption namely, the sentence This potential risk is greater for children. Berkeley

28

Mun. Code 9.96.030(A). Notably, this sentence does not say that the potential risk may be greater

14

166

For the Northern District of California

United States District Court

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page15 of 35

for children; rather, the sentence states that the potential risk is greater. But whether the potential

risk is, in fact, greater for children is a matter of scientific debate. The City has taken the position in

this lawsuit that its notice is simply designed to reinforce a message that the FCC already requires

and make consumers aware of FCC instructions and mandates, see, e.g., Oppn at 1, 4, but the FCC

has never made any pronouncement that there is a greater potential risk for children, and, certainly,

the FCC has not imposed different RF energy exposure limits that are applicable to children

specifically. At most, the FCC has taken note that there is a scientific debate about whether children

are potentially at greater risk. See, e.g., FCC Consumer Guide (Some health and safety interest

groups have interpreted certain reports to suggest that wireless device use may be linked to cancer

10

and other illnesses, posing potentially greater risks for children than adults. While these assertions

11

have gained increased public attention, currently no scientific evidence establishes a causal link

12

between wireless device use and cancer or other illnesses.); 2013 FCC Reassessment, 28 F.C.C.

13

Rcd. at 3501 ([T]he Commission invites health and safety agencies and the public to comment on

14

the propriety of our general present limits and whether additional precautions may be appropriate in

15

some cases, for example with respect to children.). Importantly, however, the FCC has not

16

imposed different exposure limits for children nor does it mandate special warnings regarding

17

childrens exposure to RF radiation from cell phones. Thus, the content of the sentence that the

18

potential risk is indeed greater for children compared to adults threatens to upset the balance struck

19

by the FCC between encouraging commercial development of all phones and public safety, because

20

the Berkeley warning as worded could materially deter sales on an assumption about safety risks

21

which the FCC has refused to adopt or endorse.7

22
23
7

24
25
26
27
28

At the hearing, the City argued that there is a greater potential risk because of behavioral
differences between children and adults. See Cortesi Decl. 5-8 (testifying, inter alia, that children
are heavy users of cell phones, that they often sleep with their phones on or next to their beds, that
they often text which leads to them keeping phones close to their bodies, etc.). The City contends
that CTIA has done nothing to refute the evidence submitted by the City on the behavioral
differences, and thus the evidence of record establishes that the potential risk is greater. This
argument, however, has little merit in light of the FCC evidence cited above, which indicates that at
most there is a scientific debate regarding the risk to children. Moreover, the wording of the notice
suggests to the general public that the danger to children arises from their inherent biological
susceptibility to RF radiation, not behavioral susceptibility.

15

167

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page16 of 35

Accordingly, although CTIA has not demonstrated a likelihood of success or even serious

question on the merits in its preemption challenge to the main portion of the notice, it has

established a likelihood of success on its claim that the warning about children is preempted.

2.

Having determined that the required statement, This potential risk is greater for children, is

likely preempted by federal law, the Court now addresses CTIAs likelihood of success with respect

to its First Amendment challenge to the remainder of the notice.8

For the Northern District of California

United States District Court

First Amendment

a.

Level of Scrutiny

With respect to CTIAs First Amendment claim, the Court must first determine what First

10

Amendment test should be used to evaluate the ordinance at issue. CTIA contends that strict

11

scrutiny must be applied because the ordinance is neither content nor viewpoint neutral. See Reed v.

12

Town of Gilbert, 135 S. Ct. 2218, 2228, 2230 (2015) (stating that strict scrutiny applies either when

13

a law is content based on its face or when the purpose and justification for the law are content

14

based; adding that [g]overnment discrimination among viewpoints . . . is a more blatant and

15

egregious form of content discrimination). But in making this argument, CTIA completely

16

ignores the fact that the speech rights at issue here are its members commercial speech rights. See

17

Hunt v. City of L.A., 638 F.3d 703, 715 (9th Cir. 2011) (stating that [c]ommercial speech is defined

18

as speech that does no more than propose a commercial transaction; strong support that the

19

speech should be characterized as commercial speech is found where the speech is an advertisement,

20

the speech refers to a particular product, and the speaker has an economic motivation). The

21

Supreme Court has clearly made a distinction between commercial speech and noncommercial

22

speech, see, e.g., Central Hudson Gas & Elec. Corp. v. Pub. Serv. Commn, 447 U.S. 557, 562-63

23
8

24
25
26
27
28

The Court shall evaluate the ordinance as if the sentence regarding children were excised
from the text. This approach is appropriate in light of Berkeley Municipal Code 1.01.100 which,
in effect, allows for severance. See Berkeley Mun. Code 1.01.100 (If any section, subsection,
sentence, clause or phrase of this code is for any reason held to be invalid or unconstitutional, such
decision shall not affect the validity of the remaining portions of this code. The council hereby
declares that it would have passed this code, and each section, subsection, sentence, clause and
phrase thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses
or phrases had been declared invalid or unconstitutional, and if for any reason this code should be
declared invalid or unconstitutional, then the original ordinance or ordinances shall be in full force
and effect.).

16

168

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page17 of 35

(1980) (stating that [t]he Constitution . . . accords a lesser protection to commercial speech than to

other constitutionally guaranteed expression); see also Natl Assn of Mfrs. v. SEC, No. 13-5252,

2015 U.S. App. LEXIS 14455, at *75-76 (D.C. Cir. Aug. 18, 2015) (noting that, as the Supreme

Court has emphasized, the starting premise in all commercial speech cases is the same: the First

Amendment values commercial speech for different reasons than non-commercial speech), and

nothing in its recent opinions, including Reed, even comes close to suggesting that that well-

established distinction is no longer valid.9

8
9

CTIA contends that, even if the commercial speech rubric is applied, the ordinance should be
subject to at least intermediate scrutiny, pursuant to Central Hudson:
If the communication is neither misleading nor related to
unlawful activity, . . . [t]he State must assert a substantial interest to be
achieved by restrictions on commercial speech. Moreover, the
regulatory technique must be in proportion to that interest. The
limitation on expression must be designed carefully to achieve the
States goal. Compliance with this requirement may be measured by
two criteria. First, the restriction must directly advance the state
interest involved. . . . . Second, if the governmental interest could be
served as well by a more limited restriction on commercial speech, the
excessive restrictions cannot survive.

11
For the Northern District of California

United States District Court

10

12
13
14
15
16

Central Hudson, 447 U.S. at 564. But as indicated by the above language, Central Hudson was

17

addressing restrictions on commercial speech. Here, the Court is not confronted with any

18

restrictions on CTIA members commercial speech; rather, the issue is related to compelled

19

disclosure of commercial speech. The Supreme Court has treated restrictions on commercial

20

speech differently from compelled disclosure of such speech. This difference in treatment was first

21

articulated in the plurality decision in Zauderer v. Office of Disciplinary Counsel of the Supreme

22

Court of Ohio, 471 U.S. 626 (1985), and subsequently affirmed by the majority opinion in Milavetz,

23

Gallp & Milavetz, P.A. v. United States, 559 U.S. 229 (2010).

24

Because Zauderer is a critical opinion, the Court briefly discusses its holding. The plaintiff

25

in Zauderer was an attorney. He ran an advertisement in which he publiciz[ed] his willingness to

26
27
28

Ironically, the classification of speech between commercial and noncommercial is itself a

content-based distinction. Yet it cannot seriously be contended that such classification itself runs
afoul of the First Amendment.

17

169

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page18 of 35

represent women who had suffered injuries resulting from their use of a contraceptive device known

as the Dalkon Shield Intrauterine Device. Id. at 630. In the advertisement, the plaintiff stated that

[t]he case are handled on a contingent fee basis of the amount recovered. If there is no recovery,

no legal fees are owed by our clients. Id. at 631. Based on the advertisement, the state Office of

Disciplinary Counsel filed a complaint against the plaintiff, alleging that the plaintiff had violated a

disciplinary rule because the advertisement fail[ed] to inform clients that they would be liable for

costs (as opposed to legal fees) even if their claims were unsuccessful and therefore was deceptive.

Id. at 633. The state supreme court agreed with the state Office of Disciplinary Counsel. The

plaintiff appealed, asserting that his First Amendment rights had been violated.
In resolving the issue, the plurality began by noting that

11
For the Northern District of California

United States District Court

10

[o]ur general approach to restrictions on commercial speech is . . . by

now well settled. The States and the Federal Government are free to
prevent the dissemination of commercial speech that is false,
deceptive, or misleading. Commercial speech that is not false or
deceptive and does not concern unlawful activities, however, may be
restricted only in the service of a substantial governmental interest,
and only through means that directly advance that interest [i.e.,
Central Hudson].

12
13
14
15
16
17

Id. at 638.
The plurality pointed out, however, that there are material differences between disclosure

18

requirements and outright prohibitions on speech. Id. at 650. While, in some instances

19

compulsion to speak may be as violative of the First Amendment as prohibitions on speech, that is

20

not always the case. Id. Here, the state was not prescrib[ing] what shall be orthodox in politics,

21

religion, [etc].; rather,

22
23
24
25
26
27

[t]he State has attempted only to prescribe what shall be orthodox in

commercial advertising, and its prescription has taken the form of a
requirement that appellant include in his advertising purely factual and
uncontroversial information about the terms under which his services
will be available. Because the extension of First Amendment
protection to commercial speech is justified principally by the value to
consumers of the information such speech provides, appellants
constitutionally protected interest in not providing any particular
factual information in his advertising is minimal. Thus, in virtually all
our commercial speech decisions to date, we have emphasized that
because disclosure requirements trench much more narrowly on an
advertisers interest than do flat prohibitions on speech, [warnings]

28

18

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Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page19 of 35

or [disclaimers] might be appropriately required . . . in order to

dissipate the possibility of consumer confusion or deception.

2
3
4
5

We do not suggest that disclosure requirements do not

implicate the advertisers First Amendment rights at all. We recognize
that unjustified or unduly burdensome disclosure requirements might
offend the First Amendment by chilling protected commercial speech.
But we hold that an advertisers rights are adequately protected as long
as disclosure requirements are reasonably related to the States interest
in preventing deception of consumers.

6
7
8
9

11
For the Northern District of California

United States District Court

10

12
13
14
15
16
17

Id. at 651 (emphasis added).

The plurality then held that this standard was satisfied in the case at hand.
Appellants advertisement informed the public that if there is no
recovery, no legal fees are owed by our clients. The advertisement
makes no mention of the distinction between legal fees and costs,
and to a layman not aware of the meaning of these terms of art, the
advertisement would suggest that employing appellant would be a
no-lose proposition in that his representation in a losing cause would
come entirely free of charge. The assumption that substantial numbers
of potential clients would be so misled is hardly a speculative one: it is
a commonplace that members of the public are often unaware of the
technical meanings of such terms as fees and costs terms that, in
ordinary usage, might well be virtually interchangeable. When the
possibility of deception is as self-evident as it is in this case, we need
not require the State to conduct a survey of the . . . public before it
[may] determine that the [advertisement] had a tendency to mislead.
The States position that it is deceptive to employ advertising that
refers to contingent-fee arrangements without mentioning the clients
liability for costs is reasonable enough to support a requirement that
information regarding the clients liability for costs be disclosed.

18
19

Id. at 652-53. Accordingly, Zauderer suggests that compelled disclosure of commercial speech,

20

unlike suppression or restriction of such speech, is subject to rational basis review rather than

21

intermediate scrutiny.

22

Approximately fifteen years later, a majority of the Supreme Court addressed Zauderer in

23

Milavetz. Milavetz concerned the constitutionality of the Bankruptcy Abuse Prevention and

24

Consumer Protection Act of 2005 (BAPCPA). The act regulated the conduct of debt relief

25

agencies, i.e., professionals who provide bankruptcy assistance to consumer debtors. Milavetz,

26

559 U.S. at 232. Part of the act required debt relief agencies to make certain disclosures in their

27

advertisements. See id. at 233. The parties disagreed as to whether Central Hudson or Zauderer

28

19

171

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page20 of 35

provided the applicable standard in evaluating the statute. The Supreme Court concluded that

Zauderer governed, noting as follows:

3
4
5
6
7

The challenged provisions of 528 share the essential features

of the rule at issue in Zauderer. As in that case, 528s required
disclosures are intended to combat the problem of inherently
misleading commercial advertisements specifically, the promise of
debt relief without any reference to the possibility of filing for
bankruptcy, which has inherent costs. Additionally, the disclosures
entail only an accurate statement identifying the advertisers legal
status and the character of the assistance provided, and they do not
prevent debt relief agencies . . . from conveying any additional
information.

For the Northern District of California

United States District Court

Id. at 250. The Court then determined that 528s requirements that [the petitioner] identify itself

10

as a debt relief agency and include information about its bankruptcy-assistance an related services

11

are reasonably related to the [Governments] interest in preventing deception of consumers. Id. at

12

252-53. Accordingly, it upheld those provisions as applied to [the petitioner]. Id. at 253.

13

Since Zauderer and Milavetz, circuit courts have essentially characterized the Zauderer test

14

as a rational basis or rational review test. See, e.g., Natl Assn, 2015 U.S. App. LEXIS 14455, at

15

*55 (stating that [t]he Supreme Court has stated that rational basis review applies to certain

16

disclosures of purely factual and uncontroversial information; quoting Zauderer); King v.

17

Governor of N.J., 767 F.3d 216, 236 (3d Cir. 2014) (stating that Zauderer outlin[ed] the material

18

differences between disclosure requirements and outright prohibitions on speech and subject[ed] a

19

disclosure requirement to rational basis review); Safelite Group v. Jepsen, 764 F.3d 258, 259 (2d

20

Cir. 2014) (characterizing Zauderer as rational basis review); Centro Tepeyac v. Montgomery

21

County, 722 F.3d 184, 189 (4th Cir. 2013) (noting that, under Zauderer, disclosure requirements

22

aimed at misleading commercial speech need only survive rational basis scrutiny); Disc. Tobacco

23

City & Lottery, Inc. v. United States, 674 F.3d 509, 559 n.8 (6th Cir. 2012) (characterizing Zauderer

24

as a rational-basis rule); see also Pharm. Care Mgmt. Assn v. Rowe, 429 F.3d 294, 316 (1st Cir.

25

2005) (Boudin, J., concurring) (stating that [t]he idea that these thousands of routine regulations

26

require an extensive First Amendment analysis is mistaken because Zauderer is in essence a

27

rational basis test). This is consistent with the underlying theory of the First Amendment. As the

28

Second Circuit has noted, mandated disclosure of accurate, factual, commercial information does

20

172

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page21 of 35

not offend the core First Amendment values of promoting efficient exchange of information or

protecting individual liberty interests indeed, disclosure further, rather than hinders, the First

Amendment goal of the discovery of truth and contributes to the efficiency of the marketplace of

ideas. Natl Elec. Mfrs. Assn v. Sorrell, 272 F.3d 104, 114 (2d Cir. 2001).

For the Northern District of California

United States District Court

CTIA protests that, even if Zauderer makes a distinction between restrictions on commercial

speech and compelled disclosure, the more lenient test articulated in Zauderer is applicable only

where the governmental interest at issue is the prevention of consumer deception, and that, here, the

governmental interest is in public health or safety, not consumer deception. But tellingly, no court

has expressly held that Zauderer is limited as CTIA proposes. In fact, several circuit courts have

10

held to the contrary. For example, in American Meat Institute v. United States Department of

11

Agriculture., 760 F.3d 18 (D.C. Cir. 2014), the D.C. Circuit, sitting en banc, considered a regulation

12

of the Secretary of Agriculture that required disclosure of country-of-origin information about meat

13

products. The plaintiffs argued that the regulation violated their First Amendment rights. The

14

question for the court was whether the test set forth in Zauderer applies to government interests

15

beyond consumer deception. Id. at 21. The court began by acknowledging that

16
17
18
19
20
21
22
23
24

Zauderer itself does not give a clear answer. Some of its

language suggests possible confinement to correcting deception.
Having already described the disclosure mandated there as limited to
purely factual and uncontroversial information about the terms under
which [the transaction was proposed], the Court said, we hold that
an advertisers rights are adequately protected as long as [such]
disclosure requirements are reasonably related to the States interest in
preventing deception of consumers. (It made no finding that the
advertisers message was more likely to deceive the public than to
inform it, which would constitutionally subject the message to an
outright ban. The Courts own later application of Zauderer in
Milavetz, Gallop & Milavetz, P.A. v. United States, 559 U.S. 229
(2010), also focused on remedying misleading advertisements, which
was the sole interest invoked by the government. Given the subject of
both cases, it was natural for the Court to express the rule in such
terms. The language could have been simply descriptive of the
circumstances to which the Court applied its new rule, or it could have
aimed to preclude any application beyond those circumstances.

25
26
27
28

The language with which Zauderer justified its approach,

however, sweeps far more broadly than the interest in remedying
deception. After recounting the elements of Central Hudson, Zauderer
rejected that test as unnecessary in light of the material differences
between disclosure requirements and outright prohibitions on speech.
Later in the opinion, the Court observed that the First Amendment

21

173

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page22 of 35

interests implicated by disclosure requirements are substantially

weaker than those at stake when speech is actually suppressed. After
noting that the disclosure took the form of purely factual and
uncontroversial information about the terms under which [the] services
will be available, the Court characterized the speakers interest as
minimal: Because the extension of First Amendment protection to
commercial speech is justified principally by the value to consumers
of the information such speech provides, appellants constitutionally
protected interest in not providing any particular factual information in
his advertising is minimal. All told, Zauderers characterization of
the speakers interest in opposing forced disclosure of such
information as minimal seems inherently applicable beyond the
problem of deception, as other circuits [e.g., the Second and First]
have found.

2
3
4
5
6
7
8
9

For the Northern District of California

United States District Court

10

Id. at 21-22.
In National Electrical, the Second Circuit also rejected a reading of Zauderer as being

11

limited to a situation where the governments interest is prevention of consumer deception. The

12

case concerned a Vermont statute that require[d] manufacturers of some mercury-containing

13

products to label their products and packaging to inform consumers that the products contain

14

mercury and, on disposal, should be recycled or disposed of as hazardous waste. Natl Elec., 272

15

F.3d at 107. The court acknowledged that

16
17
18
19
20
21

the compelled disclosure at issue here was not intended to prevent

consumer confusion or deception per se, but rather to better inform
consumers about the products they purchase. Although the overall
goal of the statute is plainly to reduce the amount of mercury released
into the environment, it is inextricably intertwined with the goal of
increasing consumer awareness of the presence of mercury in a variety
of products. Accordingly, we cannot say that the statutes goal is
inconsistent with the policies underlying First Amendment protection
of commercial speech, described above, and the reasons supporting the
distinction between compelled and restricted commercial speech. We
therefore find that it is governed by the reasonable-relationship rule in
Zauderer.

22
23
24
25
26

We believe that such a reasonable relationship is plain in the

instant case. The prescribed labeling would likely contribute directly
to the reduction of mercury pollution, whether or not it makes the
greatest possible contribution. It is probable that some mercury lamp
purchasers, newly informed by the Vermont label, will properly
dispose of them and thereby reduce mercury pollution. By
encouraging such changes in consumer behavior, the labeling
requirement is rationally related to the states goal of reducing
mercury contamination.

27
28

We find that the Vermont statute is rationally related to the

states goal, notwithstanding that the statute may ultimately fail to

22

174

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page23 of 35

For the Northern District of California

United States District Court

eliminate all or even most mercury pollution in the state.

Id. at 115; see also N.Y. St. Rest. Assn v. N.Y. City Bd. of Health, 556 F.3d 114, 133 (2d Cir. 2009)

(stating that Zauderers holding was broad enough to encompass nonmisleading disclosure

requirements).

The First and Sixth Circuits are in accord with the D.C. and Second Circuits. See Pharm.

Care, 429 F.3d at 310 n.8 (noting that we have found no cases limiting Zauderer [to potentially

deceptive advertising directed at consumers]); Disc. Tobacco, 674 F.3d at 556-57 (discussing

National Electrical approvingly); cf. Pharm. Care, 429 F.3d at 316 (Boudin, J., concurring) (stating

that [t]he idea that these thousands of routine regulations require an extensive First Amendment

10

analysis is mistaken because Zauderer is in essence a rational basis test). Furthermore, in an

11

unpublished decision, the Ninth Circuit addressed a San Francisco ordinance which also imposed a

12

notice requirement on cell phone retailers (based on RF energy emission), but the court did not hold

13

that Zauderer was limited to circumstances in which a state or local government was trying to

14

prevent potentially misleading advertising. See generally CTIA The Wireless Assn v. City &

15

County of San Francisco, 494 Fed. Appx. 752 (9th Cir. 2012). The court assumed Zauderer applied

16

to mandatory disclosures directed at health and safety, not consumer deception.

17

The circuit authority cited above is persuasive, and thus the Court disagrees with CTIAs

18

interpretation of Zauderer as being limited to preventing consumer deception. Indeed, it would

19

make little sense to conclude that the government has greater power to regulate commercial speech

20

in order to prevent deception than to protect public health and safety, a core function of the historic

21

police powers of the states. See, e.g., Hill v. Colorado, 530 U.S. 703, 715 (2000) (stating that [it] is

22

a traditional exercise of the States police powers to protect the health and safety of their

23

citizens); Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991) (noting that [t]he traditional police

24

power of the States is defined as the authority to provide for the public health, safety, and morals).

25

Moreover, there is a persuasive argument that, where, as here, the compelled disclosure is

26

that of clearly identified government speech, and not that of the private speaker, a standard even less

27

exacting than that established in Zauderer should apply. In Zauderer, the plaintiff-attorney was

28

being compelled to speak, and nothing about that compelled speech indicated it was anyones speech

23

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but the plaintiff-attorneys. In contrast, here, CTIAs members are being compelled to communicate

a message, but the message being communicated is clearly the Citys message, and not that of the

cell phone retailers. See, e.g., Berkeley Mun. Code 9.96.030(A)-(B) (providing that the notice

shall state The City of Berkeley requires that you be provided the following notice and that the

notice shall include the Citys logo). In other words, while CTIAs members are being compelled

to provide a mandated disclosure of Berkeleys speech, no one could reasonably mistake that speech

as emanating from a cell phone retailer itself. Where a law requires a commercial entity engaged in

commercial speech merely to permit a disclosure by the government, rather than compelling speech

out of the mouth of the speaker, the First Amendment interests are less obvious. Notably, at the

10

hearing, CTIA conceded that there would be no First Amendment violation if the City handed out

11

flyers or had a poster board immediately outside a cell phone retailers store. But that then begs the

12

question of what is the difference between that conduct and the conduct at issue herein i.e., where

13

the City information is being provided at the sales counter inside the store instead of immediately

14

outside the store. While the former certainly seems more intrusive, that is more so because it seems

15

to impinge on property rights rather than on expressive rights. CTIA has not cited any appellate

16

authority addressing the proper standard of First Amendment review where the government requires

17

mandatory disclosure of government speech by a private party in the context of commercial speech.

18

To be sure, there are First Amendment limits to the governments ability to require that a

19

speaker carry a hostile or inconsistent message of a third party, at least in the context of

20

noncommercial speech. See, e.g., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515

21

U.S. 557 (1995) (holding that First Amendment rights of a parade organizer and council were

22

violated when they were required to include a gay rights organization in their parade); Pac. Gas &

23

Elec. Co. v. Pub. Utils. Commn of Cal., 475 U.S. 1 (1986) (plurality decision) (concluding that the

24

First Amendment rights of privately owned utility company were violated by an order from the

25

California Public Utilities Commission that required the company to include in its billing envelopes

26

speech of a third party with which the company disagreed); Miami Herald Pubg Co. v. Tornillo,

27

418 U.S. 241, 243, 256, 258 (1974) (holding that a state statute granting a political candidate a right

28

to equal space to reply to criticism and attacks on his record by a newspaper violates the guarantees

24

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of a free press; noting that the statute exacts a penalty on the basis of the content of a newspaper

and also intru[des] into the function of editors). But, as stated above, these cases involved

noncommercial speech, not commercial speech as here. See, e.g., PG&E, 475 U.S. at 9 (noting that

companys newsletter, which was included in the billing envelopes, covered a wide range of topics,

from energy-saving tips to stories about wildlife conservation, and from billing information to

recipes, and thus extend[ed] well beyond speech that [simply] proposes a business transaction;

citing Zauderer and Central Hudson). This is a significant distinction, particularly because First

Amendment analysis in the commercial speech context assumes that more speech, so long as it is not

misleading, enhances the marketplace (as well as the marketplace of ideas). See Zauderer, 471 U.S.

10

at 651 (noting that the extension of First Amendment protection to commercial speech is justified

11

principally by the value to consumers of the information such speech provides). That is why the

12

Court in Zauderer afforded particular deference to the governments decision to compel disclosures

13

(in contrast to laws restricting speech). Here, the ordinance expressly affords retailers the right to

14

add comments to the notice, and there is no showing that adding comments would be a significant

15

burden on retailers.

16

Moreover, Miami Herald can be distinguished on an additional ground. More specifically, in

17

Miami Herald, the primary concern was the chilling of speech by the entity subject to the disclosure

18

requirement as a consequence of the challenged law. See Miami Herald, 418 U.S. at 257 (noting

19

that, [f]aced with the penalties that would accrue to any newspaper that published news or

20

commentary arguably within the reach of the right-of-access statute, editors might well conclude

21

that the safe course is to avoid controversy). In contrast to Miami Herald, here, there is no real

22

claim that the retailers speech is chilled by the Berkeley ordinance; in fact, as indicated above, the

23

ordinance expressly allows retailers to add other information at the retailers discretion. Berkeley

24

Mun. Code 9.96.030(B).

25

While CTIA has argued that being forced to engage in counter-speech (i.e., speech in

26

response to the City notice) is, in and of itself, a First Amendment burden (as indicated in PG&E),

27

that is not necessarily true where commercial speech is at issue. As the City points out, Zauderer

28

spoke only in terms of chilling speech as a First Amendment burden in the context of commercial

25

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speech. See Zauderer, 471 U.S. at 651 (stating that unjustified or unduly burdensome disclosure

requirements might offend the First Amendment by chilling protected commercial speech); see also

Am. Meat, 760 F.3d at 27 (acknowledging the same; also stating that Zauderer cannot justify a

disclosure so burdensome that it essentially operates as a restriction on constitutionally protected

speech). This makes sense as the value of commercial speech comes from the information it

provides i.e., more speech, not less. That being said, even if CTIA were correct that the right not

to speak had some application to commercial speech, he need for counter-speech at least in the

circumstances presented herein are minimal, as discussed infra.

For the Northern District of California

United States District Court

Thus, there is good reason to conclude that the First Amendment test applicable in this case

10

should be even more deferential to the government than the test in Zauderer. More particularly, the

11

rational basis test applicable to compelled display of government speech need not be cabined by the

12

Zauderers requirement that the compelled disclosure be purely factual and uncontroversial.

13

Zauderer, 471 U.S. at 651. In Zauderer, it made sense that the Supreme Court imposed the baseline

14

requirement that the compelled speech be purely factual and uncontroversial because, where speech

15

is in fact purely factual and uncontroversial, then the speakers interest in countering such

16

information is minimal. The Zauderer test thus insures any First Amendment interest against

17

compelled speech is minimal. But where there is attribution of the compelled speech to someone

18

other than the speaker in particular, the government the Zauderer factual-and-uncontroversial

19

requirement is not needed to minimize the intrusion upon the plaintiffs First Amendment interest.

20

Instead, under more general rational basis principles, the challenged law must be reasonably

21

related to a legitimate governmental interest. In particular, if the law furthers a legitimate

22

government interest in requiring disclosure of governmental speech, it should be upheld. This is not

23

to say that First Amendment interest in this context is nonexistent. Even though no speech is

24

compelled out of the mouth of retailers and there is no claim that their speech is chilled, the fact that

25

they may feel compelled to respond to Berkeleys notice arguably implicates to some extent the First

26

Amendment. See PG&E, 471 U.S. at 15 (in case involving noncommercial speech, noting that the

27

company may be forced either to appear to agree with [third partys] views [included in the

28

companys billing envelope] or to respond). Because there is an arguable First Amendment

26

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interest, it may reasonably be contended that the more exacting forum of rational basis review

(which some commentators have labeled rational basis with bite, see Bishop v. Smith, 760 F.3d

1070, 1099 (10th Cir. 2014) (citing law review articles addressing rational basis with bite,

rational basis with teeth, or rational basis plus); Powers v. Harris, 379 F.3d 1208, 1224-25 n.21

(10th Cir. 2004) (same)), which requires an examination of actual state interests and whether the

challenged law actually furthers that interest rather than the traditional rational basis review which

permits a law to be upheld if rationally related to any conceivable interest. Compare Romer v.

Evans, 517 U.S. 620 (1996) (holding that a Colorado constitutional amendment that prohibited all

legislative, executive, or judicial action designed to protect homosexual persons from discrimination

10

lacks a rational relationship to legitimate state interests); City of Cleburne, Tex. v. Cleburne Living

11

Ctr., 473 U.S. 432 (1985) (striking down under rational basis city council decision preventing group

12

home for mentally disabled); Plyler v. Doe, 457 U.S. 202 (1982) (invalidating under rational basis

13

portion of statute excluding immigrant children from public schools), with Williamson v. Lee

14

Optical, 348 U.S. 483 (1955) (applying traditional rational relationship test in evaluating

15

constitutionality of legislation). See also Wal-Mart Stores, Inc. v. City of Turlock, 483 F. Supp. 2d

16

1023, 1038, n 6 (E.D. Cal. 2007) (recognizing Cleburne/Romer approach commonly referred as

17

rational basis with bite).

18

For purposes of this opinion, the Court shall evaluate the Berkeley ordinance under the the

19

more rigorous rational basis review as well as the Zauderer test. As discussed below, both of these

20

standards have been met in the instant case.

21
22

b.

Application of Rational Basis Test

In identifying the government interest supporting the notice required by the ordinance,

23

Berkeley argues that it simply seeks to insure fuller consumer awareness of the FCCs SAR testing

24

procedures and directive to manufacturers to disclose the spacing requirements used to insured SAR

25

does not exceed stated levels. Promoting consumer awareness of the governments testing

26

procedures and guidelines obviously is a legitimate governmental interest. Compare Sorrell v. IMS

27

Health Inc., 131 S. Ct. 2653, 2672 (2011) (stating that the governments legitimate interest in

28

protecting consumers from commercial harms explains why commercial speech can be subject to

27

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greater governmental regulation than noncommercial speech), with Intl Dairy Foods Assn v.

Amestoy, 92 F.3d 67, 74 (2d Cir. 1996) (stating that consumer curiosity alone is not a strong

enough state interest to sustain the compulsion of even an accurate, factual statement in a

commercial context). And the mandated notice (apart from the warning about risk to children)

furthers and is reasonably related that governmental interest. As noted in the preemption analysis

above, nothing in the required Berkeley notice contradicts what the FCC has said and done, and the

upshot of the notice (advising consumers to consult the cell phone instructions or user manual on

how to safely use the phone) tracks what the FCC requires.

CTIA argues that framing the governmental interest as insuring consumer awareness begs the

10

question and misses the real mark. It contends that the real asserted interest here is purported public

11

safety and that the mandated notice is misleading because it suggests a substantial risk to health that

12

does not in fact exist. To the extent the true ultimate governmental interest for the ordinance is

13

public health and safety (since the purpose of referring consumers to the user manual is so that

14

consumers will know how to use your phone safely), such an interest undoubtedly is a legitimate

15

public interest. See, e.g., Hispanic Taco Vendors v. Pasco, 994 F.2d 676, 680 (9th Cir. 1993)

16

(finding ordinance that regulated itinerant vending and imposed licensing fees supported by

17

legitimate governmental interests in, e.g., health and safety). The question then is whether the

18

ordinance is reasonably related to such interest. Notwithstanding CTIAs argument to the contrary,

19

the Court concludes that it is.

20

While there is scientific uncertainty as to the relationship between SAR levels and the risk

21

of, e.g., cancer, and there is scientific debate about whether nonthermal as well as thermal effects of

22

RF radiation may pose health risks, there is a reasonable scientific basis to believe that RF radiation

23

at some levels can and do present health risks. The SAR limits were established by the FCC in the

24

interests of safety in view of the potential risks of RF radiation exposure. Although current

25

maximum SAR levels set by the FCC were designed to provide a comfortable margin, at least with

26

respect to risks posed by the thermal effect of RF radiation, the FCC has in fact established specific

27

limits to SAR exposure and uses those limits in the testing and approval of cell phones for sale to the

28

public. And testing procedures governed by FCC rules incorporating those SAR limits assume a

28

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minimal amount of spacing of the cell phone from the body, without which SAR levels may exceed

the established guidelines.

recognized that excessive RF radiation is potentially dangerous[;] [i]t did so when it balanced that

risk against the need for a practical nationwide cell phone system, and [t]he FCC has never said

that RF radiation poses no danger at all, only that RF radiation can be set at acceptable levels),

revd on other grounds, 494 Fed. Appx. 752 (9th Cir. 2012). Unless the Court were to find that the

FCC guidelines themselves are scientifically baseless and hence irrational which no one has asked

this Court to do the mandated notice here, being predicated on the FCCs guidelines, is reasonably

related to a legitimate governmental interest.10 In short, so long as the challenged law requiring

See CTIA, 827 F. Supp. 2d at 1062 (noting that the FCC has implicitly

10

display and disclosure of governmental message in the context of commercial speech is supported by

11

some reasonable scientific basis, it is likely to pass the rational basis test applicable under the First

12

Amendment.

13
14

c.

Application of Zauderer Test

Even if the ordinance is subject to the more specific Zauderer test,11 see CTIA, 494 Fed.

15

Appx. at 752 (addressing San Francisco ordinance also imposing a notice requirement on cell phone

16

retailers and applying Zauderer), the Berkeley ordinance would likely be upheld. Under Zauderer,

17

the predicate requirement is that the compelled speech must be factual and uncontroversial. But

18

how a court should determine whether such speech is factual and uncontroversial is not clear.

19
20
10

21
22
23
24
25

The mere fact of scientific uncertainty and/or inexactitude does not render the
governments interest in issuing safety warnings to the public irrational or unreasonable. Such
uncertainty and inexactitude inheres in the assessment of any risk. To require the government to
prove a particular quantum of danger before issuing safety warnings would jeopardize an
immeasurable number of laws, regulations, and directives. See Natl Elec., 272 F.3d at 116 (taking
note of the potentially wide-ranging implications of NEMAs First Amendment complaint, as
[i]nnumerable federal and state regulatory programs require the disclosure of product and other
commercial information, ranging from securities disclosures and disclosures in prescription drug
advertisements to tobacco and nutritional labeling and Californias Proposition 65).
11

26
27
28

At the hearing, the Court discussed with the parties who had the burden of proof with
respect to the Zauderer test. Where a commercial speech restriction is at issue, the party seeking to
uphold the restriction bears the burden of proof in justifying it. See Thompson v. W. States Med.
Ctr., 535 U.S. 357, 373 (2002). But here, the Court is not dealing with a commercial speech
restriction but rather a compelled disclosure. For purposes of this opinion, the Court need not
resolve the issue of who bears the burden of proof.

29

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For the Northern District of California

United States District Court

For example, a good case can be made that a court should tread carefully before deeming

compelled speech controversial for Zauderer purposes. As the Sixth Circuit has noted, facts alone

can disconcert, displease, provoke an emotional response, spark controversy, and even overwhelm

reason; thus, the court rejected the underlying premise that a disclosure that provokes a visceral

response must fall outside Zauderers ambit. Disc. Tobacco, 674 F.3d at 569 (adding that whether

a disclosure is scrutinized under Zauderer turns on whether the disclosure conveys factual

information or an opinion, not on whether the disclosure emotionally affects its audience or incites

controversy). The Sixth Circuit also made the point that the use of the word uncontroversial

appeared only once in Zauderer and that elsewhere the Zauderer plurality simply refer[red] to a

10

commercial speaker disclosing factual information and accurate information. Id. at 559 n.8

11

(citing Zauderer, 471 U.S. at 651 & n.14). Furthermore, in Milavetz, the Supreme Court did not

12

repeat the use of the term and instead use[d] the language required factual information and only an

13

accurate statement when describing the characteristics of a disclosure that is scrutinized for a

14

rational basis. Id. (emphasis in original; citing Milavetz, 1130 S. Ct. at 1339-40). Accordingly, this

15

Court agrees with the Sixth Circuit that the term uncontroversial should generally be equated with

16

the term accurate.

17

As for the requirement that the compelled speech be factual (or accurate), in any given case,

18

it is easy to conceive of an argument that, even if the compelled speech is technically accurate, (1) it

19

is still suggestive of an opinion or (2) it is misleading. For example, on the former, one could

20

contend that the mere fact that the government is compelling the speech in the first place indicates

21

that it is the governments opinion that there is a point of concern for the public. One could also

22

argue that the compelled speech is misleading because it omits more specific information.

23

But Zauderer cannot be read to establish a factual and uncontroversial requirement that

24

can be so easily manipulated that it would effectively bar any compelled disclosure by the

25

government. This is particularly true where public health and safety are at issue, as in the instant

26

case. Any time there is an element of risk to public health and safety, practically any speech on the

27

matter could be deemed misleading unless there were a disclosure of everything on each side of the

28

scientific debate an impossible task. One could easily imagine that an overly rigorous factual and

30

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uncontroversial test would render even the Surgeon Generals textual warnings found on cigarette

packages a violation of the First Amendment. See 15 U.S.C. 1333(a) (listing warnings, including

Tobacco smoke can harm your children, Tobacco smoke causes fatal lung disease in

nonsmokers, and Quitting smoking now greatly reduces serious risks to your health); see also

Natl Elec., 272 F.3d at 116 (taking note of the potentially wide-ranging implications of NEMAs

First Amendment complaint, as [i]nnumerable federal and state regulatory programs require the

disclosure of product and other commercial information, ranging from securities disclosures and

disclosures in prescription drug advertisements to tobacco and nutritional labeling and Californias

Proposition 65).

For the Northern District of California

United States District Court

10

Turning to the City ordinance at issue here, the Court finds that the factual-and-

11

uncontroversial predicate requirement has likely been met, particularly as the Court has now found

12

the sentence regarding children preempted. With that sentence excised, the ordinance provides in

13

relevant part as follows:

14

The City of Berkeley requires that you be provided the following

notice:

15
16
17
18

To assure safety, the Federal Government requires that cell phones

meet radio frequency (RF) exposure guidelines. If you carry or use
your phone in a pants or shirt pocket or tucked into a bra when the
phone is ON and connected to a wireless network, you may exceed the
federal guidelines for exposure to RF radiation. This potential risk is
greater for children. Refer to the instructions in your phone or user
manual for information about how to use your phone safely.

19
20
21

Berkeley Mun. Code 9.96.030(A).

The notice contains accurate and uncontroversial information i.e., that the FCC has put

22

limits on RF energy emission with respect to cell phones and that wearing a cell phone against the

23

body (without any spacer) may lead the wearer to exceed the limits. This is consistent with the

24

FCCs directive to cell phone manufacturers to advise consumers about minimum spacing to be

25

maintained between the body and a cell phone, and although there is in fact a good safety margin (at

26

least for thermal effects of RF radiation), nothing indicates that the FCC objects to informing

27

consumers about spacing the phone away from the body.

28

31

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For the Northern District of California

United States District Court

CTIA takes issue with the use of the words safety and radiation, but the use of both

words is accurate and uncontroversial. Regarding safety, the FCC clearly imposed limits because

of safety concerns. The limits that the agency ultimately chose reflected a balancing of the risk to

public health and safety against the need for a practical nationwide cell phone system, but it cannot

be denied that safety was a part of that calculus. See CTIA, 827 F. Supp. 2d at 1062 (in the San

Francisco ordinance case, noting that, [e]ven the FCC has implicitly recognized that excessive RF

radiation is potentially dangerous because it balanced that risk against the need for a practical

nationwide cell phone system[;] [t]he FCC has never said that RF radiation poses no danger at all,

only that RF radiation can be set at acceptable levels), revd on other grounds, 494 Fed. Appx. 752

10

(9th Cir. 2012). As for the term radiation, RF energy is undisputedly a form of radiation. See

11

2013 FCC Reassessment, 28 F.C.C. Rcd. at 3585 (stating that RF energy is a form of

12

electromagnetic radiation that is emitted by cell phones). That the City notice does not make the

13

finer distinction that RF energy is non-ionizing radiation rather than ionizing radiation is immaterial

14

as that distinction would likely have little meaning to the public. As for CTIAs contention that

15

there may be a negative association with nuclear radiation (ionizing radiation), that seems unlikely,

16

particularly in this day and age when radiation comes from various sources in everyday life,

17

including, e.g., radios, televisions, and microwave ovens. No one seriously contends that consumers

18

are likely to believe cell phones emit nuclear radiation or something akin to that.

19

Finally, CTIA protests that the notice is misleading because, even if a cell phone is worn

20

against the body, it is unlikely that the federal guidelines for SAR will be exceeded. See Mot. at 15-

21

16 (arguing thatthis may be possible only with the device transmitting continuously and at

22

maximum power [such as might happen during a call with a handset and the phone in the users

23

pocket at the fringe of a reception area], and that using a device against the body without a spacer

24

will generally result in an actual SAR below the maximum SAR testing). But as indicated above,

25

the Court is wary about any contention that a compelled disclosure particularly where the message

26

in the disclosure is attributed to the government is misleading simply because the disclosure does

27

not describe with precision the magnitude of the risk; the point remains that the FCC established

28

certain limits regarding SAR, limits which have not been challenged as illegal. The mandated

32

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disclosure truthfully states that federal guidelines may be exceeded where spacing is not observed,

just as the FDA accurately warns that Tobacco smoke can harm your children. More importantly,

the sentence criticized by CTIA is tempered by the following sentence: Refer to the instructions in

your phone or user manual for information about how to use your phone safely. That is the upshot

of the disclosure users are advised to consult the manual wherein the FCC itself mandates

disclosures about maintaining spacing.

Guidelines, 4.2.2(4). This is, in essence, factual in nature for purposes of Zauderer.

8
9

For the foregoing reasons, the Court finds that the City notice, with the sentence regarding
children excised from the text on preemption grounds, likely meets the Zauderer factual-anduncontroversial predicate requirement.

11
For the Northern District of California

United States District Court

10

12

See FCC KDB, No. 447498, General RF Exposure

d.

Government Interest

As indicated above, under the Zauderer test, if the disclosure requirement is factual and

13

uncontroversial, then it does not violate the First Amendment so long as it is reasonably related to

14

the governmental interest. This test has been met, for largely the reasons articulated above in

15

discussing the traditional rational review test. Given the fact that the spacing requirements

16

employed by the FCC were established to insure maximum specific levels of SAR are not exceeded

17

and the FCC acknowledges there is a connection between SAR and safety, even if the precise

18

parameters and limits are matters of scientific debate, the ordinance appears reasonably related to

19

a legitimate government interest.

20

e.

21

Undue Burden

Finally, CTIA contends that the disclosure requirement here cannot be upheld because it still

22

violates the First Amendment as it is unduly burdensome. But for this argument to succeed, CTIA

23

cannot show just any kind of burden; rather, it must show a First Amendment burden, i.e., a burden

24

on speech.

25

CTIA has not made any argument that the City ordinance would chill its or its members

26

speech; rather, it contends that there is a burden on its or its members speech because they would

27

rather remain silent but, with the compelled disclosure, are now being forced to engage in counter-

28

speech. As noted above, the City asserts that, where commercial speech is at issue, the only

33

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cognizable burden is chilling of speech, not the burden of being compelled to speak. While this

position has some grounding in Zauderer, which identified only the chilling of commercial speech

as a burden, see Zauderer, 471 U.S. at 651, the Court need not definitively resolve whether

compelled commercial counter-speech can be an undue burden because, even accepting that it can,12

the burden here to CTIA or its members is nothing more than minimal. The ordinance gives retailers

the discretion to add their own speech to Berkeleys message. And because the Citys required

notice contains factual and uncontroversial information, the need for corrective counter-speech is

minimal.

f.

For the Northern District of California

United States District Court

10

Summary on First Amendment Claim

On the first preliminary injunction factor, the Court cannot say that CTIA has established a

11

strong likelihood of success on the merits with respect to its First Amendment claim. Nor has it

12

raised serious question on the merits. While the sentence in the Berkeley ordinance regarding the

13

potential risk to children is likely preempted, the remainder of the City notice is factual and

14

uncontroversial and is reasonably related to the Citys interest in public health and safety.

15

Moreover, the disclosure requirement does not impose an undue burden on CTIA or its members

16

First Amendment rights.

17

C.

18

Likelihood of Irreparable Harm and Balancing of Equities

CTIAs argument on both the likelihood of irreparable harm and the balancing of equities

19

largely depends on there being preemption or a First Amendment violation in the first place.13 See

20

Mot. at 21 (citing Elrod v. Burns, 427 U.S. 347, 373 (1976) (stating that the loss of First

21

Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable

22

injury)). But, as discussed above, the likelihood of success on both the preemption and First

23

Amendment claims is weak once the sentence on children is excised from the text of the City notice.

24
25
26
27
28

12

As noted above, there is an arguable First Amendment interest in not being compelled to
respond to speech of a third party, though the only precedent for such a proposition is in the context
of noncommercial speech.
13

CTIA also argues irreparable harm to its members customer goodwill and business
reputations and from the threatened enforcement of a preempted ordinance, see Mot. at 22, but
ultimately these arguments are predicated on the First Amendment argument. In any event, CTIA
has made no satisfactory showing that its business interests are jeopardized by the Berkeley notice if
the warning about children is excised.

34

186

Case3:15-cv-02529-EMC Document53 Filed09/21/15 Page35 of 35

Accordingly, the second and third preliminary injunction factors, like the first, do not weigh in

CTIAs favor.

D.

For the Northern District of California

United States District Court

Public Interest
Finally, the fourth preliminary injunction factor does not weigh in CTIAs favor again

because of the weakness of its claims on the merits. CTIA contends that the public interest does not

weigh in favor of the City because accurate and balanced disclosures regarding RF energy are

already available, Mot. at 23 (emphasis in original), but the City has a fair point that, in spite of the

availability, there is evidence that the public does not know about those disclosures. See, e.g.,

Jensen Decl., Ex. A (survey) (reflecting that a majority of persons surveyed were, e.g., not aware

10

that the governments radiation tests to assure the safety of cell phones assume that a cell phone

11

would not be carried against your body, but would instead be held at least 1- to 15 millimeters from

12

your body). Furthermore, as suggested above, there is a public interest in public safety as well as

13

assuring fuller consumer awareness, particularly where the federal government through the FCC has

14

endorsed consumer awareness by requiring that cell phone manufacturers provide information about

15

spacing to consumers.

16
17

III.

CONCLUSION

For the foregoing reasons, the Court grants in part and denies in part CTIAs motion for a

18

preliminary injunction. The motion is granted to the extent the Court finds a likely successful

19

preemption claim with respect to the sentence in the City notice regarding childrens safety. The

20

motion is denied to the extent the Court finds that a First Amendment claim and preemption claim

21

are not likely to succeed on the remainder of the City notice language.

22

The Berkeley ordinance is enjoined, unless and until the sentence in the City notice

23

regarding children safety is excised from the notice.

24

This order disposes of Docket Nos. 4 and 36.

25

IT IS SO ORDERED.

26

Dated: September 21, 2015

_________________________
EDWARD M. CHEN
United States District Judge

27
28

35

187

Attachment 2
ORDINANCE NO. #,###-N.S.
AMENDING BERKELEY MUNICIPAL CODE SECTION 9.96.030.A CONCERNING
POINT OF SALE NOTICE WARNING FOR CELL PHONES
BE IT ORDAINED by the Council of the City of Berkeley as follows:
Section 1.
That Section 9.96.030.A of the Berkeley Municipal Code is amended to
read as follows:
Section 9.96.030

Required notice

A. A Cell phone retailer shall provide to each customer who buys or leases a Cell
phone a notice containing the following language:
The City of Berkeley requires that you be provided the following notice:
To assure safety, the Federal Government requires that cell phones meet
radio frequency (RF) exposure guidelines. If you carry or use your phone
in a pants or shirt pocket or tucked into a bra when the phone is ON and
connected to a wireless network, you may exceed the federal guidelines
for exposure to RF radiation. This potential risk is greater for children.
Refer to the instructions in your phone or user manual for information
about how to use your phone safely.
Section 2. Copies of this Bill shall be posted for two days prior to adoption in the
glass case located near the walkway in front of Old City Hall, 2134 Martin Luther King
Jr. Way. Within fifteen days of adoption, copies of this Ordinance shall be filed at each
branch of the Berkeley Public Library and the title shall be published in a newspaper of
general circulation.

188

11a

Housing Advisory Commission

ACTION CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Housing Advisory Commission

Submitted by: Brendan Darrow, Chairperson, Housing Advisory Commission

Subject:

Permit Fees Waivers for City-Owned Building Projects Applying for

Community Development Block Grant Funding

RECOMMENDATION
Direct the City Manager to allow automatic permit fees waivers for City-owned building
projects receiving Community Development Block Grant (CDBG) Funding.
FISCAL IMPACTS OF RECOMMENDATION
No overall cost to the City budget, but a shift of the cost of permit fees from the project
to the Planning Department and/or General Fund.
CURRENT SITUATION AND ITS EFFECTS
The HAC approved this recommendation at its April 2, 2015 meeting:
Motion passed to adopt recommendation as written by Commissioners Magofna and
Soto-Vigil with the following amendments: (1) strike section, Conclusion; and (2) insert
word automatic in first sentence, to allow automatic permit fee waivers.
(M/S/C: Soto-Vigil/Tregub. Ayes: Bruzzone, Darrow, Drake, Magofna, Martinucci, SotoVigil, Tregub and Wolfe. Noes: None. Abstain: None. Absent: Gordon (excused))
BACKGROUND
The Housing Advisory Commission participates each year in making recommendations
to City Council regarding allocations of CDBG funds. It designates a CDBG
Subcommittee to review and evaluate proposals and recommend projects for CDBG
funding. This fiscal year the HAC reviewed proposals from January through March and
made site visits to agencies requesting funding for community facility improvements and
housing services.
The subcommittee examines all qualified projects that meet federal and local criteria. In
examining qualified projects and proposed budgets, the current CDBG subcommittee
agrees that more capital improvements can be done on facility upgrades for qualified
projects if the City permanently waived permit fees for capital projects at City owned
buildings.

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

189

Permit Fees Waivers for City-Owned Building Projects Applying for

Community Development Block Grant Funding

ACTION CALENDAR
October 6, 2015

The 2015-2016 HAC CDBG subcommittee reviewed all capital improvement proposal,
which included budget proposals. Due to financial constraints, not all requests for
capital improvements were granted.
Upon review and lengthy discussion of the aforementioned, the CDBG subcommittee
unanimously agreed that more capital improvements could be made if the City waived
its permit fees, specifically for capital improvement projects made to City-owned
buildings.
ENVIRONMENTAL SUSTAINABILITY
By waiving permitting fees built into the CDBG funding process, more money can be
allocated to additional projects. This allows for an increase in the number of energy and
resource-efficient improvements funded overall.
RATIONALE FOR RECOMMENDATION
Waiving permit fees would result in more CDBG funds available for capital
improvements.
ALTERNATIVE ACTIONS CONSIDERED
If no changes were made, public facility projects would continue paying permit fees.
CITY MANAGER
See City Manager companion report.
CONTACT PERSON
Amy Davidson, Senior Community Development Project Coordinator, HHCS, (510) 9815406

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11b

Office of the City Manager

ACTION CALENDAR
October 6, 2015

To:

Honorable Mayor and Members of the City Council

From:

Dee Williams-Ridley, Interim City Manager

Submitted by: Kelly Wallace, Interim Director, Health, Housing & Community Services
Subject:

Waive Permit Fees for CDBG Projects at City-Owned Properties

RECOMMENDATION
Take no action regarding the Housing Advisory Commissions recommendation to waive
permit fees for Community Development Block Grant (CDBG)-funded projects at Cityowned properties.
FISCAL IMPACTS OF RECOMMENDATION
If no blanket waiver is adopted, CDBG funds will continue to be used to pay permit fees
in public facility projects at City-owned sites. The cost of providing permit services will
be paid with CDBG funds in the project budget. If a blanket waiver were adopted,
additional General Funds would be required to provide the necessary permit services.
While the amount of permit fees varies considerably by project, one recent project
valued at $274,000 paid approximately $13,000 in permit fees.
CURRENT SITUATION AND ITS EFFECTS
The City receives block granted funds from the U.S. Department of Housing and Urban
Development through its Community Development Block Grant (CDBG) program. The
City awards these funds annually to help pay for public facilities projects, typically
rehabilitation projects. These funds have been used for projects at the senior centers
and at the Anne Chandler Public Health Clinic. There are many public facility
rehabilitation needs in the City, at both City- and non-profit owned sites, and finite
CDBG funds available to meet these needs.
The Housing Advisory Commission has recommended that permit fees be waived for
CDBG-funded public facility projects at City-owned sites so that more CDBG funds are
available for the rehabilitation work. This would effectively shift the cost of permit
services from CDBG funds to General Funds in the Planning & Development budget.
BACKGROUND
The HAC approved this recommendation at its April 2, 2015 meeting:
Motion passed to adopt recommendation as written by Commissioners Magofna and
Soto-Vigil with the following amendments: (1) strike section, Conclusion; and (2) insert

2180 Milvia Street, Berkeley, CA 94704 Tel: (510) 981-7000 TDD: (510) 981-6903 Fax: (510) 981-7099
E-mail: manager@CityofBerkeley.info Website: http://www.CityofBerkeley.info/Manager

191

Waive Permit Fees for CDBG Projects at City-Owned Properties

ACTION CALENDAR
October 6, 2015

word automatic in first sentence, to allow automatic permit fee waivers.

(M/S/C: Soto-Vigil/Tregub. Ayes: Bruzzone, Darrow, Drake, Magofna, Martinucci, SotoVigil, Tregub and Wolfe. Noes: None. Abstain: None. Absent: Gordon (excused))
ENVIRONMENTAL SUSTAINABILITY
No direct environmental sustainability effects will result from this decision.
Indirectly, waiving permit fees would increase the amount of CDBG funds that could be
used for public facility projects, which could theoretically be used for energy efficiency
projects. However, fewer General Funds would be available for sustainability projects.
RATIONALE FOR RECOMMENDATION
Staff time associated with permitting capital projects costs the City. If the costs are not
paid with CDBG, they will need to be paid by General Funds. General Funds are much
more flexible. Permit fees are a necessary cost of these public facility capital projects.
If a blanket waiver were adopted for City-owned sites, non-profits would likely ask for a
similar waiver, increasing the costs to the General Fund.
ALTERNATIVE ACTIONS CONSIDERED
See Housing Advisory Commission report.
CONTACT PERSON
Amy Davidson, Senior Community Development Project Coordinator, Health, Housing &
Community Services, (510) 981-5406

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12
Kriss Worthington
Councilmember, City of Berkeley, District 7
2180 Milvia Street, 5th Floor, Berkeley, CA 94704
PHONE 510-981-7170 FAX 510-981-7177
kworthington@ci.berkeley.ca.us
ACTION CALENDAR
October 6, 2015
To:
From:

Honorable Mayor and Members of the City Council

Councilmember Kriss Worthington

Subject:

Referral to the City Manager: Prioritize Climate Action Plans Policy to

Redesign/Rebuild the Berkeley Transfer Station and Material Recovery
Facility into a State of the Art Zero Waste Facility

RECOMMENDATION:
Referral to the City Manager: Prioritize the City of Berkeleys Climate Action Plans
policy to redesign/rebuild the Berkeley Transfer Station and the material recovery facility
into a state of the art Zero Waste facility.
BACKGROUND:
In June of 2009, the City of Berkeley issued the Climate Action plan in response to the
growing challenges of Global Warming. The plan addresses combatting sources of
emissions, such as energy consumption of buildings and emissions from transporting
solid waste to landfills.
The Climate Action Plan policy on page 95 proposes to Expand local capacity to
process recycled materials proposes to rebuild the Berkeley Transfer Station and
Material Recovery Facility into Zero Waste facility which would increase Berkeleys
capacity to retrieve a higher percentage of recyclable materials.
As Stated on page 95 of the Climate Action Plan:
The facilities at 2nd and Gilman Streets in Berkeley have been used for recycling and
solid waste management services by the City of Berkeley and various partnering
organizations since the early 1980s. The site includes the Transfer
Station as well as the Citys bin storage, truck parking and washing, household
hazardous waste collection areas, salvage areas, and administrative offices of the Solid
Waste Division, among other uses. The Ecology Center and materials recovery facility
are also located on this site.
As recycling efforts have intensified over the years, the facilities that support waste
diversion efforts are being strained by growing vehicle fleets, increased personnel, and
the need to process more types of materials. The site at 2nd and Gilman has become

193

an increasingly complex mix of activities and use of space. The facility requires major
updating.
(http://www.cityofberkeley.info/uploadedFiles/Planning_and_Development/Level_3__Energy_and_Sustainable_Development/Berkeley%20Climate%20Action%20Plan.pdf)
ENVIRONMENTAL SUSTAINABILITY:
Expanding local capacity to process recycled materials will reduce vehicle miles
traveled (and GHG emissions) associated with transporting materials elsewhere, which
is consistent with Berkeleys Environmental Sustainability goals.
FINANCIAL IMPLICATIONS:
Minimal
CONTACT PERSON:
Councilmember Kriss Worthington
Kaitlin Blando
Jacqueline Reyes

510-981-7170
510-981-7170
323-842-2590

194

13

Councilmember Lori Droste

To:
From:
Subject:

ACTION CALENDAR
October 6, 2015

Honorable Mayor and Members of the City Council

Councilmember Lori Droste
Green Affordable Housing Package

RECOMMENDATION
Refer that the Planning Commission and City Manager investigate the following
two policies as ways to reduce barriers for the creation of affordable housing.
City Council requests that commissions and staff address and propose solutions
and/or an implementation plan using the following recommendations by
September 1, 2016.
Policy 1: Designate units and funding for affordable housing by prioritizing
housing over parking spaces in new developments
1. Reduce or eliminate minimum residential parking requirements if carsharing spaces are provided.
2. Implement residential parking maximums.
3. Reduce or eliminate minimum parking requirements for new housing that
serves populations that do not have high rates of car ownerships.
4. Reduce or eliminate minimum parking requirements for transit-intensive
housing.
Transit-intensive housing is defined as within 1,200 feet of a transit hub
or within 1,200 feet of the overlap between a major transit corridor and
a commercial or mixed-use district.
Broadly defined, a transit corridor generally refers to a geographic area
that accommodates travel or potential travel. A transit corridor is best
defined as the areas around all of the stations along a transit line that
have destinations or residences within reasonable distance for walking,
biking, or other transit connections.
Broadly defined, a transit hub refers to a site containing an existing rail
transit station, a ferry terminal served by either a bus or rail transit
service, or a major bus route with frequencies of service intervals of 15
minutes or less during the morning and afternoon peak commute
periods.
5. Re-evaluate and/or reduce parking space requirements per new
residential unit in areas within a mile of a transit hub.

195

Determine a process whereby the costs saved by parking reductions will be

designated for affordable units or the Affordable Housing Trust Fund.
Policy 2: Remove the structural and procedural barriers to creating more
housing
1. Improve and streamline the development review process, particularly for
permanently affordable housing and smaller residential housing proposals.
Review and compare Berkeleys process to that of neighboring cities.
BACKGROUND
This recommendation adheres to many policy priorities from the City of Berkeley.
Some examples follow:
Housing Element
Objective A-1: HOUSING AFFORDABILITY Berkeley residents should
have access to quality housing at a range of prices and rents. Housing is
least affordable for people at the lowest income levels, and City resources
should focus on this area of need.
Objective A-3: EXPANSION OF THE HOUSING SUPPLY New housing
should be developed to expand housing opportunities in Berkeley to meet
the needs of all income groups.
Objective A-4: SPECIAL NEEDS HOUSING AND HOMELESS
PREVENTION Berkeley should expand the supply of housing for special
needs groups, including housing affordable to households and individuals
with extremely low incomes.
Climate Action Plan
Goal 3: Expand car share and ride sharing
Goal 4: Increase compact development patterns (especially along transit
corridors)
Goal 8: Create an effective parking management strategy
Transportation Element
Policy 2.51 In locations well served by transit, permit the reduction or
elimination of parking requirements in new residential developments or its
location in existing parking structures.
Policy 2.04 Conserve energy by initiating incentives to: a) reduce the
number of vehicle trips; b) increase walking, transit and bicycle use; and c)
develop energy efficient methods for moving people and goods.
Land Use
Policy LU-3: Encourage infill development that is architecturally and
environmentally sensitive, embodies principles of sustainable planning
and construction, and is compatible with neighboring land uses and
architectural design and scale.

196

RATIONALE FOR RECOMMENDATION

Prioritizing housing over parking spaces in new developments
Vast amounts of research show that excessive parking requirements reduce
affordability and impose significant environmental costs (see attachments).1
Parking spots often remain unused in housing complexes, thus taking up
precious land for housing. Eliminating or reducing parking requirements provides
more flexibility to create more housing by getting rid of outdated requirements.
It costs roughly $1 million dollars to create 20 parking spaces when that money
could be dedicated toward affordable housing. Zero-car households have
increased tremendously over the last decade.2 In order to design housing for the
21st century and beyond, the vast majority of urban design experts, affordability
advocates, and environmentalists advocate for these kind of progressive and
pragmatic changes.
Assembly Bill 744, which is awaiting the Governor Jerry Browns signature,
provides an appropriate model of this type of legislation to address affordability
concerns, particularly for populations who dont typically have high rates of car
ownership. 3
Remove the structural barriers to creating more housing
One of the core causes of Berkeleys housing crisis is that the building and
approval process often takes years despite our citys critical need to provide
housing for the community now. Berkeley has grown by approximately 10,000
people in the past ten years but Berkeley has only created half of the housing we
need according to the Regional Housing Needs Allocation.4 If affordable or
smaller projects fit within the current zoning standards and have undergone an
architectural design review, they should be fast-tracked for approval.
FISCAL IMPACT OF RECOMMENDATION
The Affordable Housing Package will create a long-term strategy that will
sustainably generate millions of dollars for affordable housing. In the short-term,
staff time would be increased to implement changes. Over the long-term, this

http://www.eastbayexpress.com/oakland/a-green-solution-to-oaklands-housingcrisis/Content?oid=4443594&showFullText=true
http://www.reinventingparking.org/2015/06/how-much-does-one-parking-spot-add-to.html
http://www.mtc.ca.gov/planning/smart_growth/parking/parking_seminar/Toolbox-Handbook.pdf
http://www.uctc.net/access/42/access42_almanac.pdf
http://www.citylab.com/cityfixer/2015/05/how-parking-keeps-your-rent-too-damn-high-in-2-charts/392894/
http://www.governing.com/columns/urban-notebook/col-minimum-parking-requirements-affordable-housing.html
http://www.spur.org/publications/spur-report/2006-06-01/reducing-housing-costs-rethinking-parking-requirements
http://www.vtpi.org/park-hou.pdf
2 http://www.nytimes.com/2013/06/30/sunday-review/the-end-of-car-culture.html?_r=0
3 http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB744
4 Berkeley Housing Element , p.8
1

197

type of legislation may also significantly reduce staffing time and costs
associated with the planning process.
ENVIRONMENTAL SUSTAINABILITY
This policy reflects the principles in the City of Berkeleys Climate Action plan and
will significantly reduce greenhouse gas emissions.
CONTACT: Councilmember Droste 510-981-7180

198

Attachment 1 (link only)

Levin, Sam. A Green Solution to Oakland's Housing Crisis, East Bay Express. 8.5.2015
http://www.eastbayexpress.com/oakland/a-green-solution-to-oaklands-housingcrisis/Content?oid=4443594&showFullText=true
Attachment 2
Goodman, Seth. How Much Does One Parking Spot Add to Rent? Reinventing
Parking. 6.2.2015 http://www.reinventingparking.org/2015/06/how-much-does-oneparking-spot-add-to.html

Parking is expensive. It costs thousands of dollars per stall to build. It occupies valuable
real estate. It is ubiquitous, accompanying nearly every building built across the United

199

States. Yet at nearly every destination, drivers don't directly pay for the parking they use.
Instead the cost is hidden, bundled into the grocery bill, benefits package, and rent of
every shopper, employee, and tenant.
Everyone pays the same amount for parking whether she or he walked, rode transit,
carpooled, or drove alone, but rarely does anyone see that price itemized on a receipt. As
a result, most people are unaware of the heavy financial burden they bear for the sake of
parking. The above graphic takes a look at one area where parking adds significantly to a
household's expenses: Rent.
So how much does one parking spot add to an apartment's rent? There is no single answer
to that question. Construction costs are affected by local soil conditions, zoning
requirements, site constraints, regional differences in construction costs, and the type of
parking to be built. On the other hand, the rent needed to justify an initial capital
investment varies according to local property taxes, financing costs, resident turnover and
delinquency rates, et cetera. The graphic attempts to present the range covered by these
variables while providing numbers that might be considered typical for structured parking
in the United States.
The effect of each parking spot on affordability is significantly higher in urban
communities than suburban ones both because the land occupied by parking is more
expensive in urban areas and because building structured parking is many times more
costly than paving surface lots. This reality affects the ability of lower income households
to live in urban areas since parking costs roughly the same to build whether an apartment
is luxury grade or modest. An $18,000 spot might not have a noticeable impact on the
rent of a $300,000 unit, but it would definitely be noticed by someone renting a $75,000
unit.
Even when minimum off-street parking requirements are eliminated (and on-street
parking is properly managed), the practice of bundling parking with rent may persist. It is
imperative that cities find a way to separate rent for cars from rent for people either by
encouraging or mandating that parking be rented separately.
People should be allowed to make their own transportation choices, especially when all
the other choices are more sustainable and equitable. When renters have no choice other
than to pay for car storage regardless of whether they possess a car, they are not truly
given that freedom. People with the means to own a car OR to live centrally but not to do
both, should be allowed to choose the latter.
Cities have many reasons to encourage their citizens to live with fewer cars. Fewer cars
owned and operated in a city reduces pollution and greenhouse gas emissions, eases
traffic and infrastructure burdens, and increases households' disposable income. Hiding
parking costs in rent runs in direct opposition to those goals.
There are some who have argued that construction costs, whether higher or lower, have a
negligible effect on rents because property owners will charge whatever the market will

200

bear regardless of upfront costs. This might be true if one assumed that construction costs
have little effect on local supply. Furthermore, any one building is unlikely to strongly
affect rents in an area. A lone developer who constructs a new apartment building in a
market with strong demand will not undercut existing rents simply because the new units
cost less to build. Over time however things will change as long as there is available land
to be redeveloped at a higher density.
Every dollar invested in creating an apartment translates to a higher minimum rent
required just to break even. If a developer does not expect a new unit will command this
target rent, that potential project will not be built. If the amount of parking can be reduced
or eliminated, the money saved on construction will lower the required rent to break even
and make some projects viable that were not viable before. More viable projects
translates to more units getting built resulting in greater competition and thus lower local
rents if demand holds constant.
Attachment 3 (link only)
Reforming Parking Policies to Support Smart Growth, Metropolitan Transportation
Commission. June 2007.
http://www.mtc.ca.gov/planning/smart_growth/parking/parking_seminar/ToolboxHandbook.pdf
Attachment 4 (link only)
Reducing Housing Costs by Rethinking Parking Requirements SPUR. 6.1.2006.
http://www.spur.org/publications/spur-report/2006-06-01/reducing-housing-costsrethinking-parking-requirements
Attachment 5 (link only)
Litman, Todd. Parking Requirement Impact on Housing Affordability. Victoria Transit
Policy Institute. 8.11.2014. http://www.vtpi.org/park-hou.pdf
Attachment 6 (link only)
AB 744 (Chau and Quirk) 2015-2016 Regular Session.
http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB744

201

Attachment 7
Shoup, Donald. On Street Parking Management V. Off Street Parking Requirements,
The Access Almanac. Spring 2013.
http://www.uctc.net/access/42/access42_almanac.pdf
Why do cities require so much off-street parking for new apartment buildings? Many urban
planners argue that residents who own cars will park on the streets if a building doesnt have
enough off-street spaces. Others counter that parking requirements increase housing costs and
subsidize cars. A third group says that banks will not finance new apartment buildings without
parking, developers will not build them, and tenants will not rent them.
Portland, Oregon, tested these claims by removing the parking requirements for apartment
buildings located within 500 feet of frequent transit service38 percent of all parcels in the city.
What happened next? Banks are lending, developers are building, and tenants are renting new
apartments without parking. The market for these apartments is large because almost a quarter of
Portlands renter households do not own a car.
Between 2006 and 2012, developers built 122 apartment buildings on lots exempt from parking
requirements. Fifty-five of these buildings have no off-street parking, and the other 67 have an
average of 0.9 parking spaces per apartment. Altogether, the 122 buildings have an average of 0.6
parking spaces per apartment.
As predicted, however, many tenants in apartments without off-street parking do own cars, and
park them on the nearby streets. Residents of the surrounding neighborhoods understandably
complain about parking spillover, and who can blame them? They want to keep parking easy for
themselves and fear their home values will fall if the curb parking is crowded. As a result, they
want the city to require off-street parking for all new apartments.
If parking requirements merely ensured enough parking spaces to prevent spillover, they
wouldnt create problems. But they also increase housing costs, subsidize cars, and degrade urban
design. Are off-street parking requirements worth these costs?
No, because there is a cheaper and better way to prevent parking spillover. Instead of requiring
off-street parking, cities can better manage on-street parking. One simple strategy is to allow the
residents of any block to adopt an Overnight Parking Permit District. These districts prohibit
overnight parking on the street except by residents and thus prevent nonresidents from storing
their cars in front of residents homes.
Los Angeles, for example, charges residents $15 per year (less than half a cent per day) for an
overnight permit. Residents can also buy guest permits for $1 per night. Enforcement is easy
because officers need to make only one visit during a night to cite all cars parked without permits.
39 A C C E S S NUMBER 42, SPRING 2013 Portland removed parking requirements from all the
shaded areas of this map. A C C E S S 40 If everyone can easily park free on the street, developers
have little incentive to build off-street parking and little ability to charge for the parking spaces
they do build. Overnight permit districts, however, give developers a strong incentive to build as
much off-street parking as tenants demand.
If nearby residents dont want an overnight permit district on their block, the spillover problem
from apartments without parking cant be that bad.
Some cities, like Boulder, Colorado, also sell a few permits to nonresidents on blocks that
regularly have a vacancy rate greater than 25 percent. Nonresidents pay market prices for the
permits, each permit is valid for a specific block, and the city sells no more than four nonresident
permits on any block.

202

To encourage residents to accept a few nonresident permits on their block, the city can dedicate
the resulting revenue to pay for added public services on the block. For example, a block that
allows overnight parking by four nonresidents at $50 a month will raise $2,400 a year for public
services such as repairing sidewalks or undergrounding the overhead utility wires. Residents can
keep all the on-street parking on their block for themselves, but blocks that allow a few
nonresident permits will receive new public investment.
When the tenant of an apartment without parking buys an overnight permit in a nearby
neighborhood, the money saved by not building off-street parking will indirectly finance public
investment in the nearby neighborhood. And because an apartment without parking will have a
lower market rent than an otherwise identical apartment with parking, tenants who do not own
cars will no longer subsidize parking for tenants who do.
To attract tenants without cars to apartments without parking, the city can require landlords to
include a free transit pass in the lease for each unit. This requirement will not burden
development because providing a transit pass costs far less than building a parking space. The
combination of apartments without parking, overnight permit districts, and free transit passes
will encourage residents to ride public transit, cycle, and walk.
Overnight parking permits will not solve all the problems that removing off-street parking
requirements can create. For example, drivers who visit or work in buildings without off-street
parking may park in nearby neighborhoods during the day. In this case, the city can add a
daytime permit district on blocks that request it. If the residents agree, the city can also allow
nonresidents to pay for parking on blocks that have daytime vacancies, and the revenue will pay
for better public services.
Cities should manage the on-street parking supply before they remove their off-street parking
requirements. Parking permit districts are a politically feasible way to begin managing on-street
parking because they protect each neighborhood by charging nonresidents. Favoring insiders over
outsiders for parking on public streets may seem unfair, but political reforms must start from the
status quo, and progress is often merely a small step in the right direction. As Supreme Court
Justice Benjamin Cardozo wrote, Justice is not to be taken by storm. She is to be wooed by slow
advances.
Attachment 8:
Glaeser EL, Gyourko J. The Impact of Zoning on Housing Affordability, 2002.

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Attachment 8
Jaffe, Eric. The High Cost of Residential Parking. Citylab. 5.11.2015
http://www.citylab.com/cityfixer/2015/05/how-parking-keeps-your-rent-too-damn-high-in2-charts/392894/
Seattle's smart new plan to give tenants transit passes instead of parking spaces should help
housing stay more affordable down the line. To get a sense just how much money renters might
save, the city relied on a 2012 study of how parking impacts affordability from its neighbor in the
Pacific Northwest, Portland. That work is striking for both its clarity and its conclusions, so lets
took a closer look.
Portland's Bureau of Planning and Sustainability modeled what happens to unit prices when a
building developer decides to include parking. A few specs if you're into that sort of thing: the
sites were 10,000 square feet (so, about 4 stories tall), zoned for mixed-use (so, shops on the
ground floor), with units averaging 550 square feet (so, depending on your persona, cozy or
cramped).
Solutions for an Urbanizing World
The report looked at several types of parking, including a surface lot, podium (a partial cut of
ground floor) style, mechanical lifts that maximize space, or underground parking. All are
compared to a 50-unit development option with no parking at all. The low-end rents assume
developers make a 7 percent profit on the project; the high-end assumes 10 percent.
Charting the data on cost, we can see rents climb as the parking options become more complex,
and thus expensive for the developer. A low-end rent in a building with no parking comes to $800
a month. Rent in the same unit in a building with the cheapest parking option, surface spots,
comes to $1,200a 50 percent jump. In a building with underground parking, the low-end rent
hits $1300, a spike of 62.5 percent.

Of course, more parking in a building doesn't just mean higher unit rentsit means fewer units,
period. Below we chart the rental units that are sacrificed to various parking types. Again, in the
no-parking scenario, a building can have all 50 possible units. This time the underground lot
actually fares best among the parking options, since it preserves all but 3 units. The surface lot
removes 20 potential homesthat on top of whatever commercial development space it might
lose on the ground floor.

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So we see how parking (especially surface parking) becomes a scourge on a city. Residential lots
and spaces make individual units less and less affordable for tenants. They also result in fewer
units as a whole, meaning the supply of housing across the city takes a hit. That too jacks up rents
over time, as neighborhoods run out of sites to develop, and families run out of places to live.
For decades, cities have required developers to include parking as part of their building plans, a
"minimum" standard that's only now starting to relax in places. That shift in focus does create
new challenges: cities must find other places for parking (ideally, shared facilities), or better yet,
craft programs that discourage residents from driving in the first place (like Seattle's). But for
metros struggling to make housing more affordable, rethinking parking policy is a clear place to
start.

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Attachment 9
Newcombe, Tod. Do Parking Minimums Hurt Affordability? Governing.Com. 7.18.2013.

http://www.governing.com/columns/urban-notebook/col-minimum-parking-requirements-affordable-housing.html

Do Parking Minimums Hurt Housing Affordability?

Affordable housing is a big issue for many cities, especially top-tier urban areas like New York
and Los Angeles, to name a few. And it's only grown worse in recent years as the gap between
what people can afford and what they earn has increased.
The National Low Income Housing Coalition says the average renter earns $14.38 an hour, but
needs to earn $18.79 an hour to afford a decent apartment, according to the U.S. Department of
Housing and Urban Development's fair market rent estimate. The coalition figures that another
4.5 million rental units are needed to satisfy the demand for affordable living. But getting even a
fraction of that number of apartments built won't be easy.
The problem can be tied to a number of factors, including restrictive land-use regulations that can
drive up land and construction costs. One often overlooked regulation is the parking mandate.
Most cities require developers to set aside a parking space for every unit they build in an
apartment building; in some cities, requirements call for a parking slot for every bedroom. Cities
impose parking mandates to keep street parking to a minimum, essentially in order to leave
spaces open for temporary parking. But setting aside the land for all that parking, or adding a
garage beneath the building, can jack up the overall price of an apartment.
These mandates, or parking minimums, have been dubbed a driving subsidy by some critics, who
charge that they distort transportation choices in favor of automobiles and increase traffic
congestion, air pollution and energy consumption. Harvard economist Edward Glaeser points out
that cities have "kept street parking artificially cheap and then mandated more off-street spots,
wasting scarce common space, encouraging automobile congestion and raising the cost of
construction" for housing.
Research by UCLA's Institute of Transportation Studies found that "when parking requirements
are removed, developers provide more housing and less parking, and also that developers provide
different types of housing: housing in older buildings, in previously disinvested areas, and
housing marketed toward non-drivers. This latter category of housing tends to sell for less than
housing with parking spaces."
The findings are getting noticed as urban populations rebound in some areas with new residents
who don't want or need cars, relying instead on transit, bikes, car rentals and, of course, walking
to get around. A small but growing number of cities are beginning to loosen parking regulations in
hopes that developers can reduce the price of their rental units. Cambridge, Mass., has cut back
on parking requirements and now its neighbor, Boston, is doing the same. Portland, Ore., was one
of the first cities in the country to remove parking requirements, which has led to a spate of new
development along transit lines.
But just as more city bike lanes means fewer parking spaces and more unhappy drivers, doing
away with apartment parking requirements can lead to some nasty squabbles in some
jurisdictions. Residents of Boston neighborhoods are angry about the changes the city
government has made regarding parking mandates, fearing a flood of cars on their side streets.
Washington, D.C.'s planning director has reassured its neighborhood residents that minimum
parking requirements will remain in effect in its transit-oriented neighborhoods (although the
city still plans to remove the mandate for its downtown area).
And even in Portland -- perhaps the nation's most progressive urban city -- has had to pull back
on its grand plans to eliminate parking requirements. In April, the city council okayed minimum
parking requirements for large apartment buildings. Neighborhood residents are relieved.
Urbanists are aghast. For now, Portland's working class will have to wait a while longer before
developers can build affordable rental apartments that don't subsidize parking.

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Attachment 10
Rosenthal, Elisabeth. The End of Car Culture. New York Times. 6.29.2013.
http://www.nytimes.com/2013/06/30/sunday-review/the-end-of-car-culture.html?_r=1
PRESIDENT OBAMAS ambitious goals to curb the United States greenhouse gas
emissions, unveiled last week, will get a fortuitous assist from an incipient shift in American
behavior: recent studies suggest that Americans are buying fewer cars, driving less and getting
fewer licenses as each year goes by.
That has left researchers pondering a fundamental question: Has America passed peak driving?
The United States, with its broad expanses and suburban ideals, had long been one of the worlds
prime car cultures. It is the birthplace of the Model T; the home of Detroit; the place where
Wilson Pickett immortalized Mustang Sally and the Beach Boys, Little Deuce Coupe.
But Americas love affair with its vehicles seems to be cooling. When adjusted for population
growth, the number of miles driven in the United States peaked in 2005 and dropped steadily
thereafter, according to an analysis by Doug Short of Advisor Perspectives, an investment
research company. As of April 2013, the number of miles driven per person was nearly 9 percent
below the peak and equal to where the country was in January 1995. Part of the explanation
certainly lies in the recession, because cash-strapped Americans could not afford new cars, and
the unemployed werent going to work anyway. But by many measures the decrease in driving
preceded the downturn and appears to be persisting now that recovery is under way. The next few
years will be telling.
What most intrigues me is that rates of car ownership per household and per person started to
come down two to three years before the downturn, said Michael Sivak, who studies the trend
and who is a research professor at the University of Michigans Transportation Research Institute.
I think that means something more fundamental is going on.
If the pattern persists and many sociologists believe it will it will have beneficial implications
for carbon emissions and the environment, since transportation is the second largest source of
Americas emissions, just behind power plants. But it could have negative implications for the car
industry. Indeed, companies like Ford and Mercedes are already rebranding themselves
mobility companies with a broader product range beyond the personal vehicle.
Different things are converging which suggest that we are witnessing a long-term cultural shift,
said Mimi Sheller, a sociology professor at Drexel University and director of its Mobilities
Research and Policy Center. She cites various factors: the Internet makes telecommuting possible
and allows people to feel more connected without driving to meet friends. The renewal of center
cities has made the suburbs less appealing and has drawn empty nesters back in. Likewise the rise
in cellphones and car-pooling apps has facilitated more flexible commuting arrangements,
including the evolution of shared van services for getting to work.
With all these changes, people who stopped car commuting as a result of the recession may find
less reason to resume the habit.
On top of that, city, state and federal policies that for more than half a century encouraged
suburbanization and car use from mortgage lending to road building are gradually being
diluted or reversed. They created what I call a culture of automobility, and arguably in the last 5
to 10 years that is dying out, Ms. Sheller said.
New Yorks new bike-sharing program and its skyrocketing bridge and tunnel tolls reflect those
new priorities, as do a proliferation of car-sharing programs across the nation.

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Demographic shifts in the driving population suggest that the trend may accelerate. There has
been a large drop in the percentage of 16- to 39-year-olds getting a license, while older people are
likely to retain their licenses as they age, Mr. Sivaks research has found.
He and I have similar observations about our children. Mine (19 and 21) have not bothered to get
a drivers license, even though they both live in places where one could come in handy. They are
interested, but its not a priority. They organize their summer jobs and social life around where
they can walk or take public transportation or car-pool with friends.
Mr. Sivaks son lives in San Francisco and has a car but takes Bay Area Rapid Transit, when he
can, even though that often takes longer than driving. When I was in my 20s and 30s, Mr. Sivak
said, I was curious about what kind of car people drove, but young people dont really care. A car
is just a means of getting from A to B when BART doesnt work.
A study last year found that driving by young people decreased 23 percent between 2001 and
2009. The millennials dont value cars and car ownership, they value technology they care
about what kinds of devices you own, Ms. Sheller said. The percentage of young drivers is
inversely related to the availability of the Internet, Mr. Sivaks research has found. Why spend an
hour driving to work when you could take the bus or train and be online?
From 2007 to 2011, the age group most likely to buy a car shifted from the 35 to 44 group to the
55 to 64 group, he found.
Whether members of the millennial generation will start buying more cars once they have kids to
take to soccer practice and school plays remains an open question. But such projections have
important business implications, even if car buyers are merely older or buying fewer cars in a
lifetime rather than rejecting car culture outright.
At the Mobile World Congress last year in Barcelona, Spain, Bill Ford, executive chairman of the
Ford Motor Company, laid out a business plan for a world in which personal vehicle ownership is
impractical or undesirable. He proposed partnering with the telecommunications industry to
create cities in which pedestrian, bicycle, private cars, commercial and public transportation
traffic are woven into a connected network to save time, conserve resources, lower emissions and
improve safety.
While President Obamas efforts to reduce emissions will benefit from Americans reduced
interest in driving, Chinas leaders will have no such luck: there, personal car ownership is
growing by more than 10 percent annually.

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Communications 10/06/15
Council rules limit action on Communications to referral to the City Manager and/or Boards
and Commissions for investigation and/or recommendations. All communications
submitted to Council are public record.

Minimum Wage
1. Greg Poulios
2. Nina Cooper
Adeline Corridor Plan
3. Rebecca Milliken on behalf of the Berkeley Climate Action Coalition
Harold Way
4. Michael Fullerton
Divestment from Israel
5. Ilana Kaufman and Jim Brandt on behalf of the Jewish Community Relations
Council
6. Michael Harris
7. Faith Meltzer
8. bilanalieb@
9. Marvin Lewis
10. Marc Greendorfer
Concerns Regarding Downtown
11. Christopher Nicholas
12. Mary Ciddio

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