Judge Warns Oakland Police Department

It is now 8 years after the Negotiated Settlement Agreement that resulted from the infamous “Riders” Class Action law suit brought by Attorneys John Burris and Jim Chanin. The NSA was supposed to expire after 5 years, and cost the City of Oakland several millions of dollars in fees to an Independent Monitor Team that was employed to report on the compliance of OPD to Federal Judge Thelton E. Henderson. Because OPD was not in full compliance at the end of the 5 year period, the NSA was extended for 3 years, and, as reported in the 2nd Quarter report of 2010, OPD is still not in full compliance.

In a status report hearing on September 16th, Judge Thelton E. Henderson began by acknowledging the progress that OPD has made in compliance with the tasks of the Negotiated Settlement Agreement amidst the “financial challenges” the Department is facing. He expressed the hope that the “senior executive leaders that are responsible for compliance share the commitment shown by the Inspector General Ben Fairow” and that the gains will be reflected in the 3rd and 4th Quarter reports written by the Independent Monitor Team. But he warned that what is needed is ‘real change’ that is sustainable, as opposed to ‘surface change.’ He warned, “I’m not going away, so if you’re waiting for that so you can go back to business as usual, you can forget it,” and added that he was not convinced that the “promise of change” is any more real than it had been. He noted that plaintiffs and the IMT’s growing frustration with the defendants’ inability or unwillingness to get the job done. He also mentioned having heard that police officers were refusing to police so they could avoid all of the NSA required paper work required for a stop, adding that if he learned that this was, indeed, occurring, that there would be “consequences in my court room.” He concluded by suggesting that OPD may need more oversight after the expiration of the NSA to ensure sustainability, speculating that OPD might be “playing nice until the judge stops watching.”He offered the possibility that, ultimately, receivership, although a drastic step, might be in the offing, along with sanctions, contempt of court citations and the extension of supervision.

His remarks were followed by presentations by plaintiffs’ attorney Jim Chanin who described himself as “sick and tired of being sick and tired,” quoting Fannie Lou Hamer. He insisted that there must be clear consequences for the OPD’s failure to get the job done and pointed out that the ongoing costs of the NSA monitoring came at the expenses of other needed City services, like parks and recreation, for Oakland’s residents. He cited OPD’s failure to identify ‘problem officers,’ as one of the central requirements of the NSA. John Burris followed, describing his feeling that this was “déjà vu all over again,” referring to the many promises that have been made by OPD but not realized.

The City of Oakland was represented by OPD Chief Anthony Batts, Rocio Fierro of the City Attorney’s Office and Dan Lindheim, the City Administrator. Chief Batts repeated the mantra ‘no excuses’ several times, acknowledging that he was the person accountable for ensuring compliance with the NSA. He claimed that when he became Chief, the Department was “battered and shattered” but now “moving in the right direction.” He indicated that he has given his Deputy Chiefs the responsibility for overseeing compliance in the areas that are still deficient, including the use of excessive force and the investigations of Internal Affairs, and he is now requiring weekly reports on progress being made. Ms Fierro pleaded with Judge Henderson to give the City “another chance.” She cited the City’s approval of the allocation of about $500,000 to install portable cameras that will help to establish an objective record of what transpires between officers and residents and help to establish trust and credibility between the community and the police. She characterized Chief Batts as “reform-minded” and asserted that “failure is not an option.” Although she said she shared the frustration at the lack of full compliance, she also expressed confidence that OPD will succeed.

The Inspector General Captain Ben Fairow referred to the infrequency of the mandated ‘integrity tests’ and promised that they are now being done more frequently. He also cited improved Internal Affairs interviews and a new Performance Assessment tool that will help identify problem officers. Then, Mr. Lindheim offered a ‘historical perspective’ about the history of the NSA and his observations. He offered that many officers have felt that the NSA was externally imposed and the reasons for the reforms had never been fully explained to them. He said that Mayor Dellums’ decision to retain former Chief Wayne Tucker was partly “symbolic” of the need to move forward on the NSA. Now, the newer officers who had never done policing prior to the NSA have been laid off, and the more experienced officers still remember rules and behaviors that had not been in place before. Mr. Lindheim asserted that many OPD officers had not “bought in” to this “massive number of tasks” because the reasons for doing these activities were not made clear and that was not how things had been done previously.

This characterization was immediately challenged in a swift and strong rebuttal by John Burris who reminded everyone quite forcefully that the NSA elements were agreed upon by OPD. He reminded everyone that this was, indeed a ‘negotiated settlement’ with all stakeholders -- including OPD representation. It was not something imposed by an external agency. He further insisted that the reasons for the needed reforms were obvious, they represented ‘best practices, were well- understood by the OPD Senior Command staff, and should have been imparted to the rank and file. Mr. Lindheim countered that the reasons for these reforms should have been understood, but they weren’t.

The OPOA, interveners, were represented by their legal team Rains Lucia Stern. Rockne Lucia indicated that OPOA’s interest, originally, was to protect the collective bargaining rights of the OPOA. He added that many of the officers complain that the tasks required by the NSA take time away from their ability to do their jobs. With a reduction in staffing, this problem has only grown worse. The OPOA seeks a role in the process moving forward.

The IMT was represented by Robert A. Warshaw who asserted that ‘this is easy stuff.’ He characterized the difficulty of OPD in becoming fully compliant with the NSA as the result of having added too many bureaucratic layers in their efforts to make the necessary changes. He argued that the problems lay in the foundation of the department, and that building on to what was there before, the faulty foundation, is not an effective remedy. Instead, he urged less bureaucracy and more attention to changing the historical problems where they have long resided. He also expressed the hope that OPD would have the ‘courage’ to deal with the issues presented by OPOA which continue to threaten to impede progress.

To sum up, Judge Henderson urged the Department to “improve its actions so as to become the Department they should have been.” He called for a status report in December.