The plaintiffs in the Orleans Parish Prison (OPP) consent decree case today dismissed the argument that a consent decree for the jail would force city government to write a "blank check" to the Orleans Parish Sheriff's Office, the city's main objection to a proposed consent decree for the jail. In contrast, the plaintiffs say in a new court filing, the decree will ensure that the city actually knows what it's spending its money on.
"As opposed to a 'blank check,' the Proposed Consent Judgment is giving the City, perhaps for the first time, a clear idea of how and where funds for OPP will be spent, says the reply, filed by the U.S. Department of Justice and the Southern Poverty Law Center on behalf of OPP inmates.
The plaintiffs argue that the city has thus far chosen to keep blindly funding the prison without demanding better accountability — through the annual budget process or through its party status in Hamilton v. Morial, a lawsuit that resulted in the current per diem rate — even after it had been made aware of the alleged abusive conditions there.
"The City has been formally on notice of deficient conditions at OPP since at least the United States’ 2009 Findings Letter. Since that time, the City has shelled out tens of millions of taxpayer dollars to a constitutionally deficient facility, where people continued to be seriously injured and die. The City took no steps to protest, intervene, seek relief or remedy the conditions."
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The city of New Orleans yesterday filed a pleading in federal court opposing the final approval of the Orleans Parish Prison federal consent decree. While the city is committed to protecting the constitutional rights of inmates in OPP, it says, it objects to being tied to a consent decree while funding remains a question. The court has scheduled a hearing to determine the fairness and necessity of the consent decree for April 1. A hearing on paying for it — how much and who is responsible — is not scheduled until late May.
"...it is respectfully submitted that review of the proposed Consent Decree cannot be cleanly segregated from the funding hearing," reads the filing.
In July, the sheriff's office informed the city that estimated additional costs to bring the jail into compliance could run as much as $45 million in city dollars for the 2013 fiscal year, an increase of about $23 million from its current per prisoner per day general fund allocation. The filing says such and increase would force it to "lay off more than 600 employees or begin furloughing employees for periods in excess of thirty days."
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Mayor Mitch Landrieu predicted last month that he and Sheriff Marlin Gusman would have a falling out over the cost of the proposed federal consent decree for Orleans Parish Prison (OPP). It’s time for that fight to happen, and not just because of money.
City Hall and the sheriff’s office have long had a testy relationship, owing largely to the fact that the city must pay a huge chunk of the sheriff’s budget without any say in how the jail is run.
Now the stakes are much higher than money. The feds last year joined a lawsuit by the Southern Poverty Law Center (SPLC) against Gusman, alleging that he runs a jail so devoid of human decency, safety and security that it is unconstitutional. The pleadings paint a picture of a prison that rivals those of Third World countries. Some examples:
• Since January 2006, at least 39 people have died while in Gusman’s custody. An alarming number were suicides and drug-related.
• Yearly since 2008, independent experts and/or the U.S. Department of Justice (DOJ) have concluded that OPP is unsafe, unsanitary, medically unsound, poorly managed — and that’s just the beginning. Gusman denies the reports, saying they are based on “patient reports and inmate accounts.” Duh. Who else would know how bad conditions are? Last year, DOJ joined the SPLC suit to fast track the process of having conditions at the jail declared unconstitutional.
• In 2012, a review panel on prison rape singled out OPP for its “apparent culture of violence” and recommended that OPP “review the quality of the services it provides to victims of sexual assault.”
• Also last year, DOJ wrote in a letter to Gusman, “Despite our findings and repeated attempts to encourage you to meaningfully address numerous problems, the already troubling conditions [at OPP] are deteriorating.” The same letter cites “alarming conditions … [that] persist or have worsened.”
Activist group Community United for Change (CUC) yesterday submitted a brief opposing the city of New Orleans' recent attempt to cancel the New Orleans Police Department federal consent decree. The group even goes a step further than the consent decree, asking the court to consider placing the NOPD under federal control.
"CUC urges this Court to consider placing NOPD in receivership or under the authority of the U.S. Department of Justice. The most recent actions of the City of New Orleans illustrate why they are not capable of self-governance in a constitutional manner," the brief says. "In the meantime, the Court should deny the Motion to Vacate."
CUC cites recent precedent in Oakland, Calif., where the police department has been under a consent decree since 2003. Late last year, plaintiffs claimed the department had failed to come into compliance after nearly 10 years, even though the decree was originally intended to last just five years. They petitioned a judge to place the department under federal control, rather than U.S. Department of Justice (DOJ) oversight under a mutual court agreement as in a consent decree. The department avoided receivership in name, but a December deal puts it under the authority of a federal compliance director, who has the power to fire the police chief.
The city claims the NOPD decree, coupled with another consent decree over Orleans Parish Prison, would be prohibitively expensive. The group, like the DOJ, dismisses the argument on the grounds that the city has a responsibility to ensure both constitutional policing and constitutional jail practices.
"It is shocking that the City of New Orleans takes the position that people are only entitled to a constitutional police force or a constitutional jail," the CUC memorandum says. "This latest attempt to avoid responsibility is proof positive that the NOPD and the City of New Orleans are incapable of policing themselves."
CUC previously attempted to intervene as a named plaintiff in the consent decree lawsuit. Judge Susie Morgan denied the motion in August. CUC is appealing the decision to the U.S. Court of Appeals for the Fifth Circuit.
Read CUC's brief: CUC.pdf
Magistrate Judge Sally Shushan granted the former mayor a $100,000 bond. Under the terms of the bond, Nagin will have to surrender his passport and limit his travel to Louisiana and Texas, except with permission of the court. He is not allowed to speak to any potential witnesses in the case.
Nagin refused to speak to media after the hearing. Walking away from U.S. District Court with attorney Robert Jenkins, Nagin stared ahead silently as reporters pelted him with questions.
Shushan scheduled a pretrial conference date for April 16. The trial is set to begin on April 29, as of today. Given the complexity of the case, however, that is likely to be pushed back, should it end up going to trial.
Early this evening, Mayor Mitch Landrieu's office sent out a statement regarding the U.S. Department of Justice filing a motion in opposition to the City of New Orleans' recent motion to void the New Orleans Police Department (NOPD) consent decree:
The DOJ’s filing today mischaracterizes our interactions over the last several years, especially as it relates to the OPP consent decree. We negotiated the NOPD decree in good faith, expecting the same from the DOJ. After extensive negotiations including cost considerations on the NOPD decree, the DOJ has demanded that the taxpayers of New Orleans fork over an ambiguous, unjustified sum of money for the prison decree. It is clear that both the prison and NOPD consent decrees cannot be paid for at this time without raising taxes or laying off or furloughing employees. And it does not make sense to lay off or furlough police officers so the Sheriff can hire more prison guards and pay them higher salaries.
The Fraternal Order of Police (FOP), the city's largest police officers' association, today submitted to federal court a memorandum in support of the City of New Orleans' motion to void the New Orleans Police Department's (NOPD) federal consent decree. In it FOP argues that the city has already addressed many of the department's most serious problems without federal intervention. Moreover, the memorandum says, the city would be better off using the tens of millions it would have to commit to the consent decree to improve the department by increasing manpower and replacing equipment.
"The FOP also believes that the City is better off without the Consent Decree," it says.
The memorandum goes on to say that the U.S. Department of Justice is mistaken in its belief that constitutional policing is not taking place now.
"Since the commencement of the tenure of Mayor Mitch Landrieu and Superintendent of Police Ronal Serpas the NOPD has become a vastly different department than the one that was studied by the DOJ," it reads. Supt. Serpas has already instituted many of the reforms called for in the Consent Decree. "No one is saying that all of the Consent Decree components have been adopted but many have and it is obvious that the this mayor and police chief are committed to reform."
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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.
Ricky Russell, a 26-year-old mentally ill inmate found dead in his cell at Orleans Parish Prison last week, had requested medical help the night before and was left in his cell without supervision overnight, claims another inmate in a court filing today.
Jaime Hernandez, who was housed on the same tier as Russell in OPP's Conchetta facility, gave a declaration on Feb. 9 that was submitted as an exhibit in the ongoing OPP consent decree litigation in U.S. District Court today. According to Hernandez, Russell asked a nurse for help on Feb. 6, the day before deputies reported finding him dead.
"He had a skin infection on his leg and he also wanted to see a psychiatrist. He asked to see the psychiatrist a lot," the statement says. "The two nurses told him to file a sick call, then they left and he went back in his cell. I remember him saying, 'I'm tired. I'm tired of this.' He also said that he wanted to go upstate [presumably state treatment at the Eastern Louisiana Mental Health System]. I guess he thought he would get more help outside of OPP."
Hernandez says that Russell, a second-degree murder suspect who reportedly suffered from long-term mental illness, was acting strangely that night, laughing loudly until about 2 a.m.
"I thought he had gone to sleep," the statement says.
Hernandez believes Russell may have taken too much of the psychotropic medications staff administered. Hernandez claims that Russell was given "45 pills of both Depakote and Wellbutrin every Wednesday."
Orleans Parish Sheriff's Office (OPSO) officials did not immediately respond to requests for comment. [Update: The Sheriff's Office released a statement Thursday evening.] But an OPSO statement released after Russell's death notes that Russell, while mentally ill, had denied being suicidal, "therefore he was not on suicide watch, which calls for a deputy to monitor him on direct observation." Hernandez corroborates this, saying he advised Russell to tell the medical staff he was suicidal "to get help."
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The Police Association of New Orleans (PANO) and its president, New Orleans Police Department (NOPD) Capt. Michael Glasser, claimed in a legal filing last month that the United States Department of Justice had misrepresented itself in the investigation and negotiations leading to the NOPD consent decree.
The organization's problem was, you've guessed by now, the involvement of former blog-something prose-commenter Sal Perricone. (Also see John Simerman's story on internet startup Perricone's recent appearances in federal court filings.) PANO hopes to reverse a judge's ruling denying its motion to intervene as a named party to the consent decree.
From our earlier story:
PANO charges that former Assistant U.S. Attorney Sal Perricone, who was part of the U.S. Department of Justice's consent decree negotiations team, posted comments on nola.com "clearly and publically display[ing] that he had no faith or respect for the defendants, the NOPD or their present leadership."
The filing points to comments Perricone posted under the user names "Henry L. Mencken1951" and "legacyusa."
Today, DOJ responds, calling PANO's claims immaterial. Judge Susie Morgan's decision against PANO had did not turn on whether PANO's interests were well represented by its negotiators, DOJ says.
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