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Monday, August 20, 2012

No decision after arguments on motions to intervene in the NOPD Consent Decree

Posted By on Mon, Aug 20, 2012 at 5:37 PM

After two hours of oral arguments — interrupted briefly by the evacuation of U.S. District Court for what turned out to be a false fire alarm — Judge Susie Morgan today did not make a decision on four motions to intervene in the federal consent decree between the U.S. Department of Justice (DOJ) and the New Orleans Police Department (NOPD). Morgan said she would rule on the motions before a hearing on the whole agreement, set for August 29.

Attorney Bill Quigley, representing intervening citizens group Community United for Change, said that one of the criteria for determining whether a group should have a right to intervene is "demonstrated interest," which the group had established.

The problems addressed in the consent decree "didn't start with Hurricane Katrina, did not start on the Danziger Bridge," Quigley said. He said that members of the group had been active in police reform for at least 30 years, since the Algiers 7 case. Quigley said that many of the reforms addressed in the decree had been promised, each time without giving citizens any real authority.

The lack of real citizen oversight has meant those past attempts didn't pan out. Quigley brought up a large number of NOPD civil rights abuses in the past several decades.

"All of this has continued," he said.

The proposed NOPD consent decree calls for community advisory boards. Quigley emphasized "advisory" and said the idea was essentially meaningless. He noted that two other similar agreements, in Cincinnati and Los Angeles, community groups were allowed to intervene.

"To us this is literally life and death, to us as the victim community ... the people who are the statistics the Department of Justice is talking about," Quigley said.

"We want the system to work. We want a civilian control position inside of this. We want a term longer than four years," he said. "This is a systemic issue."

(More after the jump)

U.S. Assistant Attorney Christy Lopez said that allowing one citizens' group access to consent decree implementation would be unfair to others.

"We recognize that not every interest of the movement here was was addressed," Lopez said, but to allow it intervenor status would "unfairly elevate one set of interests above everyone else."

But Lopez argued most forcefully against intervention sought by two officers' associations, the Fraternal Order of Police (FOP) and the Police Association of New Orleans (PANO), saying the groups fully intended to delay or obstruct implementation of the agreement.

"They have an abstract interest in constitutional policing. But their specific interest is protecting officers and making sure they don't get in trouble," Lopez said. "Essentially they want to turn the consent decree into one giant collective bargaining agreement."

In response to DOJ arguments that the groups currently have no collective bargaining rights and no contract, and therefore did not have a protected material interest. Morgan looked at the precedents FOP submitted in its motion, including the LAPD consent decree, in which the officers' union was found to have a right to intervene, were not "squarely on point" with the situation in New Orleans. But FOP attorney Ted Alpaugh said that the city's civil service system amounted to the same type of protections.

"A lot of these cases have to do with contractual relationships. This goes way beyond contractual relationships. These people are protected by civil service," and the proposed decree interferes with that system, Alpaugh said. "They had no say, not only in the confection, but in the implementation of the consent decree."

Alpaugh said the group tried on a number of occasions to request involvement in negotiations but was denied. When they tried to approach retired NOPD officer Daniel Cazenave, hired by the city as a local-federal liaison who the city has pointed to as a representative of officer interests, "he couldn't tell us anything. He was sworn to secrecy," Alpaugh said.

"Do we support the consent decree? Your honor, we would be foolish not to. Something needs to change," said PANO attorney Eric Hessler. But officers, he went on, risk their lives doing their jobs. "It seems unfair for these same officers not to have any input."

Though no decision was reached as to whether the parties would be allowed to have a say in the finalization and implementation of the decree, the city and DOJ did agree to make a series of small modifications responding to some of IPM Susan Hutson's objections to the 492-point agreement, requiring a contracted federal monitor to share information with Hutson's office.

In her filing, Hutson argued that the decree compels her office to confer and share information with a federal monitor, a yet-to-be-hired contractor who will oversee implementation of the four-year agreement. However, she said, the monitor would not be required to reciprocate.

Assistant U.S. Attorney Christy Lopez said the DOJ has agreed to modify any instance of the wording "the Office of the Independent Monitor shall" to the office "may" or "should" work with the monitor. The monitor will be required to share certain information he or she has gathered on NOPD's progress with Hutson. Assistant New Orleans City Attorney Sharonda Williams said the city had agreed to make the changes.

The deadline has passed to file for intervention, but members of the public have until Friday, August 24 at 4 p.m. to file letters or pleadings with comments or concerns about the proposed consent decree, with the U.S. District Court Clerk's office. Case number 12-cv-01924, The United States of America v. the City of New Orleans.

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