Tuesday, December 12, 2017

Final Report: Independent Review of the 2017 Protest Events in Charlottesville Virginia

There has been a lot of coverage about the recent disturbances around Charlottesville, the home of the University of Virginia.  These disturbances had a fatal result--both as to loss of innocent life and as to our innocence in this contemporary age. 
In 2017, a series of events in Charlottesville made this community a flashpoint in a larger American discussion about race, history, and the challenges of free speech. When our City Council voted to remove two statues of generals who fought for the confederacy during the Civil War, the action triggered a series of events that brought hatred, violence, and despair to our community. Three people lost their lives, and numerous other lives were dramatically and unalterably changed by what happened in our community. (Nunton & Williams, Final Report: Independent Review of the 2017 Protest Events in Charlottesville Virginia (Nov. 2017))
Indeed, as has been much of the case this century in this Republic, we continue to reap the seeds sown  since the time that international ascendancy won through war thrust this Republic into a political-cultural space our capacity for which  was uncertain. 

This Post includes the Preface and Executive Summary of the Final Report: Independent Review of the 2017 Protest Events in Charlottesville Virginia (Nov. 2017) (including its recommendations). Its conclusions I leave to readers. It is posted to this blog because of its importance to the way in which the Academy may well have to face its own approaches to the management of discourse in a context which, like that of the larger political arena, must balance robust principles of open discourse (even with respect to ideas abhorrent to contemporary majorities) while maintaining the peace and safety of the spaces under the care of the institution. This Report has less to say about the views of the protagonists and more to the the larger issues of preserving enough order in the discursive spaces of our Republic to protect discourse and the core premises of the Republic--until, at least such time as its people choose a different way of approaching each.  And that later point, is of course, very much on the table today, in politics and in the academy.


The founders of our democratic government believed in an ordered liberty that guarantees all Americans the right to express themselves in the public square. Thomas Jefferson helped enshrine that value in the early days of the republic. It is therefore only fitting that his hometown of Charlottesville, Virginia, continues to serve as a forum for emerging intersections of speech and security.

In 2017, a series of events in Charlottesville made this community a flashpoint in a larger American discussion about race, history, and the challenges of free speech. When our City Council voted to remove two statues of generals who fought for the confederacy during the Civil War, the action triggered a series of events that brought hatred, violence, and despair to our community. Three people lost their lives, and numerous other lives were dramatically and unalterably changed by what happened in our community.

In the following pages, we try to make sense of the tragic events of 2017. We start with the facts, as truth must be the foundation for any constructive effort to learn and improve. We have tried to assemble a coherent narrative of the protest events that occurred in Charlottesville on May 13 and 14, July 8, and August 11 and 12, 2017. To construct the narrative contained in this report, we spoke to hundreds of people and gathered a wide array of perspectives about these events. We reviewed hundreds of thousands of documents that provide important information. We viewed many hours of video and thousands of photographs, which have allowed us to re-experience those difficult days. We sifted through and consolidated all of this information to produce a cogent summary of what happened in Charlottesville during the turbulent summer of 2017.

We intend for those facts to be the foundation for learning how this community and other small cities can better handle large protest events. We document what went right and what went wrong on each occasion. We consider issues of public safety, communications, permitting, and interagency coordination. We look ahead and make specific recommendations to guide preparation for and response to future events in Charlottesville and elsewhere.

Throughout the process of our review, we have endeavored to be objective and approach our serious task without preconceived opinions. Our client has facilitated that objective approach and made available to us whatever we requested. We have not been limited or directed in any way by any person or agency within City government. Consequently, what follows is our independent assessment of these events.

Our goal in preparing this report is to enhance our community’s ability to understand and learn from the difficult events of 2017. We also hope the facts and recommendations herein lead to constructive discussion in Charlottesville and elsewhere about the important issues raised by the protest events.

Today, we are a fractured city. The divisions within our community surfaced at multiple points during our review, and they continue to hamper our ability to heal and move

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forward. We hope that an honest pursuit of the issues identified in this report leads to more informed discussion, increased understanding, and a more unified Charlottesville.

Timothy J. Heaphy Hunton & Williams LLP November 24, 2017

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Many people contributed to the work of our independent review and helped put this report together. Each of the individuals cited herein deserves a share of the credit for the final product and the gratitude of everyone who will read it.

A. Hunton & Williams

A very strong team of associates at Hunton & Williams provided invaluable assistance from the onset of our engagement. Trevor Garmey, Kevin Elliker, and Jon Caulder each traveled to Charlottesville for multiple interviews, pored over documents and video images, and composed drafts of substantial sections of the report. Their diligence and cooperative spirit was indispensable and helped make the enormous challenge if our work more manageable. Associates Brittany Davidson, Suzanne Hosseini, Martha Condyles, and Britt Anderson, and Temporary Attorney Max Holland contributed time reviewing documents and summarizing interview information, providing raw material that is embedded in these pages.

In addition to attorneys, a large number of professional staff at Hunton & Williams contributed their unique talents to our team. Research librarians Jon Hartnett and Alexis Sharp scoured open sources of information and helped us identify important witnesses. Senior Marketing and Communications Manager Katie Abbott and the outstanding Document Processing team of Rhonda Wash, Danelle Gager, and Katie Bullock lent their creative skills and ensured that our final report was visually appealing. Paralegal Michelle Hayden-Winston pitched in on a variety of tasks. Finally, my Professional Assistants Ye- Eun Sung and Barbara Butler kept me on task and ensured that nothing fell through the cracks during our immersion in this project.

B. Cognicion

As detailed above, we gathered more than a half million documents over the course of our independent review. That large volume of material was received and made usable by the team of litigation support professionals at Cognicion LLC. They traveled to Charlottesville and worked with IT and other City staff to create an efficient system of document production and review. Their work was timely and ensured our access to important information. Chris McDaniel managed the project with help from Mike Perkins and Geoffrey Swanson. In light of the public-service focus of this matter, Cognicion agreed to provide their services to the City of Charlottesville at no charge, saving the City tens of thousands of dollars.

C. The Police Foundation and Law Enforcement Consultants

As our review focused on the actions of multiple law enforcement agencies, we enlisted the expertise of law enforcement consultants . The Police Foundation provided us with Eddie Reyes and Kim Dine, both of whom lent their considerable experience and insight to our review. We supplemented The Police Foundation’s Team with two local experts, former

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Roanoke, Virginia Police Chief Chris Perkins and Rachel Harmon from the University of Virginia School of Law. The former Chiefs brought direct personal experience in handling large protest events to our work. Professor Harmon provided insights into best practices and research on law enforcement practices. All four experts provided important work, and they did so pro bono given the important public benefit of this work. Without the time and effort expended by our experts, our report would have been incomplete.

D. Others

We received many photographs and a great deal of video footage documenting the events at issue in our review. Photographers Patrick Morrissey and Jill Mumie shared their stories of the protest rallies with us. They also provided the photographs that are included in this report. The images they captured help tell the story of July 8 and August 12, and we are grateful for their inclusion in the pages that follow. Victoria Pearson at the Office of Attorney General was extremely helpful in navigating the issues involved in our exchange of information with the Commonwealth of Virginia. We appreciate her professionalism and sense of humor, and we are grateful for her assistance over the course of our review.

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The three protest events we were asked to evaluate in this report all took place in the immediate vicinity of two statues of confederate generals – Robert E. Lee and Thomas “Stonewall” Jackson. While these statues have stood in our town squares for years, they are not universally celebrated or embraced. To some members of our community, the statues are symbols of discrimination and violence. To others, they are proud symbols of a history from which we must learn, not ignore.

This conflict played out in a public discussion facilitated by a Blue Ribbon Commission on Race, Memorials, and Public Spaces, a group convened by City leaders to evaluate the future of the iconic statues. After receiving recommendations from the Commission, the City Council voted to remove one of them from the park where it stood for years. The Council decision was challenged in court and remains stalled by litigation involving the interpretation of a state law governing “war memorials.”

The statue controversy has drawn interest from people around the world, on both sides of the issue. Many members of our community embraced the effort to remove the statues, believing them symbols of white supremacy. They began talking not just about the statues, but more systemic issues like race, immigration, and economic opportunity. The election of President Trump further motivated progressives in Charlottesville. City leaders encouraged this liberal activism and declared Charlottesville the “capital of the resistance” to oppressive policies and systemic inequality.

Local resident Jason Kessler strongly opposed the City’s efforts to remove the statues and the broader effort to brand Charlottesville as a haven for liberal opposition to President Trump. Others shared his views, particularly members of the self-proclaimed “Alt-Right” community that had largely communicated in electronic forums. Kessler found an ally in Richard Spencer, a white nationalist who had developed a following of like-minded individuals through the National Policy Institute.

I. May 13-14

Spencer and Kessler joined forces to organize the first protest events that are discussed in our report. They convened two events on Saturday, May 13 – a daytime march from McGuffey Park to Jackson Park and a nighttime event at Lee Park at which white nationalists carried torches. Over 100 people attended both events, carrying flags and chanting Nazi slogans such as “blood and soil” and “you will not replace us.” Several speakers addressed the crowd at these events, suggesting that Charlottesville’s attempt to remove the civil war statues was part of a broader war against white people and their heritage.

These events were not promoted in advance. Organizers did not obtain permits for either one. Accordingly, they did not attract counter-protesters until near the end of each event, when small groups came to confront the racist ideology. Similarly, they did not draw law enforcement attention. Officers responded to calls for service for both events and arrived well after each event began. They monitored crowds but made no arrests.

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The May 13 events prompted a strong, immediate reaction among Charlottesville’s progressive community and broadened its focus beyond the statues themselves. Political leaders criticized the symbolism of the use of torches and the racist ideology espoused at the events. A group quickly organized a counter-protest on Sunday, May 14 – a candlelight vigil at the Lee statue. A large crowd gathered at the Lee statue that Sunday night. Speakers at the event focused on embracing diversity and inclusion and rejecting imagery and tactics used by Kessler and Spencer. Several fights occurred when Kessler arrived and disrupted the event. Several people including Kessler were arrested.

The events of May 13 and 14 hardened the resolve of both sides to continue their ongoing battle over the statues and broader issues of race and history. While the views expressed at the May 13 protests were not shared by all who supported keeping the statues in place, they attracted attention to our City’s ongoing debate. Kessler and Spencer promoted their role in the events and used them to attract more followers. Community organizations in Charlottesville similarly used these events to attract new followers concerned with the tenor and substance of the words used at the events. Police officials realized they had a gap in intelligence gathering, as they were caught unaware of the events until they took place. Many in Charlottesville began to expect future events on the horizon.

All three of the events of May 13 – 14 were arguably covered by the City’s special events regulation. Nonetheless, no permits were obtained for any of the individual gatherings and no effort to restrict the events took place. The nighttime events both violated the City’s open flame ordinance, though no enforcement action was taken.

II. July 8

Shortly after the May 13-14 events, a Ku Klux Klan group in North Carolina applied for a permit to conduct a demonstration in Charlottesville on July 8. The Klan group wanted to protest the potential removal of the civil war statues and “stop cultural genocide.” The City immediately began preparing for this event, as leaders knew it would generate a great deal of interest and controversy.

City officials prepared to protect both free expression and public safety at this event. They gathered information, secured the assistance of other agencies, and formulated an Operational Plan for July 8. Police reached out to both the permit holders and representatives of groups opposed to their speech, though their efforts were criticized as an attempt to “intimidate” and “curtail leftist speech and expressive conduct.” CPD commanders worked with their counterparts at the Virginia State Police and other agencies to bring police, fire and rescue resources to the event. They created a plan that attempted to ensure separation between the Klan and counter-protesters, who were expected to vastly outnumber the permitted protest group.

City officials worked together to discourage attendance at the Klan event. In meetings with various groups and in multiple public statements, City Councilors, the City Manager and the Chief of Police recommended that Charlottesville residents not give the Klan an audience. City officials helped organize and promote a series of alternative events that would take place on July 8, with an eye toward minimizing crowds and potential danger of the Klan event. They provided ample information about logistics of all events and were

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responsive to community concerns. The communications strategy was effective, as thorough information allowed citizens to make informed decisions about potential responses to the Klan event.

The Klan rally took place on July 8. Law enforcement was able to facilitate the Klan’s arrival, speech, and departure while protecting public safety. While there were arrests and minor disturbances, no person in attendance was seriously injured and no property damaged. The City also protected the free expression of the Klan, despite its odious character. The City’s response to the Klan event adequately accommodated both compelling interests at stake on July 8 – free speech and public safety.

The City’s response to the Klan event adequately accommodated both compelling interests at stake on July 8 – free speech and public safety.

Despite the overall success of the event, law enforcement made several critical mistakes on July 8. CPD and VSP did not operate with sufficient coordination before, during or after the event. There was no joint training, unified operational plan, or joint radio communication between the agencies. VSP operated largely independently throughout the Klan rally, rather than in an integrated multi-agency force. CPD planners failed to anticipate the counter-protesters’ desire to disrupt the event by impeding the Klan’s arrival and departure. To protect the safety of all participants, officers had to adjust plans and use an enclosed parking garage for Klan vehicles and a mobile field force to clear a path of ingress and egress into the park. While officers created separation between the Klan and counter-protesters, they left too little space between barricades and allowed media representatives into the buffer zone between the conflicting groups.

After the Klan’s departure, a group of counter-protesters focused their anger at law enforcement. Crowds failed to disperse when directed to do so and obstructed the actions of officers. This led to scuffles between officers and counter-protesters, multiple arrests, and the declaration of the event as an unlawful assembly. VSP ultimately deployed three canisters of CS dispersion powder to disperse the crowd, which impacted both counter-protesters and

officers. The decision to deploy a chemical

agent was based on incomplete information and did not follow the protocol that had been established for its use.

The use of military-type equipment, number of arrests, and deployment of chemical dispersants generated strong opposition in the community. City leaders failed to adequately respond to that criticism. They did not provide a complete explanation of the reasons for the use of chemical irritants and other tactical decisions made on July 8, in part because they turned immediately to preparations for the larger August 12 Unite The Right rally.

Photo Source: Patrick Morrissey

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The City’s inability or unwillingness to engage with community members concerned about the July 8 event created distrust in law enforcement and City government.

III. August 11-12

Jason Kessler obtained a permit to convene a rally at the Lee statue at which he planned to bring together a wide array of right-wing and white nationalist groups. This event was called “Unite The Right” and was expected to be a much larger event and more significant public safety challenge than the July 8 Klan rally. Counter-protesters began mobilizing for this event and similarly recruited a range of left-wing groups to come to Charlottesville to confront the racist ideology of the Unite The Right groups. Charlottesville was destined to become the latest arena for a conflict between various groups who had clashed in Portland, Oregon; Berkeley, California; Pikeville, Kentucky, and various other locations where these so-called “Alt-Right” gatherings had taken place.

Photo Source: Patrick Morrissey

City planners understood the scope and challenge presented by the August 12 event. CPD commanders obtained accurate information about expected attendance at the Unite The Right rally, from online and human sources. They knew the event would attract hundreds if not thousands of people on both sides. They also were aware that many attendees would be armed, which created the potential for significant violence. They effectively gathered accurate, timely intelligence about the event, which informed planning efforts.

Citizens of Charlottesville began preparing for the Unite The Right event as well. A new faith-based organization called Congregate Charlottesville was formed and organized a series of trainings in nonviolent civil disobedience for those interested in engaging in those tactics on August 12. Local anti-racist groups prepared to disrupt the event and hinder law enforcement response to specific threats. Business owners and neighborhood groups sought information from City leaders and were frustrated by the lack of communication they received.

In the face of strong community opposition to the Unite The Right rally, City leaders wanted to deny Kessler’s permit application. City Councilors responded to this pressure by injecting themselves into the operational details of the City’s response to this event—a function typically reserved for City staff. In a closed meeting 10 days before the event, they considered the prospect of moving the Unite The Right event to McIntire Park. City Manager Maurice Jones and CPD Chief Al Thomas voiced concerns with moving the event to McIntire Park, particularly just days from the event. City attorneys and outside lawyers cautioned that an attempt to move the event was likely to be struck down by courts. Nonetheless, four of the five Councilors emerged from the closed meeting in favor of

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moving the event to McIntire Park. This put strong pressure on City Manager Jones and Chief Thomas to comply with their desire to move the event.

The late decision to shift the event’s location had a negative impact on preparations for this challenging event. Uncertainty about the location prevented City leaders from providing thorough information to the public about the event beyond its potential danger. The limited communication by the City frustrated many residents already on edge after the July 8 events. Law enforcement leaders had to plan for two possible scenarios, complicating their efforts. The move to McIntire was ultimately unsuccessful; a federal judge granted Kessler an injunction that prevented the move and guaranteed his group access to Emancipation Park.

Even apart from the complexity introduced by the possible move, police planning for August 12 was inadequate and disconnected. CPD commanders did not reach out to officials in other jurisdictions where these groups had clashed previously to seek information and advice. CPD supervisors did not provide adequate training or information to line officers, leaving them uncertain and unprepared for a challenging enforcement environment. CPD planners waited too long to request the assistance of the state agency skilled in emergency response. CPD command staff also received inadequate legal advice and did not implement a prohibition of certain items that could be used as weapons.

CPD devised a flawed Operational Plan for the Unite The Right rally. Constraints on access to private property adjacent to Emancipation Park forced planners to stage particular law enforcement units far from the areas of potential need. The plan did not ensure adequate separation between conflicting groups. Officers were not stationed along routes of ingress and egress to and from Emancipation Park but rather remained behind barricades in relatively empty zones within the park and around the Command Center. Officers were inadequately equipped to respond to disorders, and tactical gear was not accessible to officers when they needed it.

CPD commanders did not sufficiently coordinate with the Virginia State Police in a unified command on or before August 12. VSP never shared its formal planning document with CPD, a crucial failure that prevented CPD from recognizing the limits of VSP’s intended engagement. CPD and VSP personnel were unable to communicate via radio, as their respective systems were not connected despite plans to ensure they were. There was no joint training or all-hands briefing on or before August 12. Chief Thomas did not exercise functional control of VSP forces despite his role as overall incident commander. These failures undercut cohesion and operational effectiveness. CPD and VSP operated largely independently on August 12, a clear failure of unified command.

On Friday, August 11, the Unite The Right organizers held another unpermitted torch lit march, this time at the University of Virginia. University officials were aware of this event for hours before it began but took no action to enforce separation between groups or otherwise prevent violence. They were unprepared when hundreds of white nationalists walked through the University grounds and surrounded a small group of counter-protesters at the base of a statue of Thomas Jefferson next to the Rotunda. As more and more marchers arrived, shouting and chanting became punching and kicking. When the University Police Department invoked mutual aid—only after repeated offers from CPD—

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officers from both agencies dispersed the unruly crowd. The tenor of this event set an ominous tone for the following day. So did the relative passivity of law enforcement whose failure to anticipate violence and prevent disorders would be repeated on Saturday at Emancipation Park.

The planning and coordination breakdowns prior to August 12 produced disastrous results. Because of their misalignment and lack of accessible protective gear, officers failed to intervene in physical altercations that took place in areas adjacent to Emancipation Park. VSP directed its officers to remain behind barricades rather than risk injury responding to conflicts between protesters and counter-protesters. CPD commanders similarly instructed their officers not to intervene in all but the most serious physical confrontations. Neither agency deployed available field forces or other units to protect public safety at the locations where violence took place. Instead, command staff prepared to declare an unlawful assembly and disperse the crowd. When violence was most prevalent, CPD commanders pulled officers back to a protected area of the park, where they remained for over an hour as people in the large crowd fought on Market Street.

Once the unlawful assembly was declared, law enforcement efforts to disperse the crowd generated more violence as Alt-Right protesters were pushed back toward the counter- protesters with whom they had been in conflict. Once Emancipation Park was clear, the violent conflicts spread beyond the park. Small groups of people wandered through the

Because of their misalignment and lack of accessible protective gear, officers failed to intervene in physical altercations that took place in areas adjacent to Emancipation Park.

streets and engaged in frequent skirmishes unimpeded by police. Violence erupted at the Market Street parking garage, Justice Park, High Street, the Water Street parking area, and on the Downtown Mall. Police attempted to respond to these violent conflicts, but were too far away and too late to intervene. The result was a period of lawlessness and tension that threatened the safety of the entire community.

The most tragic manifestation of the failure to protect public safety after the event was declared unlawful was the death of Heather Heyer. Early on August 12, CPD had placed a school resource officer alone at the intersection of 4th Street NE and Market Street. This officer feared for her safety as groups of angry Alt-Right protesters and counter-protesters streamed by her as they left Emancipation Park. The officer called for assistance and was relieved of her post. Unfortunately, CPD commanders did not replace her or make other arrangements to prevent traffic from traveling across the Downtown Mall on 4th Street. A single wooden saw horse was all that impeded traffic down 4th Street as large groups of people continued to roam the streets. This vulnerability was exposed when James Fields drove his vehicle down the unprotected street into a large crowd of counter-protesters at the intersection of 4th Street SE and Water Street, killing Ms. Heyer.

CFD and the UVA Health System had effective plans and promptly responded to the vehicle incident at the intersection of 4th and Water. Every person who was injured and needed hospitalization was removed from the scene and received treatment within thirty minutes, a remarkable feat given the circumstances. This prompt, effective response represents a bright success on a day largely filled with failure.

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Several hours after the incident at 4th and Water Streets, a VSP helicopter crashed, killing two troopers inside. While the crash appears to have been an accident, the loss of the troopers is another disheartening tragedy. Their loss compounded the earlier loss of Heather Heyer and emphatically reinforced the terrible toll this event took on our community.

In contrast to the July 8 event, the City of Charlottesville protected neither free expression nor public safety on August 12. The City was unable to protect the right of free expression and facilitate the permit holder’s offensive speech. This represents a failure of one of government’s core functions – the protection of fundamental rights. Law enforcement also failed to maintain order and protect citizens from harm, injury, and death. Charlottesville preserved neither of those principles on August 12, which has led to deep distrust of government within this community.

IV . Recommendations

Looking ahead, we recommend the following steps to improve response to future events. We hope these suggestions also provide guidance to other small cities faced with managing volatile protest events.

A. Preparing for Civil Disturbance

Better preparation is critical. We recommend that CPD and CFD planners follow Incident Command System (ICS) procedures implemented by the National Incident Management System (NIMS) in anticipation of future large protest events. Police agencies should ensure that they have adequate means to gather and vet intelligence and incorporate that information into operational plans. They should reach out to peers in other jurisdictions and learn from their experience. Officers charged with protecting public safety during protest events need specialized training with partner agencies that includes standards of law, field training, tactics and equipment to be used during civil unrest situations. City leaders should provide comprehensive information to the public about plans for future large demonstration events. Operational plans that ensue from this process should seek to protect both free expression and public safety.

B. Effective Management of Protest Events

When a protest threatens to be volatile, the City should consider creating a secure perimeter with designated points of entry and enforced separation of conflicting groups. While this “stadium approach” will not be possible in every situation, it is a sensible default approach to planning for large, potentially violent events. Regardless of the specific plan adopted, state and local law enforcement planners should ensure all personnel share a common understanding of each involved agency’s role in protecting public safety in a large protest event. All agency personnel should be prepared to respond safety, but immediately to violence of any kind. Operational plans need to allow flexibility and contemplate the movement of specialized units in response to emerging conditions. Finally, the Commonwealth of Virginia should assemble best practices and become a consistent source of training, legal advice, resources, and information to assist localities in handling large protest events.

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C. Changes in Law

Charlottesville should modify its permitting regulations to explicitly codify the prohibition of certain objects at large protest events and require permits for all events involving open flames. The Virginia General Assembly should criminalize the use of a flame to intimidate. The General Assembly should empower municipalities to enact reasonable restrictions on the right to carry firearms at large protest events.

D. Restoring Faith in Government

Our evaluation revealed a city divided. We recommend that the City address the issues raised in the wake of these events as a means to restore confidence in government. For CPD, this means not only better planning and event management, but also more community engagement, a necessary condition for proactive, effective policing. CPD must work with other parts of City government, business and community groups, and citizens as a partner in promoting community well-being. City Council needs to find ways to solicit community input more effectively and identify specific areas of potential change. Citizens can contribute to better communication by approaching the City and efforts to change our community with both flexibility and patience. Our dialogue must be constructive, not accusatory. We should encourage all voices to participate in a robust discussion of the issues that have come to light since the summer protest events.

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