A Guide to the Negotiated Settlement Agreement (NSA)

15 years and over $30 million later, the Oakland Police Department is still under federal oversight. 

On January 22, 2003, the U.S. District Court for the Northern District of California approved the settlement of a lawsuit between the City of Oakland and 119 plaintiffs who alleged that Oakland police offices had beaten, kidnapped and planted drugs on them in the summer of 2000. The plaintiffs, who were represented by attorneys James Chanin and John Burris, received a payout of $11 million, and the City agreed to reforms embodied in the Settlement Agreement, a list of 51 different tasks which OPD must come into compliance with. These tasks includes reforms in areas such internal affairs, supervision of officers, police use of force, and community policing.

This is a Settlement Agreement that was agreed to by the plaintiffs and the City, and the compliance is overseen by a federal court judge and a court-appointed Monitor.

Note that this is not the same as other Federal Oversight cases of police departments. For instance, oversight of the Los Angeles Police Department was overseen by the U.S. Justice Department and had a defined 5-year period. It’s possible that because the Justice Department was involved, more expertise was brought to the problems of oversight and reform. We do not know if that would have made a difference in Oakland.

Process for determining compliance
Compliance with each of the tasks is determined by the Independent Monitor. From 2003 – 2009 that was a team led by Division Chief Rachel Burgess (retired, LA County Sherriff’s Office). In its last report in 2010, the team found that OPD had made substantial progress, but was still not fully compliant. The initial monitoring team moved on, and a new team was chosen, led by  Robert Warshaw, the former police chief of Rochester, New York.

As it was whenthe monitoring team was led by Division Chief Burgess, Chief Warshaw’s monitoring team has sole responsibility for assessing compliance. The current team writes a monthly and a quarterly report, which can be read on the City’s website (older reports, from 2003 – 2017, are achieved here). These reports are given to the judge – formerly Judge Henderson, now Judge William Orrick III – who then makes whatever orders he deems necessary (some court filings and documents can also be found on Justia).

Where are we now
In 2012, due to lack of progress on the Negotiated Settlement Agreement, the Plaintiffs’ counsel requested that OPD be placed in receivership. The “Allen v. City of Oakland” Wikipedia article states:

Plaintiffs’ motion ultimately led to a settlement by the parties, who agreed to the Court’s appointment of a Compliance Director who would have broad ranging powers, including the power “to review, investigate and take correction action regarding Oakland Police Department policies, procedures, and practices that are related to the objectives of the Negotiated Settlement Agreement (NSA) and Amended Memorandum of Understanding (AMOU), even if such policies, procedures, or practices do not fall squarely within any specific NSA task.

Presently, Chief Warshaw is the person appointed by the Judge to be both the Compliance Director and the Monitor. Warshaw continues to hold that the OPD is not in compliance with three of the original fifty-one tasks: Task 34, Vehicle Stops, Field Investigations and Detentions; Task 40, Personnel Assessment System and Task 41, Use of Personnel Assessment System.

Task 34 is where the Monitor and the court see prevalent racial profiling and discrimination in police stops, searches, handcuffings, and arrests in Oakland. There is no question this is an area that needs improvement; on the other hand, neither Chief Warshaw nor anyone else have identified a major city whose performance on these issues is better than Oakland’s. And OPD has been heavily involved in identifying and quantifying evidence on these issues, through work by Stanford social psychologist Jennifer Eberhardt in 2016.

Furthermore, OPD has worked with Oakland Community Organizations to develop procedural justice training to improve this performance. This work has had a major impact on the completion status of this task.

Task 40 — the creation of a computerized Personnel Assessment System to keep track of issues with officers and flag those who, for instance, have a large number of complaints against them — is indeed completed, but the system does not work perfectly.

Task 41 — the application of the Personnel Assessment System — makes sure that the officers who have been flagged by the Personnel Assessment System are properly disciplined, counseled, etc.

Are there positive impacts?
While it is impossible to say whether or not the NSA has been the cause, we do know that from 2009 to 2016, OPD use of force incidents dropped by nearly 78%, and from 2012 through 2016, citizen complaints against OPD were down by more than 50%. Critically, we need to know what the impact has been on community attitudes about the police. For years, OPD’s strategic plan has included polling of Oaklanders to see what their attitude is about OPD.  Many elected officials have campaigned in favor of such polling. But it has not occurred in years, and it needs to.

Tomorrow, we’ll continue our discussion on our blog: How much does the NSA cost Oakland? Why has oversight gone on for so long?

Make Oakland Better Now!

OakTalk Here is the blog of Make Oakland Better Now!, an Oakland community grassroots group of a grass-roots group of voters, volunteers, and policy advocates committed to improving the City of Oakland by focusing on public safety, public works, and responsible budgets. Founded in 2003, we’ve researched, lobbied, and successfully campaigned for a number of new, impactful policies, including the city’s Rainy Day Fund, Measure Z and Operation Ceasefire.

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