Thursday, March 7, 2002
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Two Ninth Circuit Judges Voice Concerns Over LAPD Consent Decree as ACLU, Union Challenge Exclusion
By KENNETH OFGANG, Staff Writer/Appellate Courts
Two Ninth U.S. Circuit Court of Appeals judges expressed concern yesterday about a district judge’s decision denying the American Civil Liberties Union and the Los Angeles Police Protective League the right to intervene in legal proceedings concerning reform of the city’s police department.
“Why are you trying to shut out these parties?” Judge Sidney Thomas asked lawyers for the federal government and the city of Los Angeles. Those lawyers are defending Judge Gary Feess’ denial of intervention in the proceedings, which culminated in a consent decree mandating that the department take specific steps to protect the civil rights of citizens.
Thomas’ sentiments were echoed by Judge Johnnie B. Rawlinson, who closely questioned claims that intervention would slow down the process of LAPD reform. The judge suggested the process might be aided by allowing interested groups “to participate fully.”
Thomas, Rawlinson, and Senior Judge James Browning—who was not active in the questioning—heard an hour of arguments yesterday in Pasadena.
Feess, of the Central District of California, approved the consent decree in November 2000 after the Justice Department concluded a four-year probe of what it claimed was a “pattern and practice” of constitutional violations by the department. The decree mandates changes in management, training, and record-keeping procedures and requires the appointment of an independent monitor.
Before the decree was approved, Feess denied motions for intervention by the LAPPL—representing rank-and-file officers—and the ACLU, asserting the interests of past and potential victims of rights violations.
The union claims that the decree interferes with its collective bargaining rights and seeks either to overturn the decree or to become a party so that it can go to court if implementation results in violations of officers’ rights. The ACLU is not challenging the decree, but seeks the right to bring enforcement proceedings if it is violated.
LAPPL attorney Gregory Peterson argued that the decree, while intending to protect citizen’s rights to due process and freedom from unlawful seizure, threatens the ability of officers to obtain those very same rights, as well as the right to collective bargaining under state law.
“We agree with the ACLU on one thing,” Peterson said. “Justice is not spelled J-U-S-T U-S.”
The consent decree, he said, was the result of “people who [were] running for mayor” making “backroom brokered deals…that are more political than they are legal.”
The city’s current mayor, James K. Hahn, was city attorney at the time of the negotiations. Among the candidates he defeated for mayor was Joel Wachs, a member of the City Council that approved the decree.
ACLU counsel Mark Rosenbaum said his organization should be permitted to intervene under federal rules. Asked by Thomas about past cases denying third parties the right to intervene to enforce consent decrees, Rosenbaum noted that those precedents involved motions filed after judgment had been entered.
Rosenbaum refuted arguments by the Justice Department and the city that intervention is precluded because the 1994 crime bill, under which the consent decree was formulated, only permits the attorney general to bring “pattern-and-practice” suits against police departments. “Congress knows particularly well how to insulate a consent decree from intervention” and hasn’t done it with regard to this particular statute, the attorney said.
Intervention is necessary, he went on to argue, because early reports by the independent monitor indicate “serious, substantial non-compliance” with the decree. “It’s now or never,” he said, when it comes to LAPD reform.
He also questioned the willingness of the federal government to enforce the decree, noting that President George Bush has expressed doubts about the wisdom of using the federal courts for oversight of local police department.
That last point was attacked by the Justice Department’s Sarah Harrington, who answered “absolutely not” when asked by Thomas where there had been any change in her instructions concerning enforcement of the decree since the change of administrations.
The department, she acknowledged, now views “pattern-and-practice” litigation as inappropriate in the “usual case.” But the LAPD’s situation, she said, “is an unusual case” that the department is committed to pursuing.
Patricia Glaser, representing the city, assured the panel that “there is no right being denied by this consent decree, none.” The public interest, she said, was well served by the involvement of the city’s elected officials in the negotiation of the decree.
Copyright 2002, Metropolitan News Company