By: Lisa Fernandez, 08/22/2019
When 119 Oakland residents sued the city because of a band of rogue officers who planted drugs and beat up citizens, the deal made at the time was this: The police department would pay the plaintiffs $11 million and agree to be placed under federal watch for five years.
That oversight stemming from the infamous "Riders" case is now entering its 17th year.
Since that agreement in 2003, Oakland has paid at least $16.7 million for an independent monitoring team to reform the police department and overhaul its culture.
Federal oversight is rare. Out of about 18,000 law enforcement agencies in the United States, there are less than two dozen that are enforced by the Department of Justice or some other form of a federal "consent decree." And despite making progress on several fronts, that cultural transformation within OPD is in question. Some say the department is backsliding and wonder if the Oakland police department will ever be able to run on its own.
"Obviously, there's a problem," said Pamela Price, a lawyer and activist with the Coalition for Police Accountability who also unsuccessfully ran to be Alameda County District Attorney. "This was intended to be a five-year process. And now it's 16. The residents of Oakland are being taken for a ride, over and over again. We're going in circles, and we're not moving forward. Until the culture changes, nothing is going to change."
Federal monitor Robert Warshaw was in Oakland this week during one of his monthly visits and he expressed this very concern in court documents. The city and police "continue to struggle" with identifying problems and "most importantly to implement effective solutions," he wrote. "In the end, real change requires real change." Warshaw, who is barred by law from speaking about the case, met with police brass and appeared Wednesday before U.S. District Court Judge William Orrick, the judicial overseer of the reforms.
Orrick didn't go so far as to say that the department is backsliding. But he tempered OPD's successes, telling Chief Anne Kirkpatrick that he does not believe the department's problems have been solved, especially in terms of racial profiling. He also said he believes the end of the oversight, technically called the Negotiated Settlement Agreement, is a long ways off.
"I want to see actual progress and achieve constitutional policing," Orrick said. "I have not seen significant progress in critical areas of the NSA."
Kirkpatrick told the judge that she disagrees with this view, insisting "there has been progression, not regression… The message at OPD is clear. Enough is enough."
She added that in her opinion, her biggest challenge is not unconstitutional policing, but rather "the narrative that we are not moving forward." She then added: "We have failed in explaining our progress.
Orrick didn't appear satisfied with Kirkpatrick's answer. "I'm not interested in PR releases or status reports," he said.
Kirkpatrick then listed off several accomplishments. There has been a decrease in complaints against officers -- out of 183,996 contacts police made this year through June, she said there were only 784 complaints. And she noted a dramatic drop in the number of African-Americans stopped by police, citing a 2015 Stanford study. Last year, Oakland's murder rate dipped to its lowest level in 19 years, thanks in part, to the department's Ceasefire program. There hasn't been an officer-involved shooting in more than a year. And Kirkpatrick also said she has ordered 9,376 hours of suspensions and has terminated 14 full-time officers.
"Not all accountability is punishment," Kirkpatrick said. "Sometimes it's intervention."
Rockne Lucia, a lawyer representing the Oakland Police Office's Association, told the judge, it's not fair to blame today's officers based on the sins of the past. The rank-and-file are reforming, he insisted to the judge.
"Most of those officers weren't around during the Riders case," Lucia said. " I don't know any other way to convey the reform other than for you to visit command staff and venture over to meet with the men and women who are trying."
Orrick also took a swipe at Mayor Libby Schaaf, who praised Kirkpatrick as a leader who "has the heart to make reforms and the ability and skill to implement it."
"I appreciate your service and commend you," Orrick told Schaaf. "But from my perspective, the buck stops with you. You are the mayor. The successes and failures to comply with the NSA stops with you. They're not for the police chief to make for you; they're for you to make."
Schaaf responded on Thursday that Orrick is justified in criticizing her.
"I share the judge's frustration that we haven't made more progress," Schaaf said. She said the question shouldn't be when Oakland will get out from federal oversight, but how can OPD become "the most progressive police department." She said that work is ongoing and "it should never end."
There is hard evidence that the department has moved forward in making reforms in the last two decades. But there is also evidence that the agency is moving in the wrong direction in terms of completing individual mandates.
Six months ago, Oakland police were just shy of fully completing the last of three of 51 court-appointed "tasks" agreed upon following the Riders' court agreement. Tasks include preventing racial profiling, tracking problem officers, reporting misconduct and turning on body cameras, to name a few. In March, civil rights attorney Jim Chanin, who along with John Burris sued Oakland in the Riders case, said he thought the end of the federal oversight was close to an end. "We're slowly getting there," he said. "I think we're closer than we've ever been."
Earlier this year, Chanin pointed out that many positives have resulted because of this federal oversight: "The monitor is paid a substantial amount. And I wish that would end," Chanin conceded in the spring. "But I think when people think of how much he's paid, they should look at the number of (police abuse payout) cases that before he got here. I'd rather spend it on a monitor than on a family with someone who is dead or wounded."
But as of last month, Oakland police fell out of full compliance with seven of the tasks, slipping by four tasks in less than half a year.
"We are moving backwards at a pretty alarming speed," Chanin said, recognizing that his outlook has changed since KTVU first interviewed him in March.
The police department's most recent setbacks stem from last month's internal audit that found officers are under-reporting uses of force, like when they pull out a gun or take a suspect down to the ground druing high-risk situations, and the March 2018 fatal officer-involved shooting of Joshua Pawlik, a homeless man who was sleeping with a gun in his hand.
The audit found OPD officers failed to report use of force against a suspect in more than a third of the incidents that were studied in 2018 and every one of the unreported incidents involved a racial minority, either black or Latino.
Protests to oust the chief and vigils have been held over Pawlik's shooting death. The department's BearCat policy has come under fire because officers used the armored vehicle as a perch on which to shoot Pawlik, instead of protecting themselves behind it. And Kirkpatrick's initial exoneration of the five officers who killed him has come under hot debate as many community members, Warshaw and the civilian-led police commission all said there should have been a better plan to deal with him waking up with a gun in his hand, rather than shooting him to death. Warshaw called the chief's view of the shooting "disappointing and myopic."
Both Warshaw and the police commission are recommending the officers be fired. That prompted the police union to enter the fray and they've sued the city and the police commission, saying neither has the power to overrule the chief.
Who has the final authority -- the police commission, the federal monitor or the chief -- is now in question. "It's never been tested before," Chanin said.
Chanin had thought that the oversight might be nearing its end a couple other times in the past, too -- only to find that not to be the case.
Three years ago, Oakland police were near the end of the oversight, he said, but the Celeste Guap police sex scandal erupted, setting the department back in 2016. And before that, there was Scott Olsen, a Marine whose skull was fractured by Oakland police officers in 2011 during an Occupy protest; the city paid him $4.5 million three years later and an investigation into the use of force was launched.
Still, despite the length of time and the frustrations involved, Chanin said he and Burris are committed to seeing what they set out to do nearly two decades ago to its completion.
"We can't leave without this job being incomplete," Chanin said. "I'm 72 years old. I'd like to get out of this."
Here is a brief look at Oakland's federal oversight by the numbers:
In 2000, Delphine Allen and 118 plaintiffs sued Oakland, alleging a small band of rogue officers who nicknamed themselves the "Riders" were beating citizens and planting evidence and that superiors turned a blind eye to this behavior. Allen was represented by Jim Chanin and John Burris, two well-known civil rights attorneys.
A Negotiated Settlement Agreement was agreed on in 2003, where the plaintiffs were paid about $11 million and the department agreed to federal oversight of its reforms. The NSA was supposed to end in 2008.
As of this week, there are 1,308 court filing entries in the original Delphine Allen et al. v. Oakland case filed Dec. 7, 2000.
Since 2002, Oakland has paid $16.7 million under the Negotiated Settlement Agreement, averaging about $1 million a year, according to records provided by the city.
Over the years, police were supposed to fulfill 51 "tasks." As of August, they are shy of completing 7 of them. They are:
Task 5 Internal Affairs Division (IAD) Complaint Procedures
Task 34 Stop Data
Task 45 Consistency of Discipline
Task 2 Timeliness Standards and Compliance with IAD Investigations
Task 24 Use of Force Reporting Policy
Task 25 Use of Force Investigations and Report Responsibility
Task 30 Executive Force Review Board