NOPD consent decree put on hold

3rd June 2013   ·   0 Comments

Those hoping to see the complete overhaul of the New Orleans Police Department will have to wait a little longer after a federal appeals court agreed to temporarily block the enforcement and implementation of a federally mandated NOPD consent decree, but the order may only last a few days.

On Thursday, a three-judge panel from the 5th U.S. Circuit Court of Appeals temporarily granted the Landrieu administration’s request for a stay pending its appeal of U.S. District Judge Susie Morgan’s approval of the NOPD consent decree.

The panel of U.S. Fifth Circuit Court of Appeals Judges Edith Jones, Catharina Haynes and Dennis James gave the U.S. Department of Justice until Monday at noon to respond to the City of New Orleans’ argument that the Landrieu administration shouldn’t have to sign a costly contract for a firm to oversee the agreement’s implementation before a ruling on their appeal.

“The uncertainty of the city’s potential financial obligations warrants a stay of this matter,” the Landrieu administration argued in a filing with the court. “All residents would be affected by the cuts to basic city services should the city be required to fund this consent decree and provide additional funds to Sheriff Marlin Gusman.”

Mayor Mitch Landrieu signed the NOPD consent decree last July and praised it as a step in the right direction for the city. He later tried to back out of it, arguing that the process was tainted by the involvement of Sal Perricone who left has post in the U.S. Attorney’s Office after an online posting scandal. Landrieu has also argued that the City of New Orleans can’t afford to pay for both a NOPD consent decree and an OPP consent decree and that the city no longer needs the NOPD consent decree because the police department has already began to implement reforms on its own.

Thus far, the Landrieu administration’s efforts to back out of the NOPD consent decree have been unsuccessful, with U.S. District Judge Susie Morgan refusing to let the City of New Orleans out of the deal.

Loyola University law professor Dane Ciolino told The Advocate last week that he doesn’t think the City of New Orleans has a very good chance of convincing the judges to keep the stay in place past Monday, since the Landrieu administration would have to show that the City of New Orleans will suffer “irreparable harm” by going forward with the decree in the meantime. Ciolino added that even if the City of New Orleans has to award a contract to a consent-decree monitor, it could always go back later and “just cancel the contract.”

Last week’s decision by the three-judge panel, does, however, temporarily delay for the third time the selection of a federal monitor for the NOPD consent decree. After twice postponing the selection of a monitor, which was originally scheduled for April 30, a decision was expected to be made by Friday, May 31. That meeting of the 10-member panel of DOJ and CNO officials charged with the task of selecting a monitor has been canceled and has not yet been rescheduled.

The two finalists vying to become the firm that oversees the implementation of the NOPD consent decree are Washington, DC-based Sheppard, Mullin, Richter & Hampton and Chicago-based Hilliard Heintze. DOJ panel members reportedly favor Sheppard Mullin while CNO officials favor Hilliard Heintze.

As the deadline for selecting a monitor approached, the Office of Independent Police Monitor became one of the latest entities to weigh in on the two finalists for NOPD consent-decree monitor.

In a letter to Judge Susie Morgan dated May 24, Independent Police Monitor Susan Hutson weighed in on the two firms vying to become NOPD consent-decree monitor. Hutson expressed concerns about the suitability of Sheppard Mullin for the role of monitor.

“Sheppard Mullin was noncommittal about the amount of time they plan to spend in New Orleans,” Hutson wrote. “An absentee monitor will simply not work in the context of New Orleans and the NOPD consent decree. Specifically, New Orleans will need the full attention of the lead monitor. It would appear from Sheppard Mullin’s proposal that the lead monitor candidate, Mr. Aronie, will continue to manage a large law firm while acting as the lead monitor. New Orleans needs the strong commitment of Mr. Aronie’s presence in New Orleans if Sheppard Mullin is chosen to implement the New Orleans Police Department Consent Decree.”

Hutson also questioned former Pittsburgh Police Chief Robert McNeilly’s “experience with police oversight,” saying that the records the Office of Independent Police Monitor reviewed suggest that the former police chief, who is part of Sheppard Mullin’s team, “allegedly failed to order officers to comply with the Citizens Police Review Board and its lawful mission.”

Hutson said her office is also concerned about Sheppard Mullin’s ability to work with the community and get the people of New Orleans to “buy in” to the implemented NOPD reforms it monitors. She told Judge Morgan that the local law firm representing Sheppard Mullin’s only local presence may be compromised by its business and legal dealings in New Orleans. “In such a small legal community, many law firms in New Orleans have some ties to the city and their legitimacy would be instantly challenged,” Hutson wrote. “If selected, Sheppard Mullin must work with community groups in order to effectively receive input from the citizens of New Orleans who currently and historically are most affected by unconstitutional policing.”

Hutson asked Judge Morgan to “fully vet” Sheppard Mullin before making a final decision on the consent-decree monitor.

While noting that Hilliard Heintz primary partner, former Chicago Police Department Supt. Terry Hilliard, received a nod of approval from Chicago’s Independent Police Review Authority, Susan Hutson appeared to be noticeably less critical of Hilliard Heintze’s shortcomings and liabilities than she was of Sheppard Mullin.

Still, Hutson conceded that only two of Hilliard Heintze’s 20 advisors “have legal experience” and that the Office of Independent Police Monitor “has some concerns about lawsuits against former Superintendent Hilliard.” She also acknowledged the concerns expressed by grassroots leaders and civil rights organizations about the ties between several Hilliard Heintze local partners and the Landrieu administration and how that could impact implementation of the NOPD consent decree, but seemed to downplay the significance of those concerns.

“Although some of their selections have been controversial, we respect that they have reached out to the community,” Hutson told Judge Morgan.

The “selections” to which Hutson referred are the Rev. Charles Southall III and Tulane criminologist Dr. Peter Scharf, both of whom have ties to the Landrieu administration. Rev. Southall’s funeral home reportedly received $1,000 from New Orleans Mayor Mitch Landrieu last year to pay for the funeral of Wendell Allen, who was un­armed and shirtless when he was killed by a NOPD officer while standing on the staircase in his Gentilly home. Allen’s funeral was held at Rev. Southall’s church, First Emanuel Baptist Church, which also hosted a community meeting led by Mayor Landrieu and NOPD Supt. Ronal Serpas on the same day (March 25, 2013) and time as a meeting hosted by civil rights organizations to discuss racial profiling after two Black teenagers were assaulted by plainclothes officers in the French Quarter on Feb. 10, 2013.

Dr. Peter Scharf reportedly has been utilized by the NOPD and City of New Orleans as a consultant and was critical of the NOPD consent decree in an article in The New York Times.

Chicago civil rights attorney questioned Hilliard Heintze’s suitability for the job of consent-decree monitor because of Supt. Hilliard record as the head of Chicago’s police department. With Hilliard at its helm, the Chicago Police Department tortured Black suspects and wrongfully arrested a seven-and eight-year-old for the rape and murder of an 11-year-old girl until it was discovered that the culprit was a serial rapist who later confessed. The cases have resulted in $17 million paid in settlements in civil rights lawsuits with two cases still pending.

“This mayor talks a good game about wanted to make New Orleans safer, but Mitch Landrieu has done everything he can to prevent this NOPD consent decree from becoming a reality,” the Rev. Raymond Brown, president of National Action Now, told The Louisiana Weekly. “By refusing to support the NOPD consent decree, he is putting New Orleans residents at risk of continuing to be victimized by cops who have no respect for the law and know that they can and have gotten away with murder.”

A number of organizations, including Community United for Change, the Black Star Line Division #466 of the Universal Negro Improvement Asso­ciation, New Orleans Branch of the NAACP and Safe Streets/Strong Communities, have said that the city’s rising tide of violence is a direct result of the community’s lack of trust in and respect for the New Orleans Police Department. Grassroots and civil rights leaders have argued that the implementation of the NOPD consent decree will bring an end to unconstitutional policing in New Orleans and help to encourage greater cooperation between residents and law enforcement agencies when crises like the Mother’s Day shootings arise.

*Additional reporting by Louisiana Weekly editor Edmund W. Lewis.

This article originally published in the June 3, 2013 print edition of The Louisiana Weekly newspaper.