Possible Oakland Police Department receivership raises many unanswered questions

John Burris and James Chanin

Lawyers John Burris and James Chanin address reporters at a press conference last week that detailed their motion to ask a federal judge to place the Oakland Police Department under federal receivership.

The Oakland Police Department has operated under the threat of federal receivership for nine years.

It began in 2000, when a rookie reported that four veteran officers who called themselves the Riders had been planting evidence, beating suspects and making false reports. The testimony became part of a criminal case against the OPD that charged the officers with kidnapping, false imprisonment, assault with a deadly weapon and filing false police reports. An Alameda County Superior Court trial eventually ended with a jury acquitting them of some charges, and deadlocking on the rest. A second trial in 2005 had the same result.

A 119-plaintiff civil case against the city of Oakland was also filed in 2000 and lasted for three years. The solution was a settlement. Oakland agreed to pay plaintiffs—mostly young men with a criminal record, usually drug-related— $10.9 million in damages and lawyers’ fees. More importantly, the police department and the 119 plaintiffs worked out a plan under which the OPD agreed to implement certain reforms meant to ensure that a Riders-like situation would never happen again. The plaintiffs’ lawyers, the court and city officials devised the terms of the negotiated settlement agreement, better known as the NSA, which details 51 departmental reforms, ranging from officer training to internal affairs investigations.

Federal District Judge Thelton Henderson appointed an independent police monitor—the NSA Independent Monitoring Team, comprised of former law enforcement officials—to supervise these changes.

Consulting firm Police Performance Solutions, LLC. led by Robert Warshaw, a former police chief who once served as the associate director of the White House Office of National Drug Control Policy, was later appointed by Henderson to take over monitoring duties from the original team.

Nine years, two monitors, two police chiefs and two mayors later, the current monitor has found that the department is only about 85 percent compliant with reforms—an assessment the police department does not dispute.

Last week, on October 5, local civil rights lawyers John Burris and James Chanin filed a motion to place the department under partial federal receivership to ensure that the last dozen reforms will be made. The city has until November to respond, and a hearing at the U.S. District Court in San Francisco is scheduled for December 13.

“This is not a happy event today,” Chanin said at a press conference October 5 to discuss the motion. “It’s not what we wanted or expected. We can’t wait any longer.”

While Oakland residents have heard the term “federal receivership” for years, it is still unclear what it would mean for the department. At an August neighborhood safety meeting with Jordan, a resident asked the chief what receivership would entail.

“No one knows what will happen if we go into federal receivership,” Jordan said. “There’s never been a police department to do this. Schools and prisons, yes, but not police.”

The term “federal receivership” is often heard in bankruptcy law when the owner of an enterprise is no longer trusted to run the business—usually because of bankruptcy—and a trustee is appointed by the court to manage the company’s assets, said Robert Weisberg, a Stanford law professor who has been following the receivership case.

This type of receivership occurred in Oakland three years ago, when the state took over the Oakland Unified School District. Opinions are mixed as to the effectiveness of that receivership, as demonstrated in reports like this 2010 account by Oakland Tribune education reporter Katy Murphy. Former Oakland schools superintendent Robert Blackburn argued, for example, that the takeover caused the mass exodus of families from the district, which is still entrenched in debt. But test scores have risen, especially in Oakland’s elementary schools.

Just as a business can be deemed incompetent in money matters, Weisberg said a government agency can also be found incompetent, usually in its capacity to act constitutionally.

This is the scenario the OPD could find itself in if Henderson decides receivership is necessary.

“In broad terms, the idea is rather simple,” Weisberg said, referring to the concept of federal receivership. “But it’s such an incredibly drastic thing, and you don’t do it until all other alternatives have been exhausted.”

When judges decide to order receivership, they also determine the evidence they want to see and the time frame in which they want it completed before the receivership can be lifted, Weisberg said.

The judge also has the right to determine the exact role of the receiver, Chanin said in a phone interview Thursday. As a longtime Oakland resident, he said he, personally, would want the receiver to monitor the upper ranks of the OPD by observing the chief, deputy chiefs and assistant chiefs at work, and pointing out when these officials fail to perform their duties. Unlike the current monitoring situation, the receiver would have the authority to enforce changes he or she thought necessary, Chanin said. By giving top-ranked officials the tools and guidance to reform the department, Chanin said, he hopes the receiver would create sustainable change that would be effective even after receivership is lifted.

“After [the receiver] left, it would be back to the same old people doing the same old thing,” Chanin said, referring to a scenario in which NSA compliance was achieved with the aid of outside consultants. “The thing is not to get it right by hiring all these outside people, but to make them (the OPD) do it right.”

Methods of reform could vary dramatically, depending on the receiver and his or her interpretation of best compliance practices.

If the OPD went into federal receivership, the judge-appointed receiver could be someone notable in the law enforcement field, such as a former police chief, Weisberg said. Knowledge of police work would be beneficial in making these reforms and understanding the OPD, he said.

The actual division of labor between the receiver and OPD Police Chief Howard Jordan could be an issue of contention. Chanin said he did not envision the receiver becoming involved in day-to-day operations of the police department, such as answering calls about burglaries or assisting with filing police reports. Similarly, he said he did not think the receiver would address wages for police officers or policies outside the NSA, such as crowd control. Instead, he said he thought the receiver’s responsibilities would be confined to and focused on issues related to NSA compliance, such as internal affairs management.

Replacement of top personnel could also be a possibility, Chanin said during the press conference.

Burris and Chanin said during the press conference that their motion for receivership is not a vendetta against Jordan, but rather an attempt to keep the OPD accountable.

“We’re looking at systemic change,” Chanin said at the meeting. “If the police chief is in the way of that, the receiver has the power to get rid of him.”

The consequences of receivership could also trickle down the ranks and affect morale, Weisberg said. “It may be the best way to remedy the constitutional violation, but it’s lousy for any organization’s morale to have an outsider come in,” Weisberg said in an email.

Receivership could also shift OPD accountability away from the mayor, City Council and police officers’ union and toward the court instead, said David Sklansky, law professor at the UC Berkeley School of Law.

“On the one hand, that means you have a police department that, at the top, is less politically responsive,” he said, referring to an OPD under federal receivership. “On the other hand, you could have a police department where the leadership has a freer hand to implement reforms because there are fewer people the department is beholden to.”

Community engagement and accountability would likely not be decreased, he said.

“A good receiver will want to make sure the department expands its community outreach effort,” he said.

OPD spokesperson Sgt. Chris Bolton, said the department would not comment on the motion for partial receivership until it had submitted a response to Chanin and Burris’s request by the November 8 deadline.

Both Jordan and Mayor Jean Quan said in a press release last week that they also would not comment on the motion for partial receivership until city officials met with legal counsel. But both released statements on the idea of federal receivership.

“We’re all working to move in the same direction, which is full compliance,” Jordan wrote. “It’s not been easy. It’s been challenging. But no one here [is] ducking from the responsibilities we have. We all want the same thing. Judge Henderson wants the same thing, and I want the same thing: constitutional policing in Oakland.”

Quan acknowledged and praised the number of reforms already made by the department.

“This is a hard time to fight crime in Oakland, and the vast majority of our officers are doing amazing, brave work under tough circumstances,” she wrote. “I am proud of the progress they have made, together with Chief Jordan and the rest of OPD leadership, in complying with more and more NSA tasks.”

Burris had a different view of the compliance efforts visible so far. “In [OPD’s] mind, the Oakland way was the proper way,” he said at last week’s press conference. “We don’t know ultimately if this is going to work. But we can’t keep going down the same path. We have to make a change.”

With the uncertainty of receivership and the particular unknowns of police receivership, it is difficult to predict exact pros and cons. The 2005 receivership of the California Prison Healthcare Services may be the closest case to the OPD’s situation, because of its similar focus on constitutional rights rather than handling of finances, Weisberg said.

In 2001, a class action lawsuit was brought against the California Department of Corrections and Rehabilitation after an inmate said injuries he sustained in prison were ignored and exacerbated because of healthcare neglect, according to a 67-page medical complaint. The case—Plata vs. Davis/Schwarzenegger—is the largest prison class action lawsuit ever filed, and charged the California Department of Corrections and Rehabilitation with inflicting cruel and unusual punishment.

After one year, the state and the plaintiffs reached a settlement in which the state promised to drastically improve healthcare in prisons. When those conditions were not met, U.S. District Judge Henderson mandated receivership in 2005 and appointed Robert Sillen, a veteran in the field of public health, as receiver a year later.

In 2008, Sillen was replaced by J. Clark Kelso, a lawyer with a reputation for turning around government organizations in crisis, after Henderson said the reform process was moving too slowly and in “too confrontational a manner,” according to a Los Angeles Times article.

The state filed a motion this past September to dissolve the receivership of the prison system, but it was denied by Henderson, who said the state had not given adequate evidence that it was committed to a constitutionally compliant system.

In terms of cost, Chanin said the prison healthcare case is not similar to OPD’s possible receivership. During the takeover, California has doubled the amount of money spent on prison healthcare over five years, to $15,000 per inmate annually, according to the Associated Press. In 2011, the total spending was $1.8 billion. Much of the funding went toward pharmaceuticals, better facilities and higher salaries to attract more competent medical professionals.

Chanin said he did not anticipate the cost of a receiver for OPD to be as much, simply because Oakland is a smaller department and there is no need for a high number of hires to fix the NSA compliance.

“That’s a lack-of-service case,” he said, referring to the prison healthcare takeover. “This is a quality-of-service case.”

In general, the prison healthcare receivership has gone well, Weisberg said.

But the relative success of the prison healthcare takeover isn’t necessarily an indication of OPD’s future, should it go under receivership, Weisberg said.

“Even within prison, it’s a medical bureaucracy—it’s running a healthcare system and there are people all across the country who know how to run a healthcare system,” he said. “I think the police department is a much harder nut to crack.”

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