Civil rights attorneys plan to meet with city officials to discuss concluding the 18-year-old reform program.
by David DeBolt Aug. 25, 2021, 9:24 p.m. Sept. 22, 2021, 2:38 p.m.
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In 2003, the city of Oakland agreed to place its police department under the watchful eye of an outside monitoring team and federal judge to address allegations of brutality and civil rights violations. The arrangement was only intended to last five years. It’s been more than 18.
Now, the need for federal oversight might be coming to an end, two civil rights attorneys wrote in court documents filed Wednesday evening.
Attorneys Jim Chanin and John Burris, who represent plaintiffs in the 21-year-old lawsuit which led to the sweeping oversight program, wrote that the Oakland Police Department has made significant progress, and “after years of backsliding there is real momentum toward substantive compliance.”
“It is now time to run through the finish line and bring OPD into full and final compliance,” the attorneys wrote.
In their brief to U.S. District Judge William Orrick, Chanin and Burris noted that they plan to begin talks with city of Oakland officials to settle the case within the next several weeks.
The documents were filed ahead of a Sept. 1 hearing in front of Orrick, who along with court-appointed monitor Robert Warshaw, oversees the program. OPD remains out of full compliance with 5 of 52 mandated reforms, but Chanin and Burris believe the department’s recent progress puts them close enough to the finish line to begin discussing the end of court oversight at OPD.
It wouldn’t stop immediately. To wind down the program, OPD would be subject to a one-year sustainability period in which it will have to prove that the reforms can last without the intervention of outside authorities.
Originally, federal oversight was supposed to end in 2008, after OPD completed the 52 court-ordered tasks. The requirements—including improving the quality of police misconduct investigations, collecting and analyzing data to track racial disparities, and changes to a variety of policies—were agreed upon in the settlement of a lawsuit filed by 119 plaintiffs in 2000 alleging a group of officers known as “The Riders” planted drugs, beat, and racially profiled West Oakland residents.
The Negotiated Settlement Agreement, or NSA, is now in its 19th year. It is one of the longest federal oversight programs of a U.S. police department, outlasting three mayors, six police chiefs and several city administrators.
OPD was slow initially to comply with the requirements of the NSA, and multiple scandals over the years caused further setbacks. Chanin and Burris were prepared to call for an end to the oversight and begin the one-year sustainability period in 2016, until a sexual exploitation scandal involving OPD officers exploded, leading to the removal of three police chiefs in a week.
Under police Chief Anne Kirkpatrick, appointed in 2017, the department fell out of compliance with five of the reform tasks it had earlier achieved. One case at the center of the department’s backsliding was the fatal police shooting of Joshua Pawlik, who was discovered by officers asleep with a gun and shot as he was waking up. In reports to the judge, OPD’s monitor Warshaw wrote that Kirkpatrick was personally responsible for the department’s mishandling of the investigation of the officers who killed Pawlik.
According to recent assessments by Warshaw, and Chanin and Burris, OPD has managed to come back into compliance in several areas, including how officers report use of force incidents; the department’s use of an Executive Force Review Board to investigate officer-involved shootings and other critical incidents; and its creation and use of a sophisticated, data-driven early warning system to track officer conduct and help the department manage risks.
OPD remains out of compliance with five tasks related to: completing internal affairs investigations within a required timeframe; internal affairs complaint procedures; use of force investigations; tracking who OPD officers stop and why; and consistency of discipline against OPD members.
Warshaw, Chanin, and Burris have praised current Chief LeRonne Armstrong for his commitment to advance these reforms. When he became chief earlier this year, Armstrong set a goal to end the NSA within a year. In a recent interview with The Oaklandside, the chief said he believed the department is close to compliance.
“We’ve been holding people accountable like we were asked to do. I’ve been seeking the cultural change that the court is looking for,” Armstrong said. He noted that the federal monitor’s more recent reports have indicated “the positive momentum of the department.”
In their brief filed Wednesday night, Chanin and Burris cited a study by Campaign Zero examining rates of police shootings, which showed Oakland had the lowest rate of cities included in the survey. The list included Dallas, Los Angeles, San Jose, Baltimore, Long Beach, San Francisco, Chicago and New York City. The same study found Oakland did the most to reduce arrest disparities between Black and white people.
Attorneys for the city of Oakland, in a brief also filed Wednesday evening, struck a similar tone. City Attorney Barbara Parker and special counsel Brigid S. Martin wrote that “the city is confident that under Chief Armstrong’s leadership, the department will achieve full compliance.”
The city’s attorneys recognized that the “nut of this case remains what it was in the beginning, which is racial disparity.”
“Other law enforcement agencies in the Bay Area look to the department as a pioneer in evaluating and reducing racial disparities in police stops,” they wrote, noting that from 2013 to 2019 Oakland outperformed every other city of similar size reducing overall arrest and drug possession arrests between Black and white residents.
In an encouraging sign, Warshaw wrote in a recent report that the Executive Force Review Board’s decision to overturn Internal Affairs Division findings and discipline two officers for using excessive force in a dog bite case shows OPD is examining use of force cases more thoroughly than before. Warshaw also did not disagree with the IAD’s findings related to the department’s response to the George Floyd protests last summer, during which OPD officers used tear gas and other less lethal weapons against hundreds of protesters. After an exhaustive investigation, OPD found that dozens of officers had violated department policies and faced discipline.
Another good sign for OPD is that the racial disparities within the department regarding discipline may not be as severe as first thought. In 2020, an outside consultant reported that Black officers were much more likely to be sustained for misconduct and punished than officers of other races. Recently, however, Stanford University professors who have helped OPD with data analysis regarding racial disparities found that the study “inadvertently counted some discipline” and that as a result the findings “may have been distorted.”
Warshaw wrote in a report filed Monday with Judge Orrick that “we have a cautious optimism that the Department can enter the final stages of this long process.”
“The outstanding issues are important ones, and speak to the core of the NSA,” Warshaw wrote. “Timeliness of investigations and the meaningfulness of risk management, not merely as a core value, but as a process that culminates in modified behaviors, are essential. Robust and comprehensive reviews of use of force are of paramount importance. Addressing internal and external disparities, be they who is stopped, and why, or who is disciplined, and who is not, should help lay the foundation for sustainable reform.”
One potential obstacle to ending oversight, Chanin and Burris wrote, is the active internal affairs investigation of racist and sexist Instagram posts on an account believed to be run by one or more Oakland police officers. Posts included disdain for OPD policies meant to prevent police brutality and corruption along with sexist images and jokes. The deadline for completion of this investigation is days away, according to the two attorneys, and they hope to review the findings.
Ultimately, Chanin and Burris wrote that OPD has come a long way.
“The Oakland Police Department has moved from being one of the worst police departments in the San Francisco Bay Area to being one of the best police departments in comparable cities in the country,” the civil rights attorneys wrote. “Assuming the Instagram case is handled appropriately, there is no reason that the Sustainability Period cannot start very soon.”
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David DeBolt reported on City Hall and policing for The Oaklandside. He spent 12 years working for daily newspapers in the Bay Area, including on the Peninsula and Solano County. He joined the Bay Area News Group in 2012 where he covered a variety of beats, most recently as a senior breaking news reporter. During his time at BANG, DeBolt covered Oakland City Hall, the Raiders stadium saga and the A’s search for a new ballpark, as well as the Oakland Police Department and police reform efforts. He was part of the East Bay Times staff honored with the Pulitzer Prize in Breaking News for coverage of the Ghost Ship warehouse fire.
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