Allen, et al v. City of Oakland, et al

Filing 630

Second ORDER re: September 22, 2011 status conference. Signed by Judge Thelton E. Henderson on 09/08/11. (Attachments: # 1 Redacted version of August 25, 2011 order [docket no. 626])(tehlc3, COURT STAFF) (Filed on 9/8/2011)

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1 2 IN THE UNITED STATES DISTRICT COURT 3 FOR THE NORTHERN DISTRICT OF CALIFORNIA 4 5 6 DELPHINE ALLEN, et al., 7 Plaintiffs, 8 9 v. CITY OF OAKLAND, et al., [REDACTED] ORDER RE: SEPTEMBER 22, 2011 STATUS CONFERENCE Defendants. 11 For the Northern District of California United States District Court 10 MASTER CASE FILE NO. C00-4599 TEH 12 The next status conference in this case is scheduled to occur on September 22, 2011, 13 with the parties’ joint statement due on September 15, 2011. To ensure that the status 14 conference is productive, the Court now orders the parties to address the following issues in 15 their joint statement, and to come prepared to discuss these issues with the Court: 16 1. Reinstatement of Officer Hector Jimenez. The City appears to have been largely 17 silent about the reinstatement of Officer Jimenez, whom the Internal Affairs Division and 18 Executive Force Review Board determined shot and killed a man who posed no imminent 19 threat to him or his partner. While Defendants may be unable to overturn the arbitrator’s 20 decision that the shooting was justified and that the Department did not have just cause to 21 terminate Jimenez’s employment,1 Defendants shall address whether they have plans to 22 return Officer Jimenez to patrol duty or some other assignment. If Defendants question the 23 expertise of the arbitrator who decided this case, they shall also explain why this particular 24 arbitrator was selected and what steps they are taking to ensure that future arbitrations are 25 submitted to individuals whom they believe to be qualified to decide force-related issues. 26 2. “Operation Summer Tune-Up.” Efforts to promote public safety are laudable, but 27 Defendants must explain the use of the word “tune-up,” particularly when used in the context 28 1 The Court makes no legal determination on this issue. 1 of an initiative to “clean up the streets” by targeting probationers and parolees. Such a term 2 harks back to the incidents that brought about this case over ten years ago, and it indicates 3 that, as much as Defendants assert the culture has changed, Defendants continue to fail to 4 understand or appreciate the purpose of the negotiated reforms. 5 3. Whether the August 4, 2011 court verdict against an Oakland police officer in 6 Smith v. City of Oakland, Case No. 07-6298 MHP, has prompted further review of a case that 7 the Court has been informed resulted in an “unfounded” determination by the Internal Affairs 8 Division. Following a bench trial, a federal district judge concluded, by a preponderance of 9 the evidence, that damages should be awarded for violation of two individuals’ civil rights, 11 question even occurred. This highlights potential inadequacies in the Internal Affairs process For the Northern District of California United States District Court 10 yet the Department found insufficient evidence to determine that the strip searches in 12 and also raises a question as to whether Department policies allow for the re-opening of 13 investigations if new information, including evidence presented during a judicial proceeding, 14 is uncovered. 15 4. The – at least to the Court – alarming numbers of Level 4 uses of force. The Court 16 shares the Monitor’s concern about the high number of Level 4 uses of force, especially 17 given the apparent over-use of pointing a firearm and the correlation that may exist between 18 Level 4 uses of force and officer-involved shootings. Defendants shall report how, if at all, 19 they are addressing this issue. The Court does not expect such a response to include the 20 hiring of an outside person to review the reports in an attempt to argue against the monitoring 21 team’s conclusion that the pointing of firearms was not necessary in all reviewed instances. 22 This would be both a waste of scarce resources and unnecessary, as the Chief of Police has 23 already acknowledged the need for improvement in this area. 24 5. The process by which independent reviews are sought where it is determined that a 25 conflict of interest exists. For example, the Court understands that the Department believes 26 there is an internal conflict of interest regarding a January 26, 2011 officer-involved shooting 27 and is in the process of assembling, or may have already assembled, an outside panel to 28 review the incident in question. The Court seeks a better understanding of how the City 2 1 determines whether a conflict exists and the criteria used by the City to select panel members 2 when it determines that external review is required. 3 All of these issues have a direct impact on compliance with the negotiated reforms in 4 this case. They are indications that Defendants have yet to fully understand or appreciate the 5 spirit of the reforms, and signs that the moral compass of the Department continues to need 6 correction. The Court draws the parties’ attention to these particular issues to provide a 7 focus for the upcoming status conference. The parties should, of course, also raise any other 8 issues significant to compliance, keeping in mind that the Court remains interested in 9 substance over rhetoric, and actions over promises, particularly as we approach what will 11 For the Northern District of California United States District Court 10 hopefully be the last stage of Court monitoring in this case. The Clerk shall serve a copy of this order on counsel for Plaintiffs, Defendants, and 12 Intervenor Oakland Police Officers’ Association (“OPOA”), as well as on the Monitor. The 13 Court is initially filing this order under seal in case any public safety or privacy concerns are 14 raised by sharing information that may not already be public. The parties and OPOA shall 15 meet and confer and file a joint statement, on or before September 2, 2011, addressing 16 whether any part of this order should be redacted before it is filed in the public record, as 17 well as whether any portion of the status conference and joint status conference statement 18 should be sealed. If their response contains any sealable information, the unredacted 19 document may be filed under seal, but a redacted version must be filed in the public record. 20 The Court will then consider the parties’ comments in determining whether to redact this 21 order before filing it in the public record. 22 23 IT IS SO ORDERED. 24 25 Dated: 08/25/11 26 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT 27 28 3

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