Friday, September 21, 2012

After daylong consent decree hearing, still no indication of when judge may sign

Posted By on Fri, Sep 21, 2012 at 7:57 PM

The fairness hearing on the merits of the proposed New Orleans Police Department (NOPD) Consent Decree began at 10 a.m. and did not adjourn until after 5 p.m. today. And still, after hearing hours of testimony from a wide-ranging group — including Deputy Assistant Attorney (and lead attorney in consent decree litigation) General Roy Austin, NOPD Superintendent Ronal Serpas, Jasmine Groves (daughter of Kimberly Groves) and Delmy Palencia — U.S. District Court Judge Susie Morgan left the hearing open pending additional questions, and did not give any indication when she might approve the long-awaited agreement for implementation.

Morgan heard representatives from all four groups who had earlier attempted (unsuccessfully) to intervene in the federal litigation leading up to the consent decree's approval.

New Orleans Independent Police Monitor Susan Hutson said the agreement as written did not provide enough outside oversight of the police. She noted that her office was already taking hundreds of complaints annually directly from residents and conducting scores of investigations.

"All with a staff of four," she said. "My staff is a dedicated staff. We are four people trying to fill the role of many."

She asked that her office be given additional responsibilities in the agreement, noting that she had previous experience in the Los Angeles Police Department's Office of Inspector General, while that department was under a consent decree, and said that the agreement was too dependent on NOPD internal investigations of wrongdoing, exclusive of the larger community.

Of the LAPD's consent decree, Hutson said, "In no small part it was so successful because of the community's involvement."

(More after the jump)

Jasmine Groves, whose mother Kim Groves was murdered by Paul Hardy — a hitman working for NOPD officer Len Davis — in 1994, testified on Hutson's behalf.

"My family has lived through the horror of what it means to have a police department that's out of control," Groves said. "I support the consent decree. Maybe if there had been a consent decree in 1994, my mother would be alive today."

However, she said, she thought Hutson's office should have a bigger role, specifically in investigating citizen complaints.

"[The IPM's office] is the only place in New Orleans that people feel they can safely go when the have been mistreated by police officers," she said.

Austin, however, said that Hutson is vital to the agreement. The city and DOJ recently changed some language in the agreement, which as first written, seemed to make Hutson's office subordinate to the contracted federal monitor. Now, the (yet-to-be-hired) monitor will be required to share information with Hutson, and Hutson is urged (but not required) to reciprocate.

"The Independent Police Monitor is going to be a part," he said. "She's going to work with the [federal] monitor."

Also asking for a larger citizen role were members of Community United for Change (CUC). W.C. Johnson said the consent decree, as written, is "spun from political expediency" rather than an honest, studied assessment of the NOPD's problems. CUC is calling for a civilian oversight board as part of the agreement.

"Police policing themselves does not work, has never worked in a corrupt culture," Johnson said.

Morgan did indicate she may have some concerns about the consent decree. She repeatedly asked about complaints, from the Fraternal Order of Police (FOP) and the Police Association of New Orleans (PANO), that proposed provisions calling for new personnel policies might conflict with established protections under the city's civil service rules. The city has denied, in earlier court filings, that the requirements would interfere with civil service rules.

"As that very argument was being made, unbeknownst to us at the time," the city was in the midst of drafting a plan to overhaul civil service, said PANO attorney Eric Hessler.

In a previous ruling, Morgan denied the two officers' associations, along with the Office of the Independent Police Monitor and Community United for Change, the right to intervene in consent decree litigation. [FOP is appealing that ruling and requesting that Morgan delay her decision while the appeal is pending.] She noted, however, that she would reconsider interventions for PANO and FOP if the city were using the consent decree to get around civil service.

"The civil service rules are mentioned in the consent decree, and that's what I'm concerned about, because there appears to be some overlap," Morgan said.

Another was a requirement that all patrol cars be fitted with cameras. Malcolm Suber, who testified for the group CUC, asked that the agreement go even further, requiring officers to where recording devices on their person.

"This would verify they're policing unconstitutionally," Suber said.

Attorneys for the U.S. Department of Justice conceded that many departments have already adopted lapel cameras for patrol officers. DOJ attorney Christy Lopez said the patrol car camera were arrived at during negotiations between the city and the federal government. Lapel cameras might have been prohibitively expensive, she said.

The DOJ's witnesses, speaking in favor of the decree, included Ira Thomas, a retired NOPD lieutenant, testified about excessive force investigations during his time as a police officer. He described one incident (in 2001-2002) where two officers wanted to report a lieutenant to the Public Integrity Bureau (PIB) for beating a young man. Thomas, then president of the Black Organization of Police, told the officers they would have his support.

Months later, though, he found that an investigation had not gone forward. What's more, he said, the lieutenant in question had not been taken off the street, even though he was facing what could be a criminal complaint. He said the department's upper management would only comply with department policy when he threatened to go to the media. The lieutenant was transferred to new duties, and he used the department to retaliate against Thomas and the two officers, spreading their reputation as "rats."

Thomas said he didn't believe the department would be able to reform without an agreement like the proposed consent decree.

The DOJ also called members of the Congress of Day Laborers Delmy Palencia and Santos Alvarado, who said that many migrant workers are scared to contact police because they are asked about their immigration statuses, which the consent decree would prohibit. It would also require more Spanish and Vietnamese-fluent interpreters.

"We can't do anything. If you cry, if you laugh, they find a pretext. If a civilian calls the police, they come and run us off," he said.

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