Oakland NSA Plaintiffs statement March 10, 2011

8/7/2019 Oakland NSA Plaintiffs statement March 10, 2011

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JOHN L. BURRIS, STATE BAR NO. 69888Law Offices of John L. Burris

Airport Corporate Centre7677 Oakport Road, Suite 1120Oakland, California 94621

Telephone: 510.839.5200

Facsimile: 510.839.3882Attorneys for Plaintiffs

JAMES B. CHANIN, STATE BAR NO. 76043JULIE M. HOUK, STATE BAR NO. 114968

Law Offices of James B. Chanin

3050 Shattuck AvenueBerkeley, California 94705

Telephone: 510.848.4752

Facsimile: 510.848.5819Attorneys for Plaintiffs

(Additional Counsel on Next Page)

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DELPHINE ALLEN; et al;

Plaintiff,vs.

CITY OF OAKLAND, et al.,

Defendant.

MASTER CASE NO. C-00-4

JOINT STATUS CONFEREN

STATEMENT RE NON-MO

SETTLEMENT ISSUES

Date: March 17, 2011

Time: 10:30 a.m.Courtroom 2, 17TH FLOOR

Honorable Thelton E. Henderso

Case3:00-cv-04599-TEH Document593 Filed03/10/11 Page1 o


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GREGORY M. FOX, STATE BAR NO. 070876Bertrand, Fox & Elliot

The Waterfront Building - 2749 Hyde StreetSan Francisco, California 94109Telephone: 415.353.0999Facsimile: 415.353.0990Attorneys for Defendant CITY OF OAKLAND

JOHN A. RUSSO, CITY ATTORNEY, STATE BAR NO. 129729RANDOLPH W. HALL, CHIEF ASSIST. CITY ATTORNEY, STATE BAR NO. 0ROCIO V. FIERRO, SENIOR DEPUTY CITY ATTORNEY, STATE BAR NO. 13

OFFICE OF THE CITY ATTORNEYCITY OF OAKLANDOne Frank H. Ogawa Plaza, Sixth FloorOakland, California 94612Telephone: 510.238.3601Facsimile: 510.238.6500Attorneys for Defendant CITY OF OAKLAND

ROCKNE A. LUCIA, STATE BAR NO. 109349

Rains Lucia Stern, PCAttorneys & Counselors at Law

2300 Contra Costa Boulevard, Suite 230

Pleasant Hill, CA 94523Tel: 925-609-1699

Fax: 925-609-1690

Attorneys for OAKLAND POLICE OFFICERS ASSOCIATION



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PLAINTIFFS CURRENT POSITION

This is a further status conference concerning the progress of the non-mone

the Riders Litigation which was approved by the Court on January 22, 2003.

Plaintiffs attorneys submitted a Case Management Conference Statem

Management Conference that was to be held on December 9, 2010. The Decem

was cancelled by a court order filed on December 8, 2010. Plaintiffs incorporate

their earlier CMC Statement by reference into this Statement.

The Defendants CMC statement in December 2010 had numerous promis

to the effect that the OPD would be in compliance with critical tasks by the end of

2011. The Defendants even stated that the City believes that OPD will have ac

close to achieving substantial compliance by December 31, 2010. (8:11-13). The c

pointed out that:

As this Court has heard so many times before, Defendants believe that theybe in full compliance with the reforms to which they long ago agreed and

long ago orderedSuch rhetoric echoes that which has been repeatedly pre

the Court, including the exact same statementthat compliance will be ac

December 31five years ago

The Defendants empty rhetoric was verified when December 31, 2010 cam

like December 31, 2005) with no substantial compliance having been achieved b

Subsequently, the Independent Monitoring Team (IMT) issued its Fourth Qua

January 27, 2011. The IMT found that OPD was in compliance with 12 (55%

Tasks, in partial compliance with eight Tasks (36%), and not in compliance with o

deferred a compliance determination with one additional Task.

The OPD has not attained full compliance in vital tasks including Task



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regarding compliance issues. The Chief of Police appeared to be leaving for San

not chosen for the job there. He then indicated that he might not be committed to s

Subsequently, he met with the Mayor and decided to continue being Chief of

proposed dramatic changes in the IPAS system which would allow a rebuttal

officers to comments by supervisors. Plaintiffs attorneys strongly disapproved o

sent the Chief a letter which is attached hereto as Exhibit C. On March 7, 2011, th

his order until further notice. Plaintiffs attorneys understand the Chiefs c

supervisors communicate performance related observations to their personnel. Ho

believe that changes proposed by the Chief will accomplish this end and wish to b

proposed changes will not be implemented at a later date.

Defendants progress has been further complicated by efforts by the City

another job and by indications that the current City Manager will be replaced. O

note, the new Mayor appears to be willing to be more active in issues surroundin

and other issues related to the Oakland Police Department. It is too soon to

development will result in significant progress towards the OPD reaching substantia

It has also become apparent that there is tension between the OPD and the I

evident when not a single member of the command staff (Deputy Chief and ab

regularly scheduled exit interview of the IMT. This exit interview is held to in

significant developments that have occurred during the week when the entire IMT s

which only occurs on a quarterly basis.

The IMT has the full support of Plaintiffs attorneys. The current team

working and dedicated to their task. Plaintiffs attorneys have been surprised by th

the OPD and the IMT given the fact that (1) the current IMT (unlike their predecess



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compliance with the MOU.

The OPDs failure to achieve substantial compliance by January 24, substantial compliance will not be attained during the period of the second extensi

January 24, 2012 given the one year of substantial compliance required by the

Plaintiffs attorneys approached the City about a new extension in January 201

commitment from the City that (1) the parties would use their best efforts to

agreement by the March 17, 2011 CMC, and (2) if no significant progress towards

made by March 17, 2011, the parties would be prepared to set a date when any

brought by either Plaintiffs counsel, Defendants counsel, or the IMT pursuant to P

25 and/or 35 of the current MOU. Plaintiffs counsel wanted this commitment

would be afforded the opportunity to prepare and file such a motion while th

jurisdiction under the current MOU.

While plaintiffs counsel have had some productive discussions with the

there is no agreement to extend the MOU at this time and no assurance that such an

obtained. Plaintiffs attorneys proposal for a new MOU would give the Monit

order the OPD to redo investigations, integrity tests and other tasks until they are in

the MOU. The Monitor would also have a much greater presence in Oakland und

The defendants appear to be receptive to plaintiffs attorneys proposal in principle

to commit to any part of it. Instead, they proposed a last minute action plan that

days before this Case Management Conference Statement was due. While laudabl

any plan, will not put the OPD in compliance. Only the OPDs actions, and no

accomplish these tasks.

Plaintiffs attorneys believe that only a new approach will put the OPD into



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this court) over an eight year period, their unwillingness to work with the current

and their failure to commit to a plan to attain compliance in the foreseeable future.DEFENDANT CITY OF OAKLANDS POSITION

Mayor Jean Quan, City Administrator Dan Lindheim and Police Chief Anth

personally committed to a plan of action that will bring OPD into full and final co

NSA/MOU. Based on that commitment by its policy leaders OPD has revie

compliance and non-compliance and prepared the following report to the Court. T

be progress but the pace of compliance must be accelerated. This can onl

compliance is the number one priority for OPD in 2011. The Mayor and Chief of

it the number one priority.

It is clear that prior efforts have not been fully successful and thus a

necessary by the City and OPD. In this status report the City presents a new Actio

approval of Mayor Quan, City Administrator Lindheim and Chief Batts. The City

Action Plan to the plaintiffs attorneys and Chief Warshaw for review and comme

has been approval in concept but final judgment by the Monitor will be bas

performance of OPD implementing the Plan. Given the personal commitmen

Oaklands officials the City has every incentive to achieve compliance this year.

This Action Plan sets forth the criteria for compliance by OPD. Assum

accordance with this Action Plan the City believes all outstanding Tasks will be in

fourth quarter of 2011.The City fully understands that failure presents the risk of

possible appointment of a receiver. More important, the City also understands that

has been a personal disappointment to this Court. That is reason enough for the C

recharge its efforts to perform as promised under past Mayors and Chiefs of Police.



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Given the findings of the Monitor in his Fourth Quarterly Report dated Janu

City agrees with the plaintiffs attorneys that additional time is necessary for OPDreform work it started under the NSA and the MOU.

The parties have been discussing an amendment to the Memorandum

(Amended MOU). The Amended MOU would provide for the Court to continu

jurisdiction of this action for all purposes, consistent with the goal of completin

reform. The Amended MOU would require that the City and OPD continue the

achieving full and sustained compliance with the Reform Tasks not completed und

Initial MOU. The City and OPD believe its now time to focus the compliance

those Tasks that require special attention. A number of other Tasks should be rem

monitoring so economic and human resources may be concentrated on a targeted pla

For example, the Department has achieved substantial compliance for at lea

following Tasks based on the Monitors Fourth Quarterly Report and the OIGs i

inspections. The City and OPD have recommended to the Monitor and plaintiffs

Tasks be therefore removed from the list of actively monitored Tasks effective imm

Task Task Description Date Found in

Compliance

Date Achieved

Sustained Co

2 Timeliness Standards

for IAD investigations

Jun 2009 (First IMT)

(based on Aug-Oct 2008

data)

1st Quarterly Report

(based on Oct-Dec 2

4.7

4.10

Complaints are

reported to IAD on

day of receipt.

May 2009 (First IMT)

(based on Jul 2006-Apr

2008 data)

1st Quarterly Report

(based on Oct-Dec 2



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Compliance

Date Achieved

Sustained Co

5.3

5.6

5.12

5.19

5.20

5.21

(based on Oct-Dec 2009

data)

6 Refusal to accept a

citizen complaint

results in discipline

1st Quarterly Report - Apr

2010


data)

4th Quarterly Report

(based on July-Sep 2

18.2.

2

Supervisors ensure

witnesses are

identified during arrest

approval

1st

Quarterly Report - Apr

2010


data)

4th

Quarterly Report


20.3

20.4

20.5

20.6

Span of Control for

Supervisors

1st Quarterly Report - Apr

2010


data)



24.2

24.3

24.4

Use of Force reporting Jan 2010 (First IMT)

(based on Data Nov 2007-

April 2009)





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Compliance

Date Achieved

Sustained Co30.2

30.3

Executive Force

Review Boards (Level

1 Force)

1st

Quarterly Report - April

2010


data)

4th

Quarterly Report


35 Use of Force Reports

Witness

Identification

Jan 2010 (First IMT)

(based on Nov 2007

April 2009 data)

2nd Quarterly Report

(based on Jan-Mar 2

37 Internal Investigations

Retaliation Against

Witnesses

1st Quarterly Report - April

2010


data)



43.1.

1

Academy and In-

Service Training

Jul 2009 (First IMT)

Conditional Compliance

3rd

Quarterly Report

(based on Apr-Jun 20

The following Tasks are now in-compliance based on the Monitors Quarter

OIG audits and inspections. OPD expects these tasks will show sustained practice c

necessary one year by December 31, 2011, and thus it has informed plaintiffs co

time these tasks should be removed from the list of tasks subject to active monitorin

or any amended MOU.

Task Task Description Date Found in Date One-Year



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Compliance

Date One-Year

Compliance Will5.5 Commander notified

of complaint

This Task was consistently

in compliance until 4th Qtr.

OPD has implemented

corrective measures and

anticipates compliance in

the 8th Report

(July September 20

5.17 Investigative notes are

permanently

maintained in IAD

case files



data)



7.3 OPD accepts and

investigates

anonymous

complaints

2nd

Quarterly Report Aug

2010

(based on Jan-Mar 2010

data)

5th

Quarterly Report

(based on Oct-Dec 2

16 Supporting the IAD

process

2nd Quarterly Report Aug

2010

(based on Jan-Mar 2010

data)


(based on Oct-Dec 2

20.1 Sufficient sergeants

assigned to patrol to

allow for 1:8 ratio

3rd Quarterly Report Oct

2010



(based on Jan-Mar 2



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Compliance

Date One-Year

Compliance Will

used data)

25 Use of Force

investigations and

report responsibilities

3rd

Quarterly Report Oct

2010


data)

6th

Quarterly Report

(based on Jan-Mar 2

26.1 Force Review Board

Timelines



data)



26.2

26.3

26.4

26.5

26.6

Force Review Boards

(Level 2 Force)

3rd Quarterly Report Oct

2010


data)


(based on Jan-Mar 2

30.1 Executive Force

Review Board

Timelines



data)



33.3 Confidentially

reported misconduct

4th

Quarterly Report


data)

7th

Quarterly Report


45.4 Consistency of

Discipline

2nd Quarterly Report Aug

2010


(based on Oct-Dec 2



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Implementation of the Action Plan will divert resources from other law enforcem

currently performing. Thus the City and OPD need clear agreement now by all

Action Plan to avoid future misunderstandings, changes in criteria and delays.

success must be clear and definite; there is no longer time to leave any element o

uncertain or unclear.

If the Monitor disagrees with some of the elements of the Action Plan;

suggestions on how compliance must be achieved, then the City requests that the

writing what specific or general actions are necessary for compliance for the R

Tasks. The City and OPD will review the Monitors compliance recommendatio

them assuming they comport with the economic and human resources available to

and OPD disagree with a recommendation then it will meet and confer with

plaintiffs counsel on a reasonable resolution. If the parties and the Monitor are un

reasonable resolution then either party and/or the Monitor may motion the cou

resolving the dispute so the Action Plan may be approved and implemented forthwit

The initial meet and confer between the parties and the Monitor has

However the parties and the Monitor have not had a face to face meeting to reach

Action Plan.. The parties and the Monitor have therefore agreed to meet in perso

conference on March 17 in court to complete the meet and confer on the Actio

consensus agreement that same day. If the parties need the guidance of the Court t

since we will all be present in court. The City is optimistic that this meeting will le

Action Plan so that it can begin to implement it without further delay.

Once the Action Plan has been approved and implemented the City and OP

Monitor review each Task for compliance. OPD will also meet and confer w


Case3 00 c 04599 TEH Doc ment593 Filed03/10/11 Page14 o


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recommendations and reasonable time to fix the deficiencies before issuing a form

compliance or partial compliance. If OPD is unable to resolve the problem the

proceed to issue a finding of non-compliance. If a dispute continues regarding the

party or the Monitor may motion the Court for a decision resolving the dispute.

Given the leadership and commitment of the Mayor and Chief of Police th

new Action Plan, once modified and/or approved by the Monitor, will lead t

compliance and one year practice compliance within the year of 2012. The Cit

plaintiffs attorneys that if the meet and confer process on an extension does not re

application for an Amended Memorandum of Understanding by June 1, 2011 than

motion the court for a hearing to resolve the matter with a hearing date of Mond

2011.

POSITIONOFINTERVENOR:OAKLANDPOLICEOFFICERSASSO

The Oakland Police Officers Association (OPOA, intervener) contin

parties in an effort to fully implement the Negotiated Settlement Agreement (NS

since the last CMC, the OPOA has attended numerous formal and informal meetin

Department representatives, and City personnel in order to facilitate NSA complianc

There have been a number of issues which have surfaced since the last

generated discussion and debate. Aside from the OPOAs stated concern over civi

Internal Affairs function at OPD, which is specifically set forth in correspondence

City Administrator Dan Lindheim dated February 16, 2011, none have appea

obstacles for further NSA compliance. The OPOA has had a number of discussio

concerning civilianization. At this point in time, the OPOA is not aware of any fo

efforts to civilianize Internal Affairs. The OPOAs stated concerns rest in part


Case3:00 cv 04599 TEH Document593 Filed03/10/11 Page15 o


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process of compliance and will continue to do so.

Finally, the OPOA is aware of the fact that other issues have been deb

several months, and it is unclear as to whether any of those issues will caus

implementation of the NSA.

Dated: March 10, 2011

/s/

JOHN L. BURRIS

Attorney for Plaintiffs


/s/

JAMES B. CHANINAttorney for Plaintiffs


/s/

GREGORY M. FOXAttorney for the Defendant


/s/

Rocio V. FierroAttorney for the Defendant


/s/

Rockne A. Lucia Jr.




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ATTORNEY ATTESTATION

I hereby attest that I have received telephonic or email authorization for any

indicated by a conformed signature (/s/) within this E-filed document.

Dated: March 10, 2011 /s/GREGORY M. FOX


Case3:00-cv-04599-TEH Document593-1 Filed03/10/11 Page1 of 18


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Oakland NSA Plaintiffs statement March 10, 2011

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