Oakland’s court-appointed Monitor and Compliance Director Robert Warshaw issued an addendum to OPD’s Executive Force Review Board’s report on the police killing of Joshua Pawlik. Make Oakland Better Now! responds.
It’s not time to end police accountability and oversight efforts: it’s time to strengthen them by restoring full control of our department to the people of Oakland, under the guidance of the local leaders who are helping OPD make historic progress.
Make Oakland Better Now! gives an update on the Negotiated Settlement Agreement, how to end court oversight and give control back to Oakland.
Yesterday, attorney Edward Swanson filed his report on what he referred to as a “broken” police disciplinary process to Judge Thelton Henderson. The report is available here, and media reports are here (East Bay Express), here (Oakland Tribune) and here (San Francisco Chronicle). In this post, we will talk about the background leading up to the investigation and report, where Swanson points his finger (and where he doesn’t), his recommendations, and what they mean for Oakland.
Oakland and its police department have been under Court supervision under the “Negotiated Settlement Agreement” (or “NSA”) in the case of Delphine Allen, et al. v. City of Oakland since January, 2003. For twelve years, the City has struggled to bring itself into compliance and end Court supervision. Meanwhile, the Court-appointed monitor, Robert Warshaw, has continued to expand his reach, recommending many departmental changes that go far beyond the language of the NSA. The process of arbitrating police discipline matters arises both out of Section 9.10 of the City Charter (something Swanson did not mention) and the Memorandum of Understanding (or contract) between the City and the Oakland Police Officers Association. The results, although not the process itself, have been under Judge Henderson’s scrutiny for several years. The first time was in September of 2011, when Judge Henderson expressed the belief that something was not right with the arbitration process. An arbitrator had reinstated Officer Hector Jimenez, whom OPD terminated after he shot and killed an unarmed civilian. In response to the judge’s expressed concern, the City assured the Court that it was going to improve its representation and performance in arbitration proceedings. Three years later, an arbitrator ordered reinstatement of Officer Robert Roche, terminated for alleged wrongful use of force during the October, 2011 Occupy Oakland demonstrations. In response, the judge first ordered Warshaw to conduct an investigation, then ordered the City to contract with attorney (and former Judge Henderson law clerk) Edward Swanson. The Court stated that failure of the arbitration / discipline process “undermines the very objectives of the NSA: to promote police integrity … and to enhance the ability of the Oakland Police Department … [to] protect the lives, rights, dignity and property of the community it serves.” (more…)
Oaklanders who follow MOBN!’s posts know that Federal Judge Thelton Henderson had a hearing scheduled next week on the question of whether the Oakland Police Department should be placed in receivership. Yesterday the plaintiffs and the city jointly filed a proposed settlement of the plaintiffs’ receivership motion. The proposed settlement is available here.
More information about the case of Delphine Allen et al. v. City of Oakland (“the Riders Case”) and the Consent Judgment (the “negotiated settlement agreement,” or “NSA”) are available here, here, here and here. Discussions about what the settlement means for Oakland, who won and who lost, will occur in the days to come. But today, we will briefly summarize what the parties agreed to and what the Court will order if Judge Henderson agrees with them.
Local newspaper coverage of the Monitor’s Ninth Report on Oakland’s ongoing efforts to comply with the Negotiated Settlement Agreement contain multiple reports that compliance “has stagnated,” that the Oakland Police Department is that much closer to receivership, and that compliance efforts are moving backward. Indeed, some of the Monitor’s language supports this reporting.
But not surprisingly, things are not all that simple. In some ways they are much worse than reported, in others they aren’t nearly as bad. Part of the problem results directly from ongoing City and OPD malfunctions. Part of it is caused by overreach by the monitor and problems unrelated to the NSA.
But when all is said and done, it looks as though we are getting close either to receivership or to some other level of Federal Court supervision that is unprecedented in modern American history. The Court has set a hearing on the receivership question for this December. Oakland and its citizens may be facing the biggest challenge ever: figuring out how to operate in a new, more costly and tougher environment while getting themselves past the NSA and making the City a safer place.
We’ve looked carefully at the latest report, and undertaken a detailed analysis (see tables after the jump). But, put simply, there seems to be a combination of the following factors: (1) a major problem with OPD’s Personnel Assessment System, barely touched on in the report but posing serious, long-term compliance problems; (2) a collapse of the City’s review of complaints arising out of Occupy Oakland police actions; (3) multiple violations of Oakland’s crowd control policy, which are cause for serious concern but are not violations of the NSA; (4) at least two instances where the monitor declared the OPD to be out of compliance in the fourth quarter of 2011 while admitting there was no supporting evidence; and (5) continued mission creep, in cases where OPD follows the letter of the NSA, but the monitors find non-compliance because they disagree with judgment calls made by the department in individual cases.
The citizens of Oakland are entitled to Constitutional policing. They are entitled to a reformed police department and an end to the millions of dollars paid out in police misconduct suits. City leadership needs to ensure that the promises made more than nine years ago are kept, that the City brings itself into compliance, and that Oakland moves beyond the NSA. But the citizens of Oakland are also entitled to live in a safe community. And so far, no party in the Allen case (the Federal case in which the NSA was issued) is representing the citizens of Oakland and speaking for their right to be safe.
For those who would like more details, we have a task-by-task discussion, and a chart comparing the 8th and 9th reports, after the jump.