The NSA is the deal, dating to 2003, between the U.S. District Court for Northern California and the City of Oakland, that resulted from the infamous “Riders” case of the early 2000s, in which several Oakland cops were implicated in misconduct (unlawful beatings and detention). Under the NSA’s terms, the City paid $11 million to 119 plaintiffs and agreed for OPD to be monitored by a Federal overseer for an indefinite period, who since 2010 has been Robert Warshaw. The NSA thus is now in its 19th year.
In the beginning, the NSA, through its administrative arm, the Independent Monitoring Team (IMT, which Warshaw heads), gave OPD 51 “tasks” to be implemented. Over the years, Warshaw has determined that OPD successfully completed 48 of these tasks; three remain “out of compliance”, in the jargon. The NSA will not end until all three are completed. After that, the deal requires an additional year to study “sustainability”—to make sure the department doesn’t backslide.
What are the three remaining tasks?
Timelines for use-of-force investigations
These are automatically instigated whenever a citizen registers a complaint about a cop. There are different levels of “use of force.” For instance, a low-level use of force—Level 4--is a cop pointing a gun at someone. Slightly higher than that is the use of pepper spray. The highest level—Level 1—is a shooting incident, especially if it results in death.
There are different formats and timelines for use-of-force investigations. Warshaw seems to have no problem with Level 1 or Level 4 investigations; the former have no timeline due to their seriousness, while the latter are required to be completed by the end of the officer’s daily shift, because they’re generally simple matters of filling out forms. It’s the Level 2s and Level 3s that the IMT is concerned about. On average, the deadline for investigation of these is about two weeks, although investigators can request extensions. But the IMT wants 2s and 3s to be completed faster.
Why do 2s and 3s get delayed? To some extent it has to do with legacy computer systems, which OPD says it is working on. But perhaps a bigger reason is a lack of staffing within OPD. Investigators are generally higher-level officers—Captains, who in turn are supervised by Deputy Chiefs—but these cops have other duties to perform “in the field.” If the investigators worked only on administrative work, investigations would proceed faster. But investigators have to balance investigation with field work, meaning they’re juggling a lot. And, as we all know, OPD is suffering from severe attrition. I’m told that this task—timelines for use-of-force investigations—has now been successfully resolved, so although it technically remains on Warshaw’s to-do list, the expectation is that he will find the department in compliance in his next report (April).
Stop data
OPD is required to collect data on the demographics of people it stops in cars or otherwise, as well as the reasons for the stop and its outcome. The IMT’s concern is about racial disparities: Are cops stopping one race, namely Blacks, at a higher rate than others? The data suggest that in the past, they have, although the disparity has been decreasing. Warshaw has asked OPD for a “more probing analysis” of this phenomenon. He has not given OPD details, which means discerning his expectations is difficult. It basically comes down to OPD submitting regular stop data and then asking the IMT, “Is this okay? What else should we be doing?” In this sense, OPD is being asked to perform a task for which no completion parameters exist.
OPD is intensely aware of the seriousness of this stop data issue. Let’s say a crime report gives a suspect description of a Black male driving a silver Honda. There may be a lot of Black men driving silver Hondas; all of them but one is innocent of the crime under investigation. Police know that if they simply sweep Oakland of all Black males driving silver Hondas, the community will be upset, which is the last thing OPD wants. This is why extra intelligence is needed—say, surveillance cameras: to be able to nab the guilty party instead of a broad sweep.
OPD claims to be working hard on this. Still, it’s difficult to know what Warshaw’s expectations are. Does he want the number of people stopped to exactly replicate Oakland’s racial breakdown? I think cops find this task, yet they emphasize how committed they are to satisfying Warshaw.
Consistency of discipline
You can think of this as the way OPD disciplines its own officers for misconduct. These can arise from citizen complaints or from official misbehavior investigated by Internal Affairs. Examples are stealing or losing seized property, beating someone up, or turning in a poorly-crafted police report. The IMT has determined that there is a racial disparity in these internal investigations—that Black cops are being “sustained” (disciplined) at a higher level than other cops.
This finding is based on a study by an external consulting firm that looked at data between 2008 and 2014. In other words, the IMT is relying on data between 8 and 14 years old. You’ll find OPD officials who claim that the data was suspect from Day One and is even more suspect today, given its antiquity. Still, OPD is concerned with “the perception” that they are harsher on their own Black cops, which would feed into anti-cop narratives. One way OPD has approached this is to make sure that disciplinary hearings are held anonymously: the investigators don’t know the race or anything else about the accused, except for the details of the misconduct. Here, too, OPD says they’ve made progress, and they expect Warshaw to drop this task in his next report.
If he does drop all three remaining tasks, and is supported by his boss, U.S. Judge William Orrick, there will remain that year of sustainability. It is here that OPD are on unsure footing. They strongly believe they’ve complied with Warshaw’s final three tasks, insofar as they’re able to determine success given the ambiguity of his instructions. (What does a “more probing analysis” mean?) What OPD doesn’t know, and cannot know until it happens, is who will ultimately be in charge of determining sustainability. Will it still be Warshaw? Will he leave, and will Orrick appoint someone else? Will it be the Oakland Police Commission, which tends to be anti-cop? Nobody knows, which is why OPD is crossing their fingers and hoping that, after twenty years, the Federal courts will finally end the NSA and leave OPD alone.
NOTE: The above is true insofar as I’ve been able to determine truth in this murky, bureaucratic, legalistic and highly technical situation. I’ve relied on interviews, official reports and news coverage. I regret any errors, which are entirely my own.
Steve Heimoff