Q&A with Federal Judge Thelton Henderson about the Oakland police case, his career
on January 28, 2013
Federal district court judge Thelton Henderson is one of the biggest names in Oakland right now, as the city waits to see who he will appoint to take over parts of the city’s police department as part of an infamous 13-year legal battle that nearly thrust the Oakland Police Department into federal control.
Henderson, a federal judge in the Northern district court of California, has presided over the case for a decade, nearly since its beginning, when the city settled a civil suit regarding the Riders, a group of four veteran Oakland officers who were accused of planting evidence, making false police reports and beating suspects. The result was a $10 million settlement paid by the city to 119 plaintiffs—mostly young men with drug-related criminal records.
Part of the settlement also included a Negotiated Settlement Agreement (NSA), under which the department promised to make more than four dozen reforms to prevent future abuses. A consent decree—the outcome of the settlement—details 51 departmental reforms, ranging from increased oversight of officers to faster processing of internal affairs investigations to ensuring appropriate conduct in the field, such as when officers make traffic stops.
Over the years, the department has inched slowly toward completing all of the tasks, but the process has taken far longer than originally thought, even with a federal monitor appointed by Henderson tracking the progress. In 2008 Henderson extended the amount of time OPD had to complete the tasks. But after nine years, two different monitoring teams, two police chiefs and two mayors, OPD has yet to successfully complete the reforms. In a report filed at the end of 2012, the monitor–Robert Warshaw—found that the department had backslid on a reform involving the early identification and tracking of problem-prone officers.
Late last year, attorneys for the plaintiffs filed a motion with Henderson for a federal takeover of OPD, an unprecedented move. While several police departments have had federal monitors, never has one ceded control to a federal receiver.
But in December, the city and the attorneys reached an agreement: Appoint a person called a “compliance director” to oversee the reforms. The compliance director will report straight to Henderson, with hiring and firing power over the chief and authority to spend hundreds of thousands in city funds, thus forestalling a total federal takeover. Henderson signed off on the agreement, and has sole power over who the compliance director will be, though both parties can submit applicants and have currently done so. The compliance director and the monitor, Warshaw, will both be tracking Oakland’s progress.
Henderson is no stranger to the spotlight. He was the first African American civil rights attorney for the U.S. justice department in the early 1960s, but famously lost his job after he let Martin Luther King Jr. borrow his car—critics felt he was too cozy with the civil rights movement. As a judge in 1996, he declared California’s Proposition 209, which banned affirmative action in state agencies, unconstitutional. The ruling resulted in significant political controversy and was ultimately reversed by a higher court. In 2005, Henderson put the California prison health care under federal control, appointing a receiver that would address inadequate care in the system.
Henderson regularly gives interviews to reporters and sat down with Oakland North to talk about this case and his career. This interview has been lightly edited for length and to clarify the questions posed by Oakland North.
ON: How did you get put on this case?
TH: I’ll explain how cases are generally assigned to federal judges. When a case is taken down to the clerk’s office, it’s assigned a classification. There are 17 classes of cases—maritime case, civil rights case, anti-trust case, intellectual property. Once it’s assigned that, our computers are set up to assign that case randomly to one of the judges on the court. So we all get our cases, our caseload, in this random fashion. … [But] I didn’t get my case that way. It wasn’t originally assigned to me, it was assigned to another judge who retired, and when that judge retires, that judge’s cases go back in the machine and are reassigned. So I got this case by a random reassignment after the judge who had it originally retired.
It was very early on, I think maybe a year and a half or something like that into the case.
ON: When you got the case, did you have any idea it would be this long and complex?
TH: I had no idea whatsoever that it would last this long. When I got it I knew very little about it of course, and had never had a case like this one where I found myself enforcing a consent decree relating to a police department. I didn’t know what to expect, but I knew from my general judicial experience that consent decrees are drawn up by the parties to the litigation—including the defendants—that they draw up something that can be accomplished. I assumed that this would be a case that would go along like lots of these enforcement cases that I get where a lot of the compliance is grudging, and it doesn’t go as fast as a judge thinks it should, where everybody jumps in and says ‘Oh gee golly, this is great, we’re going to be a better force, and let’s all do it right.’ If that always happened, these things would whiz by. … So I knew that when I got this case, but never in my wildest days would I imagine that 10 years later we would still be grappling with this.
ON: How did this case compare to the prison healthcare receivership case?
TH: They are substantially different. In one way they are different in just the size—the California prison system is the largest prison system in the country … But I think the legal difference, in my mind, was that to appoint a receiver to run a police department becomes dramatically different than running a health system in a prison, because in the prison case you can appoint a receiver with medical administration experience, you can set salaries for doctors, you can use techniques to recruit doctors to unattractive prison towns. All of that is kind of practical experience without any real repercussions, other than monetary repercussions for salaries and putting in services that didn’t make sense.
The police case is unique because there are public safety ramifications which have to be put on the scale and are much harder to quantify. It was a concern of mine as to what the public safety ramifications might be should you appoint a receiver.
ON: How did we get to this point in the case? Is there something unique about the city of Oakland that brought on this unprecedented possibility of federal oversight?
TH: I think we’ve gotten here because the city and in this case the police department has been ineffective in meeting the requirements of the consent decree. They just have not in 10 years been able to do the things that the monitors have asked them to do in order to get in compliance. I think it’s unusual for a consent decree to last this long. One of the interesting things it seems to me is the fact that the city government, in particularly a city like Oakland, which is not the wealthiest city around, I would have thought that the leadership would look at the numbers and say ‘We’ve been paying hundreds of thousands of dollars to monitors for 10 years. Hey, let’s step in here.’ And it hasn’t done that.
I can’t tell you. You’ll have to talk to someone else who will tell you. Maybe it’s the nature of that city’s government. I don’t think so. I think that some kind of leadership might have moved this along faster, but I don’t know.
ON: Obviously one of the number one concerns for city residents is crime. Do you see this whole consent decree process, with the compliance director and monitor, having an effect on reducing crime in the future, versus being purely an institutional change?
TH: I just don’t know. The things that are being addressed in the consent decree, as best I can tell, aren’t necessarily things that will reduce crime. For example—I get this from the papers and not from any inside info I have as a judge—I recently read that someone has criticized the police force for having astonishingly low percentage of arrests when there are crimes committed. That’s not a part of the consent decree; that seems to be a training matter for the police department. There’s much said about not having enough policemen. Those seem to be clearer indices of crime in Oakland than the consent decree. There’s undoubtedly some remote relationship, but maybe the one that relates the most, [is] there’s a big issue of community perception of the police. I don’t know if that translates into crime, but I think it translates into cooperation with the police and those kinds of things.
ON: Is there a difference between a compliance director, a position city officials suggested as part of their settlement talks, and a federal receiver, which is what the attorneys who brought this suit originally wanted?
TH: There is a distinction between the compliance director as presently contemplated in that agreement and a receiver. Just to give you an example, the receiver that I appointed in the prison case, for example, in raising salaries has the power to contravene state law. If state law says you have to bid to buy medical supplies, the receiver doesn’t have to bid. The compliance director doesn’t have those kinds of powers.
ON: What qualities might you look for in a compliance director?
TH: I think the compliance director has to be someone with a comprehensive understanding of police practices, a comprehensive understanding of police work, and what it means to be a police officer, the paramilitary structure and the thinking of such organizations. It has to be someone with strong leadership abilities who can say, ‘I’m coming in to take this important position and I’m going to lead you to compliance that you’ve been struggling with for 10 years, and it’s not going to take 10 years under me.’ I think those are two of the most important things.
ON: Critics say this process has negatively affected how police officers can police. For example, in a December 9 Oakland Tribune article, a former OPD lieutenant is quoted as saying “Cops are holding back because they’re afraid of getting in trouble.” How would you respond?
I would respond by saying other police departments of similar size, with similar consent decrees have been able to do it. I think that’s the answer. If you want to do it, you can do it. These people would make you think that if you do a traffic stop, you’ve got to write [documentation] for half an hour. It’s not a big deal. For example, for one of the requirements, you have to explain why you stopped the car. “Broken tail-light.” How long did that take to write? Five seconds maybe. The race—Asian, Hispanic, African American—and few other things like that is what you have to do. That doesn’t keep you from going and stopping crime down on the next block. I think it’s overstated.
ON: Did you have prior experience learning about the workings of a police department? How is the learning process?
TH: I’m not sure I can honestly say I’ve learned how a police department operates. It’s the same thing that lawyers do … They get a, let’s say, a fraud case. They learn enough about the fraud and the industry to put on their case. They don’t learn everything about that business. It’s the same with judges, I think. I’ve learned enough about the Oakland Police Department and police departments in general to make rulings on the things that have come before me, and I have limited my inquiries into these things to the task at hand: What it takes to understand this department in order to administer this consent decree?
ON: Has any part of this case been difficult for you?
TH: I don’t think so. Things have surprised me along the way. I wasn’t aware that the leadership of the Oakland Police Department isn’t in the union with the line officers out there.
ON: The compliance director has many powers traditionally exclusively held by city officials and leaders of the police department. How do you envision compliance director working with these officials? Do you foresee any tensions?
TH: I don’t see any difficulties. I think you put your finger on it—those lines of authority have to be clear. That’s something, when I interview the candidates I will indicate what those lines are and make sure that the person who gets the position clearly understands … what his—and I’m saying “his” here [because] at least at present there are no female candidates for the job—mission is, what lines he cannot step over. He’ll have to understand his role in this, as opposed to the present monitor’s role, and understand that the monitor’s role will continue to be auditing the consent decree and reporting to me on that.
But I would expect the compliance director to work cooperatively with the mayor, the city administrator, with the police chief. One of the qualities I said I’m looking for is someone who can do that. Someone who can say, “We’re all in this together. Let me lead you or let us join ranks and go shoulder to shoulder to lead this city and the police department out of this mess.”
ON: What has been the most remarkable moment of your career?
TH: That’s a tough one. There have been a number. Let me fudge on that and say it would be one of a number of amazing things that happened to me right out of law school when I went to work for the [U.S. Department of Justice] civil rights division, and I found myself down south in the middle of the civil rights movement, hanging out with Martin Luther King Jr. and Medgar Evers and people that are now in our history books and our Black History Month videos.
It was an amazing experience learning how serious that struggle was down there, learning how dangerous that struggle was down there, realizing that my intellectual understanding of segregation as a boy growing up in a black neighborhood in Los Angeles was dramatically different from what I actually saw down there, and starting to understand that difference.
Something as simple as walking into a doctor’s office in Selma and seeing that thing there was amazing. [Henderson reads aloud a copy of the flyer he saw in that doctor’s office, which now is displayed in his chambers.] ”Ask yourself this important question, what have I done personally to maintain segregation?” And it was out there! I sort of thought, OK they sort of hide behind this and whisper in rooms about this. But there it is in a little flyer. Learning about that kind of thing was an amazing experience for me.
ON: What about the most difficult or challenging moment of your career?
I think it was probably when I lost my job for the same thing. It was a low period in my life, and coming back to California with my tail between my legs, feeling this was my first job out of law school and it didn’t work out. That’s saying it lightly. It failed, probably would be a more accurate thing. And picking myself up and resurrecting my career, if that’s the right word, to the point where I think I’ve come all the way back.
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Interesting interview but a couple of things surprised me. The author said that the NSA has not been fulfilled over the period of 2 mayors and 2 police chiefs, but of course, the NSA was agreed to under Mayor Jerry Brown (near the end of his first term), continued under one term of Ron Dellums and half of Mayor Quan’s term. There have been at least as many police chiefs, Word, Tucker, and Batts.
I was disappointed also that the author didn’t delve further into the judge’s comment that “I wasn’t aware that the leadership of the Oakland Police Department isn’t in the union with the line officers out there.” More on that please.
I’m amazed by the Judge, in answering the Q: “Do you see this whole consent decree process…having an effect on reducing crime…?” answering:
“I just don’t know. The things that are being addressed in the consent decree, as best I can tell, aren’t necessarily things that will reduce crime. For example—I get this from the papers and not from any inside info I have as a judge—I recently read that someone has criticized the police force for having astonishingly low percentage of arrests when there are crimes committed. That’s not a part of the consent decree”
One number: as a result of the NSA there are more Investigators in Internal Affairs than any other segment of Investigations…How can that not have an affect on crime?
If that’s not beholden of the NSA, is the Judge allowing the City to reassign Investigators? Maybe then the City should…
This process started out wrong. For two years nothing was being done to come in compliance. Those responsible we’re not held accountable. From that point on strong leadership was needed, but could not be found. Chief Ron Davis, should have been sought and hired to lead OPD through this process. There is still hope that this could occur, if the judge and the city can come together.
My understanding is that it wasn’t the judge or the NSA contract itself that specified uniformed officers be the ones who staffed on the augmented Internal Affairs. That was an OPD, OPOA, and elected official decision.
While the Judge almost seems naive about the impact of his decision on crime, his point is that there was nothing special about his order when other cities expeditiously dealt with similar court orders.
What other cities do you mean Len?
The only one I know of is L.A., and Bratton didn’t use civilians to take over IAD there. So, where’s the comparison?
Also, what other cities use non-sworn officers to staff IAD?