Category Archives: Negotiated Settlement Agreement

A Guide to the Negotiated Settlement Agreement (NSA): The Cost

 

In our previous post, we gave a brief history of the Negotiated Settlement Agreement (NSA). Here, we’ll look at the costs and what can be done to get the Oakland Police Department out from under oversight.

How much does the NSA cost Oakland?
In 2015, Rashidah Grinage, from the Coalition for Police Accountability, filed a Public Records Act request with the City of Oakland, asking for all data on the cost of the Negotiated Settlement Agreement. Paula Hawthorn, who serves on the board of Make Oakland Better Now! and is a member of the Coalition, analyzed that data, and found that from 2003 until the time of the request,  the total spent had been about $30,000,000. Continue reading

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A Guide to the Negotiated Settlement Agreement (NSA)

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

History
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. Continue reading

Update on the Negotiated Settlement Agreement: Our Analysis

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Police reform and public safety advocates have paid close attention to Oakland’s progress–staggered though it’s  been–under the Negotiated Settlement Agreement (or NSA) that settled Oakland’s notorious police corruption case often known as the Riders Case. The settlement agreement was reached in 2003 and Oakland has struggled in the years since to make real progress on the 51 reforms it required.

But under court supervision, the strong leadership of OPD’s current command staff, and new policies that are helping rank-and-file officers build better relationships with our community, OPD reforms are stronger than they’ve ever been. Use-of-force incidents are down, civilian complaints are down, and civilian oversight is being bolstered with strong leadership and more resources.

The media coverage of this progress, and especially of the most recent report from Chief Warshaw, has missed many of the most important points.

First, the monitor repeatedly praises OPD’s policies and its execution of those policies.  For example (from the most recent report), in discussing the very important Executive Force Review Board (EFRB), used to investigate officer-involved shootings and other major uses of force, the monitor reports:

[W]e have noted continued improvement with EFRB process. Of particular note has been the investigators’ demonstrated knowledge of the cases presented and professional police procedures. This is, in part, attributed to the specialized and extensive training the present administration has provided – and it is demonstrative of OPD’s commitment to addressing the serious issue of force. . . . [O]ur review of the case files has found the investigations to be thorough and the Executive Review Board schedule to be timely.

In a lengthy discussion of vehicular and pedestrian stop data and analysis to eliminate bias from such stops, the monitor states:

[W]e . . . applaud OPD for its continued engagement with Dr. Jennifer Eberhardt of Stanford University. Dr. Eberhardt’s collection and study of stop data is an effort to understand whether, or the degree to which, bias may affect the interactions between the police and members of the public; and to develop appropriate training or intervention strategies. This forward thinking will undoubtedly be beneficial to OPD and the Oakland community.

Second, out of 51 “tasks” originally monitored in the NSA, OPD has been in compliance with 48 for more than a year, and is now under monitoring for only Task 5 (Complaint Procedures for IAD), Task 34 (Vehicle Stops, Field Investigation and Detentions) and Task 45 (Consistency of Discipline Policy).

But it’s really less than that. Taking these in inverse order:

Task 45 (Consistency of Discipline Policy):

This was the subject of the Special Investigator’s Report in April, rightly questioning why OPD wasn’t able to make discipline stick in arbitration. The Court expressed “disappointment and shock” at the Investigator’s report, saying “Many of the Investigator’s recommendations are obvious, or at least would be to anyone concerned with trying to improve the City’s arbitration success rate.”

What the Court didn’t explain was that the monitor repeatedly found OPD in compliance with Task 45 from October 2013 through July 2014, before becoming concerned about several arbitrations in October 2014.

The City is implementing the Investigator’s recommendations, and although details are not public, we understand that arbitration outcomes have already improved markedly. OPD and the City should be in full compliance with Task 45 very soon.

Task 34 (Vehicle Stops, Field Investigation and Detentions):

It is worth noting the exact requirements of Task 34:

  1. OPD shall require members to complete a basic report on every vehicle stop, field investigation and every detention. This report shall include, at a minimum:
  2. Time, date and location;
  3. Identification of the initiating member or employee commencing after  the first year of data collection;
  4. Reason for stop;
  5. Apparent race or ethnicity, and gender of individual(s) stopped;
  6. Outcome of stop (arrest, no arrest);
  7. Whether a search was conducted, and outcome of search;
  8. Offense categories (felony, misdemeanor or infraction).
  9. This data shall be entered into a database that can be summarized, searched, queried and reported by personnel authorized by OPD.
  10. The development of this policy shall not pre-empt any other pending or future policies and or policy development, including but not limited to “Promoting Cooperative Strategies to Prevent Racial Profiling.”

– Negotiated Settlement Agreement VI. B.

Here’s what the monitoring team reports:

During our prior quarterly reviews of information to assess compliance with this Task, we reviewed random samples of various data and forms relating to stops. The sample size generally exceeded 350 stops and included Computer Aided Dispatch (CAD) entries, Field Contact Cards, traffic citations, and Stop Data Forms.

We also reviewed the stop data forms to determine whether they were accurately and fully completed as required with the following information, 1) time; 2) date; 3) location; 4) identification of member making stop; 5) reason for stop; 6) apparent race/ethnicity of individual(s) stopped; 7) gender of individual(s) stopped; 8) outcome of stop (arrest or no arrest); 9) whether a search was conducted; 10) outcome of any search; and 11) offense category (felony, misdemeanor, or infraction). We gave special attention to the reason for the stop (No. 5) – essentially the fundamental justification for the interaction between the officer and the person stopped.

Our reviews of this data for our last several quarterly reports found sufficient valid justification for each stop reviewed; accordingly we have turned our focus to analyses of the data to identify indicators of racial disparity.

In other words, OPD is taking absolutely every step required by Task 34. Nonetheless, with no specific stated reason, the monitor finds OPD to be in “partial compliance” with Task 34.

Although the report doesn’t say so, the reasons seem to be racially disparate numbers of stops and searches, the overall number of parole/probation stops (although the monitor acknowledges these stops have a legitimate law enforcement purpose), a lower level of contraband recovery during probation/parole searches of African Americans as compared to Hispanics, and the inadequacy of OPD’s analysis of stop data. At the same time, as discussed above, the monitor praises OPD for its continued engagement of Stanford’s Dr. Eberhardt to provide such analysis.

Make Oakland Better Now! agrees with the monitor that OPD should continue to analyze its stop data and eliminate bias in vehicle and pedestrian stops. We agree that stops, while valuable, “can . . . be detrimental to overall community relations, and to community cooperation with crime control strategies, and . . . it is an area ripe for the employment of the tenets of procedural justice.”  

But the fact that OPD can do even more than it does in these areas does not mean OPD is out of compliance with Task 34.  OPD, based on the monitor’s own reporting, is meeting every one of the Task 34 requirements, and is in full compliance.

Task 5 (Complaint Procedures for IAD):

Here, there are 14 sub-tasks. As with Task 45, the monitor found OPD in full compliance four quarters in a row. After the investigator issued his report concerning arbitrations, the monitor deferred further evaluation of OPD’s compliance with the complaint procedures requirements.

Then, in the 21st report in May of this year, the monitor evaluated every single sub-task, found OPD in full compliance with every single sub-task, and then reported that despite this literal compliance with every requirement, and no criticism whatsoever, he was going to judge OPD as in partial compliance only because of the related Task 45 problems.

In short, as he has on many occasions, the monitor unilaterally re-wrote the requirements of a task and then, based on the new interpretation, found OPD out of compliance.

Our Takeaway:

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.

Chief Sean Whent, Assistant Chief Paul Figueroa, and the rest of their command staff have dedicated their careers to best-practices policing. They have put community policing at the center of how OPD grows and does its job. OPD’s relationships with the community are strengthening through violence-reduction programs like Ceasefire, which enjoys the support of the community, our officers, and all our elected officials. Oakland is already on track to continue this progress, to strengthen the bonds between police and the communities they serve.

As we noted above, and as the court has now reported, Oakland is in full compliance with 50 out of 51 NSA tasks. Once OPD shows sustainable compliance with Task 45, it will be time for the monitor, the Plaintiff attorneys, and the judge to acknowledge it is time for Court supervision to end, and for Oakland to once again carry the full responsibility and accountability for growing the police department our residents deserve.

Note: Links to all relevant NSA reports from 2010 to present are available without search or download charges or the need for a PACER account here.

Update on the Negotiated Settlement Agreement: Give Oversight Back to Oakland

Negotiated Settlement Agreement

Court-appointed NSA Monitor Robert Warshaw issued his twenty-first report on May 5, his twenty-second on July 10 and his twenty-third report on August 10. These received some press coverage (see Oakland Tribune’s report on the most recent report here), but Oakland and local media seem to have largely missed the most important point: After more than a decade, it’s time to talk about finally ending the court’s oversight and returning full control of our policing policies to the people of Oakland.

Make Oakland Better Now! has been very pleased to see the changes at OPD in the past two years, and we certainly understand that many of those changes have been driven by the NSA. Moreover, the hard work of community policing isn’t over. Every successful organization needs to continually improve and adapt, and that certainly applies to police departments.

In the most recent report, Chief Warshaw states that Oakland is short of full compliance in 3 out of the 51 tasks. But the fact is, the reports show that the City is actually in full compliance with 50 out of 51 NSA tasks. As to the one remaining – which addresses the complaint arbitration process – we believe that with implementation of the investigator’s’ recommendations, Oakland’s success rate will be much higher than the national average.  

Once Oakland shows sustainable compliance with this task, it will be time for the monitor, the Plaintiff attorneys and the judge to acknowledge it is time for Court supervision to end, and Oakland to take responsibility for the ongoing improvement of its police department in every respect.

Check back in tomorrow to read our full analysis of the court’s latest report.

THE SWANSON REPORT ON POLICE DISCIPLINE: WHAT DOES IT MEAN, AND WHAT HAPPENS NEXT?

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.

Background

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.” Continue reading

Oakland and Plaintiffs Settle Receivership Issue in Riders Case

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 herehere, 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.

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Oakland Police and The NSA: What Does The Most Recent Monitor’s Report Really Mean?

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.

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