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Consent Decree Brings 500 Reforms, Controversy in NOPD
After a year of negotiations, the City and the U.S. Department of Justice are looking to finalize the consent decree that will serve as a blueprint for nearly 500 federally-mandated reforms in the New Orleans Police Department. But the voluminous document has yet to be approved by a judge, and a few organizations representing police officers and the public are vying to get a seat at the table before the hammer comes down.
Last week, two police unions a citizens' group and the city's independent police oversight office filed motions to intervene in the decree, indicating that there could be more parties involved in the reforms than just the federal government and the city.
The four parties looking to intervene, which include the city's Independent Police Monitor, all feel they were left out of the consent decree negotiations. Whether on the side of officers or the public, their court filings all indicate they believe the consent decree does not speak to their position, and raise questions about the ultimate effectiveness of the decree.
Parties typically bring intervention because they don't feel like the city or feds are representing them, and they want their voices to be heard throughout the reforms.
"Unless you're a party to a lawsuit, you can't participate in the lawsuits, you can't stand up and be heard," said Loyola University law professor Dana Ciolino.
On Monday, the Fraternal Order of Police - which represents about 90 percent of the NOPD's officers--filed their motion, claiming that their lack of voice in the proceedings so far means the interests of rank-and-file cops are not protected by the reform document.
Though they participated in an initial meeting about the document, the FOP claims they were shut out of the negotiations. Following the outing of Assistant U.S. Attorney Sal Perricone as nola.com commenter Henry L. Mencken 1951, they petitioned Mayor Mitch Landrieu to be involved in the process citing leaks about the process that were attributed to Perricone and general "anxiety." They never heard back.
So, they came to court to seek a seat at the table that was never granted to them.
"...None of the members of the NOPD were given any voice in its contents, how it was to be worded, the areas to be covered or, in fact, any part of the proposed Consent Decree whatsoever. It is a document which will control their jobs yet they have been given no right to have any part in what it says or how it will be implemented," the FOP's court filing says.
The FOP argues "they must be allowed to protect their interests. No one else in this litigation will." In the filing, the FOP intones that some of the decree - which is heavy on governing the nitty gritty of police work - goes too far.
"Of course, Intervenors do not condone illegal or unconstitutional acts. However, this Consent Decree encompasses more than what may be required to address such allegations and puts restrictions in place that go far beyond remedying alleged unconstitutional or illegal activities," the filing states.
The Police Association of New Orleans, another group that represents officers, also filed a motion last week. PANO, which recently released a survey of the rank-and-file that showed officers weren't happy in their jobs (and also had its methods disupted by NOPD brass), also thought they would be included in negotiations. The feds even used the PANO offices to interview rank-and-file cops, the filing says.
"It is interesting to note that many of these issues identified by officers, and subsequently targeted by the consent decree, are issues which uniquely affect the ability and effectiveness of the law enforcement officer and his performance. Some of these issues, made public by the March 2011 investigative report, have still been ignored by the defendant...for the past 16 months," the filing states.
PANO wants a seat at the table to make sure the City addresses the issues that matter to officers, the filing states.
On the other end of the spectrum is Communities United for Change. The group, which works with victims of police brutality and filed its own "Citizens' Consent Decree" recently, filed a motion to intervene that argues the police department cannot be trusted to reform itself.
The police department needs civilian oversight before it will ever truly reform, the document says.
"Unfortunately, the proposed Consent Decree is deficient in several areas especially as regards to civilian oversight of the police department. CUC does not believe the necessary reforms will come from the existing or proposed structure where the trigger mechanism for early warning of deprivation of rights is isolated to an “in-house” process that permits the prevailing conditions outlined in the DOJ report to continue," the filing says.
The "early warning" system is a proposal in the consent decree that tracks officer behavior, and is designed to show signs of potential police malfeasance. The CUC said they submitted earlier demands for a civilian oversight committee of the Department, which would provide a way for the public to report and oversee officer conduct, among other items.
One example that the CUC uses is the use of force. The filing argues that when police must resort to violence, it should not be investigated internally by the NOPD.
"It only adds layers of NOPD investigation to the present system which has not sustained a charge of homicide against a NOPD officer in over a decade. CUC believes that the investigation of use of force complaints must come from an independent investigation body," the filing says.
The civilian monitor paid by the City would tend to agree. Independent Police Monitor Susan Hutson already has an office and a mandate from voters, but she says she was also left out of the consent decree proceedings.
Under the decree, a monitor would be chosen to oversee the reforms for the court. After the consent decree was announced, Hutson - whose position was created after a referendum in 2008 - released a statement saying she was left out of the negotiation process, and that she did not understand her role in the consent decree - even though she was mentioned in it.
The filing states Hutson's office reached out to the mayor's office on "at least 7" occasions to discuss the role of the Independent Police Monitor.
Under the consent decree, Hutson's office argues it could be "barred" from acting out its duties to the public if the office does not have a seat at the table.
However, the Consent Decree, which the OIPM was never allowed to review, takes into account very little of the input provided by the OIPM, yet purports to bind the OIPM to its terms and conditions," the filing states.
In a statement, Hutson said local oversight of the department would be critical.
"New Orleans is not a city where effective monitoring can occur without local intervention,” Hutson said in a statement.
Ciolino - the Loyola law professor - said the parties will likely be allowed to intervene in the case. But where the parties go from there remains questionable, he said. The binding nature of a consent decree, where the two parties agree to carry out the specific reforms line-by-line - makes further opposition from the parties without objecting to the consent decree more difficult, Ciolino said.
"Odds are at the end of the day that they're not going to have much effect on the outcome," he said of the interveners.
A City of New Orleans spokesman denied to comment for this article.
Oral arguments in the case are scheduled for August 20.
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