Dan Levine, 03/09/12
After weeks of raucous street demonstrations, Oakland city leaders finally decided one chilly morning last fall to remove a downtown campsite that had become a national symbol of the Occupy movement. Protesters made makeshift gas masks and braced for a fight with the much-maligned Oakland Police Department.
But police cleared the camp without incident. A middle-aged white woman facing the brawny police cordon gave her reason for the calm on a placard she carried: “Judge Thelton Henderson is watching.”
A veteran federal judge, Henderson has been struggling for nearly 10 years to implement police reforms in the gritty industrial city on California’s San Francisco Bay.
Now, five decades after Henderson entered American civil rights lore as a young Department of Justice lawyer who lost his job for lending Martin Luther King Jr. his car, he appears to be laying the groundwork for the first-ever court takeover of an American police department in recent memory.
But it is not as if he supports some of the protesters’ methods, either. In an interview with Reuters, he called Occupy a “huge distraction” for the police and criticized demonstrators who lit fires and ransacked City Hall earlier this year.
“Unless they want anarchy or some sort of chaos, it’s hard to imagine what their motivation is,” Henderson said.
Laleh Behbehanian, a member of Occupy Oakland’s Anti-Repression Committee, said incidents of window breaking and violence were vastly overblown by the police, in order to justify excessive force.
Beyond the Occupy movement, Henderson views the Oakland police department as “a force unto itself” that defies civilian management. He has overseen a 2003 legal settlement of a case in which police allegedly planted evidence and beat suspects, and he is getting impatient.
As he contemplates an unprecedented use of judicial power, the 78-year-old judge is coping with a degenerative ailment that has put him in a wheelchair. Lest any city official think this has blunted his determination, though, he made clear he has no plans to back off. “I’m not going away,” he said.
Under the 2003 settlement of what was known as the Riders case, the city of Oakland agreed to 51 police reforms, including changes in the way officers are investigated and disciplined, along with measures designed to stop racial profiling.
But nearly a decade later, bad cops are still tolerated and even promoted, attorneys who represent plaintiffs in the case allege. “Every department has bad cops. It’s what you do with those bad cops,” said one of those attorneys, James Chanin.
The plaintiffs, in a January filing, cite a case where a police officer fabricated a report to justify excessive force, and a U.S. magistrate fined him $20,000. He was promoted to sergeant two years later.
Rockne Lucia Jr., who represents the Oakland police union, said plaintiff lawyers don’t have all the information the chief does when he considers promotions. And lawyers for the city argued in court filings that new leadership in the city, including a new police chief, bode well for reform.
“The police department is different than it was over eight years ago,” Mayor Jean Quan’s administration responded in court filings. “The culture has changed, albeit more is needed.”
It may be helpful that Henderson has a knack for seeing through posturing.
Nearly 20 years ago, the judge walked into Pelican Bay prison, where some of the convicts alleged abuse by guards. Henderson and his clerks went to see the place for themselves.
Along the way, Henderson ascended a watchtower to look out over the yards where prisoners assembled. Then shouts broke out. Armed guards ordered Henderson’s team to drop to the floor and opened fire over the melee.
Ed Swanson, one of Henderson’s clerks, remembers his own fear of being trapped in a prison riot. The judge kept calm, he recalled. In the car leaving the prison, Henderson turned to his clerks. “So who of you thought that was staged?” he asked.
A later criminal trial established that the guards did enable the disturbance to show Henderson how dangerous the prison was. “I tend not to believe in weird coincidences,” Henderson said.
FULL COURT PRESS
Henderson grew up in Los Angeles, his mother a domestic worker, his father a janitor. After graduating from law school in 1962, he accepted a job with the Department of Justice, monitoring civil rights protests in the Deep South.
He was the first African-American attorney in the civil rights division to investigate cases, but his stint ended after he loaned Martin Luther King Jr. his car. Southern authorities traced the license plate to the Justice Department and said the federal government was taking sides. Henderson had to resign.
In Northern California, the civil rights movement took expression in the militant Black Panther Party, partly in response to deep-seated racism in the Oakland Police Department. Henderson, meanwhile, became an assistant dean at Stanford Law School, tasked with increasing minority enrollment.
President Jimmy Carter nominated him for the bench in 1980. Downtown Oakland is visible across the bay from his chambers in the San Francisco federal building, where he has presided since.
Soon after his appointment, Henderson learned he had inclusion body myositis, an incurable condition in which the immune system has identified his muscles as a foreign object.
He can still use a walker on occasion, but a courtroom has been rebuilt to accommodate his electric wheelchair. Henderson leans over and uses both hands to stretch one leg after the other onto an end table, and rocks his feet back and forth as he talks.
NO SCHOOL FOR THIS
Reform in Oakland has stalled, Henderson says, and police monitor Robert Warshaw recently disclosed one reason: an unusually high number of internal affairs investigations were being closed as “unfounded,” which clears a cop’s record.
Warshaw is also preparing a report on the department’s handling of Occupy. Thinking back to the 1960s, Henderson remembers observing one protest in Birmingham, Alabama, from the seventh floor of a building. Protesters stormed into the room and hurled a trash can out the window, to the street where a group of police officers stood.
“The police looked up and fired up. It was just crazy,” he said. “I got out of there and I was scared to death.”
Henderson says the behavior of some Occupy protesters in Oakland reminded him of the incident. “It does nothing but piss off the police,” he said.
At the end of January, Henderson increased Warshaw’s authority, allowing the monitor to petition the court to countermand individual orders of Oakland’s new police chief, Howard Jordan. But the judge held back from taking over day-to-day operations of the department, writing that he hoped “these intermediate measures will be sufficient.”
During the interview a few weeks later, he added that he would not hesitate to install a receiver if the city did not improve. Henderson declined to reveal whether he thought such an appointment was likely.
There is no precedent in recent memory for a federal judge to take over a major police department, though plaintiff lawyers argue that Henderson’s own takeover of the state prison health system in 2005 shows he has the authority to do it.
Robert Weisberg, a professor at Stanford Law School, said that by first taking the less drastic route and increasing Warshaw’s authority, Henderson is protecting an Oakland police takeover from getting thrown out on appeal.
Henderson’s overriding objective is to change the culture of the department, of which discipline is just one part. “It ain’t just, say, ‘Change your culture or I’m going to put you in jail,'” he said, adding: “It’s very complex. They didn’t teach me that in judge’s school. I have to learn it.”
Henderson is talking to management consultants to figure out how to change organizational cultures.
“It probably should be simple,” he said. But he compared it to the school integration civil rights battle, which has torn up the nation for decades with plans like busing kids between schools to raise diversity.
“It should have been simple to say, ‘Okay, ah, you got this black school that’s separate and very unequal, and you got this white school. Work it out so that this school is as good as that one, and it’s integrated.'”
Henderson smiled. “That’s simple.”