Friday, February 15, 2013

Feds: City's motion to vacate NOPD consent decree is "cynical," full of inaccuracies

Posted By on Fri, Feb 15, 2013 at 5:59 PM

In a response to the City of New Orleans' recent motion to void the New Orleans Police Department (NOPD) consent decree, the U.S. Department of Justice (DOJ) today filed a motion in opposition, repeatedly citing Mayor Mitch Landrieu's many calls to reform the police department and arguing that the city has a responsibility to ensure constitutional policing, even if that will lead to increased costs for city government.

"In the past, the City has attempted to implement reforms to change NOPD’s culture without federal court intervention. None of the City’s efforts to reform NOPD on its own have been successful," reads an introductory passage in DOJ's response. "The people of New Orleans continue to seek meaningful, sustainable reform of the New Orleans Police Department, and until this recent dispute, New Orleans city leadership has been a strong supporter of this effort."

Late last month, the city moved to vacate the consent decree, a significant turnaround for Landrieu, who had been a leading proponent of federal intervention in the NOPD since he assumed office in 2010.

Read a 2010 letter from Landrieu to Attorney General Eric Holder: Ex._A.pdf

In its motion, the city alleged federal misconduct in the years-long lead-up to the agreement's final approval by U.S. DIstrict Court Judge Susie Morgan on Jan. 11.

The city's argument relied on three main points, including the involvement of disgraced former Assistant U.S. Attorney Sal Perricone as a "point person" during negotiations. Perricone resigned his position last year after it was revealed he was anonymously posting belittling, and sometimes revelatory, comments on Nola.com related to cases his office was investigating or prosecuting. According to the city's motion, Perricone was an applicant for chief of police, a position he lost to Superintendent Ronal Serpas. As a result, the city claims, Perricone's often negative comments about the police department betrayed bias and a potential ulterior motive for his involvement in consent decree negotiations.

"These factual assertions by the City are egregiously distorted," says DOJ in its filing.

Probably the important objection involved the cost of the consent decree — estimated at $55 million over five years — taken along with another pending consent decree for Orleans Parish Prison, which DOJ was negotiating simultaneously. The city argued that the feds improperly failed to disclose the costs of the jail reforms — more than $30 million, it claims in court filings — until after the NOPD agreement was complete.

Landrieu has criticized the two consent decrees as "unfunded mandates" from the federal government. He warned that their combined expenses could force the city to furlough its entire workforce.

DOJ dismissed the cost-based argument today as a "cynical attempt to gain leverage in its case involving the Orleans Parish Sheriff."

"The City cannot invoke its obligations to provide constitutional conditions within OPP as a basis to avoid its obligations to provide constitutional policing within New Orleans." (This echoes a recent ruling by Morgan, denying a city request to delay implementation.)

The feds also deny that the city was kept in the dark about OPP consent decree costs, presenting as evidence an emailed breakdown of estimated costs from the sheriff's attorneys to the City Attorney's Office from before the July 24, 2012 unveiling of the agreement. Read: Ex._J_.pdf

"There is no justification for the City’s inexplicable claim that the United States withheld any cost information from the City," the feds' response reads. "Nor can the City now plausibly claim to be surprised as to the potential scope of its liability in the OPP litigation. The City has been fully involved in every phase of the United States’ efforts to reform the unconstitutional conditions within OPP, and was entirely aware of the OPP matter at the time it signed the NOPD Decree."

Finally, the DOJ notes the number of federal criminal justice grants the city receives, some $21 million since 2009, the filing says.

The DOJ response characterized the Perricone objection as "a strawman," saying the city "vastly overstates the role Mr. Perricone played in this matter." Rather than a primary negotiator, he was a liaison, much like the NOPD's Daniel Cazenave.

Furthermore, the response points out, Perricone isn't new evidence. He was outed and resigned in March of last year, well before the consent decree was finalized.

"The United States in no way condones Mr. Perricone’s conduct, which, appropriately, is being investigated by DOJ’s Office of Professional Responsibility. Nonetheless, that conduct does not change the fact that the City freely entered this Decree to correct the pattern of unconstitutional conduct established by the United States’ investigation, and thus provides no grounds to vacate the Decree."

The city also objected to the consent-decree mandated Office of Secondary Employment may violate the Fair Labor Standards Act. The motion to vacate didn't say why Secondary Employment — a retooling of the paid detail system — might violate labor law, but it did include a letter from the Police Association of New Orleans citing a concern that, because details were being centralized to City Hall, the NOPD might have to pay overtime on detail hours. The city also notes that DOJ failed to obtain an opinion from the Department of Labor on the FLSA issue.

"...the City contends that, after discussing the matter for over a year, it has suddenly become aware of a potential conflict between the Secondary Employment section of the Decree and the Fair Labor Standards Act," the response reads. "The City has provided no facts to support this purported concern, and can cite no law that would support vacating the entire Decree even if it were true that one discrete section of the Decree needed edits."

As for the Department of Labor opinion, DOJ provides it. It says the city can exclude detail hours from overtime calculations. Read: ex._k.pdf

Read the full response: FedResponseVacate.pdf

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