Judge upholds NOPD consent decree
28th May 2013 · 0 Comments
Despite New Orleans Mayor Mitch Landrieu’s efforts to convince a federal judge to toss out the NOPD consent decree the Landrieu administration and the Department of Justice signed last year, the judge upheld the consent decree Thursday, just eight days before a decision is expected regarding the selection of a NOPD consent-decree monitor.
U.S. District Judge Susie Morgan decided to reject the Landrieu administration’s legal efforts to vacate the consent decree, saying that it was “a fair, adequate and reasonable solution for transforming the NOPD into a world-class police force.”
After an earlier effort by the Landrieu administration to secure a delay in the implementation of the NOPD consent decree, the City of New Orleans said in February that it would request a review from the U.S. Fifth Circuit Court of Appeal of Judge Morgan’s January 2013 approval of the consent decree.
The Landrieu administration argued that the NOPD consent decree was tainted by the involvement of Sal Perricone, a key administrator under then-U.S. Attorney Jim Letten who resigned after his involvement in a nola.com posting scandal became public. Attorneys representing the Landrieu administration argued that Perricone, who expressed an interest in becoming NOPD superintendent, had “ulterior motives” in the way he carried out a probe of the NOPD and compromised the U.S. Attorney’s Office with his online postings criticizing NOPD Supt. Ronal Serpas.
Ultimately, Sal Perricone resigned in a scandal that also forced U.S. Attorney Jim Letten to step down.
Judge Susis Morgan was not swayed by the City’s argument that Perricone’s involvement in consent-decree negotiations tainted the process.
“The city knowingly continued to negotiate the terms of the consent decree and… pressed the court for its approval” long after it became aware of Sal Perricone’s online postings, she wrote in her ruling.
Judge Morgan also sided with the DOJ which objected to claims by the Landrieu administration that it had been tricked into signing a costly agreement without being made fully aware of the costs associated with implementing the NOPD and OPP consent decrees, calling the Landrieu administration’s claims “patently false.”
Morgan said the city was aware of the estimated $22.6 million price tag associated with the OPP consent decree at least five days before the NOPD consent decree was made public last summer. “The city’s displeasure regarding the OPP consent decree does not constitute extraordinary circumstances sufficient for relief,” Morgan said.
Judge Morgan rendered her decision just eight days before a 10-member panel comprised of DOJ and CNO officials is scheduled to select a federal monitor for the implementation of the NOPD consent decree. The two finalists for the contract are Chicago-based Hilliard Heintze and Washington, DC-based Sheppard, Mullin, Richter and Hampton.
The panel was originally expected to make a decision by April 30 but was granted a two-week extension. On May 13, the day before it was expected to name a federal monitor, the panel asked for and was granted another delay until Tuesday, May 28. The website for the U.S. Attorney for the Eastern District of Louisiana announced Wednesday that the meeting has been postponed again until Friday, May 31, at 12 noon in the Bienville Club Lounge of the Mercedes-Benz Superdome.
“In the event the Parties are unable to agree on a Monitor, the Parties are to inform the Court that they are unable to agree no later than Friday, May 31, 2013, at 11:59 p.m.,” the website said. “The Court will then select the Monitor pursuant to paragraph 478 of the Consent Decree entered as a judgment of this Court on January 11, 2013.”
A number of civil rights and grassroots organizations, including Community United for Change and the Universal Negro Improvement Association Black Star Line Division #466, have criticized Hilliard Heintze’s local partners, the Rev. Charles Southall III and Tulane criminologist Dr. Peter Scharf, because of ties to the Landrieu administration. Chicago civil rights attorney G. Flint Taylor questioned the suitability of Hilliard Heintze for the post because of one of its primary partners, former Chicago Police Dept. Superintendent Terry Hilliard, who was at the helm of the department when Blacks were reportedly tortured by Chicago police detectives and a seven- and eight-year-old were wrongly arrested and detained after the rape and murder of an 11-year-old girl. To date, the City of Chicago has paid $17 million in settlements in three cases charging the police department with federal civil rights violations and two more cases are pending.
Local civil rights organizations and CNO officials have also criticized Sheppard, Mullin, Richter and Hampton for not providing adequate information about its local partners.
The Landrieu administration has sought to secure federal receivership of Orleans Parish Prison after the release of several videos capturing illegal activities in OPP’s now-closed House of Detention, arguing that Orleans Parish Sheriff Marlin Gusman is not capable of implementing the needed OPP reforms. Landrieu has also sought to reduce the cost of the OPP reforms by reconfiguring renovations of the facility.
Gusman countered by saying that Orleans Parish Prison has been severely underfunded for years by the City of New Orleans and argued that it has been the ongoing neglect of City Hall that made an OPP consent decree necessary.
After more than two years of community meetings and a thorough investigation, the DOJ released a scathing report on the NOPD in March of 2011. “Following a comprehensive investigation, on March 17, 2011, we announced our findings,” DOJ officials wrote. “We found that the NOPD has engaged in patterns of misconduct that violate the Constitution and federal law, including a pattern or practice of excessive force, and of illegal stops, searches, and arrests. We found also a pattern or practice of gender discrimination in the Department’s under-enforcement and under-investigation of violence against women. We further found strong indications of discriminatory policing based on racial, ethnic, and LGBT bias, as well as a failure to provide critical police services to language minority communities.”
On July 24, 2012, the U.S. Department of Justice announced that the U.S. had entered into a comprehensive, cooperative consent decree with the City of New Orleans to resolve allegations of unlawful police misconduct by the NOPD. The filing of the consent decree in federal court in New Orleans continued the process of reforming the NOPD and began federal court oversight of that reform to ensure effective and constitutional policing in New Orleans.
“Today’s action represents a critical step forward. It reaffirms the Justice Department’s commitment to the highest standards of fairness and professionalism and underscores our determination to work alongside our law enforcement partners to protect not only the safety –but the essential civil rights – of everyone in this country,” Attorney General Eric Holder said.
The consent decree requires the NOPD to make broad changes in policies and practices related to use of force; stops, searches and arrests; custodial interrogations; photographic line-ups; preventing discriminatory policing; community engagement; recruitment; training; officer assistance and support; performance evaluations and promotions; supervision; misconduct investigations; and the NOPD’s system of secondary employment, also known as paid details.
The agreement also requires more transparency by the NOPD, encourages greater civilian oversight and increases community interaction and partnerships. The agreement requires close and comprehensive oversight by a court-appointed monitoring team, which will periodically submit public reports regarding NOPD’s progress. The consent decree will remain in effect until the city demonstrates it has complied with its provisions for two years, or until the monitor’s assessment of the agreement’s outcome measures demonstrates sustained and continuing improvement in constitutional policing.
“The consent decree, which is unprecedented in scope and nature, is designed to ensure that comprehensive, sustainable reforms are made in the New Orleans Police Department,” said Assistant Attorney General for the Civil Rights Division Thomas E. Perez. “We will continue our partnership with Mayor Landrieu, the police department and the community to ensure that the critical reforms are achieved.”
“This groundbreaking agreement represents a critical milestone in the recovery of New Orleans and a victory for our city, its police department and most of all its citizens,” said U.S. Attorney for the Eastern District of Louisiana Jim Letten. “The consent decree will serve as a blueprint for the New Orleans Police Department, so that it may become a world-class police department – one which will be more effective in protecting its citizens against all threats and dangers.
The consent decree is the product of the United States’ civil pattern or practice investigation of NOPD, which began in May 2010 and resulted in a comprehensive report in which the department found that the NOPD engages in a pattern or practice of misconduct that violates the Constitution and other federal laws. The Justice Department’s investigation found a pattern or practice of excessive force, including stops, searches and arrests in violation of the Fourth Amendment. The investigation also found evidence of discriminatory policing based on race, ethnicity, gender and sexual orientation. This civil pattern or practice investigation was separate from the numerous federal criminal civil rights prosecutions of NOPD officers during this time period.
The Justice Department’s civil pattern or practice investigation was informed by 12 experts on police practices, including a number of current and former police professionals. The investigation included numerous onsite visits and observations of police-community interactions, including interviews with New Orleans officials, NOPD command staff, supervisors and police officers. Additionally, the department’s investigation reviewed more than 36,000 pages of documents and held interviews with residents, community groups and other stakeholders.
The investigation was conducted in accordance with the police misconduct provision (Section 14141) of the Violent Crime Control and Law Enforcement Act of 1994 (VCCLEA) , the anti-discrimination provisions of the Omnibus Crime Control and Safe Streets Act of 1968, and Title VI of the Civil Rights Act of 1964. Under Section 14141 of VCCLEA, the Justice Department has the authority to file civil suits against law enforcement agencies that engage in a pattern or practice of misconduct. The department also has the authority under the Safe Streets Act and Title VI to file suit against law enforcement agencies that engage in discrimination if they receive federal funds.
After initially applauding the NOPD conset decree as a “clear roadmap forward” when he signed it on July 24, 2012, New Orleans Mayor Mitch Landrieu said earlier this year in a federal court brief that the City of New Orleans no longer needs a NOPD consent decree because the New Orleans Police Department is reforming itself.
The fatal NOPD shootings of Justin Sipp and an unarmed Wendell Allen, within a seven-day period in March of 2012, and a Feb. 10, 2013 incident involving plainclothes officers and two Black teenagers in the French Quarter, have led to renewed demands for NOPD reforms and an end to racial profiling, excessive force and other forms of unconstitutional policing. Both Justin Sipp and Wendell Allen were 20 years old and Earl Sipp, 24, was also injured in a gunfire exchange with NOPD officers. Both the Sipp and Allen families have filed civil lawsuits against the City of New Orleans and the NOPD this past March.
*Additional reporting by Louisiana Weekly editor Edmund W. Lewis.
This article originally published in the May 27, 2013 print edition of The Louisiana Weekly newspaper.