Case3:00-cv-04599-TEH Document630

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1 2 3 4 5 6 7 8 9 10 v.

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

DELPHINE ALLEN, et al., Plaintiffs, MASTER CASE FILE NO. C00-4599 TEH SECOND ORDER RE: SEPTEMBER 22, 2011 STATUS CONFERENCE

CITY OF OAKLAND, et al., Defendants.

United States District Court

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For the Northern District of California

After carefully considering the parties responses to the Courts August 25, 2011 order

12 that was filed under seal, the Court now files the attached redacted version of that order in 13 the public record. The Court finds that Officer Jimenezs name is a matter of public record, 14 as his case was reported in the local press. His name will therefore not be redacted. 15 However, out of an abundance of caution, the Court grants Defendants request to redact the 16 determinations of the Internal Affairs Division and Executive Force Review Board. The 17 parties shall immediately meet and confer and notify the Court if they learn that such 18 findings are part of the public record. 19 The Court agrees with the parties that portions of the discussion at the September 22,

20 2011 status conference should be sealed from the public. The parties response references 21 discussions in chambers, but the Court now clarifies that the status conference will take 22 place in its entirety in Courtroom No. 2. The parties shall plan to address all public matters 23 first. At the conclusion of those matters, the Court will then seal the courtroom, and the 24 status conference will proceed with discussion of confidential matters. It is the Courts 25 intention to include in the confidential discussions all counsel, the Chief of Police, Assistant 26 Chief of Police, and City Administrator, as well as the Mayor, should she choose to attend 27 the status conference. The parties and Intervenor Oakland Police Officers Association 28 (OPOA) shall meet and confer and attempt to agree on whether any other individuals

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1 should be allowed to participate in the confidential discussions. They shall include in their 2 joint status conference statement a list of individuals who will be part of the confidential 3 discussions and, if necessary, any individuals whose participation is disputed. The parties 4 and OPOA shall also meet and confer and set forth their views on which matters they believe 5 may be discussed in the public portion of the status conference and which should be kept 6 confidential. 7 Those portions of the joint status statement that will discuss confidential matters

8 should be filed under seal, but the Court cannot determine in a vacuum what specific 9 information should be sealed. Accordingly, the parties shall comply with Civil Local Rule 10 79-5 and General Order No. 62 when filing their joint statement, except that a redacted

United States District Court

11 version of the statement shall be timely filed in the public record on or before the
For the Northern District of California

12 September 15 deadline. 13 14 IT IS SO ORDERED. 15 16 Dated: 09/08/11 17 18 19 20 21 22 23 24 25 26 27 28 2 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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1 2 3 4 5 6 7 8 9 10 v. CITY OF OAKLAND, et al., Defendants. DELPHINE ALLEN, et al., Plaintiffs, MASTER CASE FILE NO. C00-4599 TEH [REDACTED] ORDER RE: SEPTEMBER 22, 2011 STATUS CONFERENCE IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court

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For the Northern District of California

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 arbitrators 20 decision that the shooting was justified and that the Department did not have just cause to 21 terminate Jimenezs 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.

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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, 10 yet the Department found insufficient evidence to determine that the strip searches in

United States District Court

11 question even occurred. This highlights potential inadequacies in the Internal Affairs process
For the Northern District of California

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 Monitors 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 teams 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

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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 10 hopefully be the last stage of Court monitoring in this case.

United States District Court

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For the Northern District of California

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 27 28 3 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT