The Informant

Henderson Images

Yesterday, we broke down the obstacles that will continue to face Oakland Police regardless of whether Police Chief Anthony Batts leaves to head up the San Jose Police Department. One of the main problems is the Negotiated Settlement Agreement, or the federal consent decree OPD entered into eight years ago to settle serious misconduct allegations brought to light by the Riders scandal.

The NSA, which requires a slew of reforms in eight core areas (Internal Affairs, Discipline, Field Supervision, Management Oversight, Use of Force Reporting, Personnel Information Management, Training and Auditing and Review Systems), is overseen by U.S. District Court Judge Thelton Henderson. OPD’s progress is measured by a team of independent monitors, who file quarterly reports detailing compliance with the NSA’s mandated reforms.

However, it appears Judge Henderson’s patience with OPD is at its end. The 2003 NSA was originally intended to run for five years, but was twice extended, in 2007 and 2009, because OPD was so far behind in its reforms. Because OPD is required to be in full compliance for a year after completing the required reforms, the department is at risk of blowing yet another crucial deadline.

According to the proceedings of the most recent joint status conference on December 2nd, 2010, Independent Monitor Robert Warshaw has indicated unsatisfactory progress by OPD under Chief Batts. Here is a crucial passage from the statement of Jim Chanin and John Burris, the attorneys who brought the class action suit that resulted in the NSA (emphasis added):

“In January, 2011, the IMT [Independent Monitoring Team] will issue its next report. Plaintiffs’ attorneys hope there will be sufficient compliance at that time so there will be no need for significant further ation by either plaintiffs’ counsel or the court. However, given both the recent and past performance of the OPD, plaintiffs’ counsel are not optimistic that there will be anything approaching full compliance by January 2011…There must also be personal responsibility for the OPD’s failure to comply if that fails. This means that command staff will have to take personal responsibility for compliance and be replaced, by outside people if necessary, if OPD does not attain compliance. A special master may have to be appointed if there is no significant change in compliance levels.”

While this the perspective of the plaintiff’s attorneys, they appear to have hit a note with Judge Henderson. Here’s a passage from his December 12th, 2010 response to the arguments presented by both sides:

“As this Court has heard so many times before, Defendants believe that they will son be in full compliance with the reforms to which they long ago agreed and this Court long ago ordered. Defendants assert that, “the City believes that OPD will have achieved or will be close to achieving substantial compliance by December 31, 2010…Such rhetoric echoes that which has been repeatedly presented to the Court, including the exact same statement – that compliance will be achieved by December 31 – five years ago.

In short, Henderson is highly skeptical about OPD’s promises of compliance. Here are some specifics as to why (emphasis added):

“it is difficult to imagine that Defendants’ promises of substantial compliance in a few short weeks are grounded in reality. For example, the Court’s review of a use-of-force incident brought to the Court’s attention by the Monitor – who uncovered a videorecording made by an officer’s lapel camera during a random audit of internal affairs investigations – highlights potential problems not only with compliance with particular tasks but also with the culture of the Department, up to and including the Chief of Police, who concurred with the investigative finding that the force was not excessive and minor discipline was appropriate only for the use of profanity.”

Henderson here appears to call out Chief Batts specifically for his handling of this use of force investigation that Independent Monitor Warshaw uncovered (and also dismisses OPD’s complaints about Warshaw’s strict standards for compliance). It does appear the threat of sending OPD into deeper Federal oversight in the form of a “special master” or a formalized consent decree such as the one that the Los Angeles Police Department was under until 2009 is very real. It all hinges on Warshaw’s next quarterly report, which will be released this month.

If that’s what Batts sees coming, is having one’s department under a special master reason enough to want to leave for San Jose?