On the morning of December 15 2005, then-Oakland Police Officer Ingo Mayer pulled over Troy Lucas and Kirby Bradshaw as the pair was driving on 32nd Street and Martin Luther King Jr. Way in West Oakland. As was common practice among OPD officers at the time, Mayer and fellow Officer D’Vour Thurston ordered Lucas and Kirby to drop their pants and underwear in public for a body search, despite their protestations. Lucas and Bradshaw later filed a civil-rights complaint in federal court, part of a class-action lawsuit that now includes 42 other plaintiffs alleging illegal searches by Oakland cops.
In March, US District Court Judge Marilyn Patel sided with Lucas and Bradshaw, awarding them $245,000 in damages and $832,000 in legal fees incurred by plaintiffs’ attorneys Michael Haddad and Julia Sherwin. Patel also ordered Officer Mayer to personally pay $40,000 in restitution to the two men. However, at the urging of the Oakland police union, the city council voted 5-3 last Tuesday to pay Mayer’s fine, even though the city had no obligation to add to the extensive legal bill from a case that has 42 more plaintiffs awaiting judgments.
The decision by Oakland’s leaders to pay Mayer’s own punitive damages reflects an ongoing willingness by the city to shoulder the legal costs for the sort of police misconduct settlements that were supposed to be diminished by OPD’s nine years of federal oversight. Perhaps even more disturbing, however, is the fact that after almost a decade of court-mandated reforms, the total costs accruing to Oakland taxpayers from police misconduct have actually increased. And due to recent, high-profile complaints filed against the city arising from mass arrests, wrongful use of force, and other controversial police actions, these costs may further escalate.
According to OPD expenditure records obtained by the Express, the total legal costs of ongoing police officer misconduct totaled $13,149,000 in fiscal year 2010-11. Most of this, approximately $12,271,000, was set aside to pay settlements stemming from police brutality, illegal searches, injuries, false arrests, and related civil-rights violations. Another $1,147,000 of this total was for work directly related to OPD’s nine-year-old federal consent decree. Police Performance Solutions, the company run by independent court monitor Robert Warshaw, received $1,078,000. The Police Assessment Resources Center, a Southern California nonprofit specializing in law enforcement oversight, was paid another $69,000.
City Attorney Barbara Parker’s annual report for fiscal year 2010-11 only lists $9.1 million in police-related legal costs to the city — namely, court settlements and lawyers’ fees. While it’s a smaller amount than the total costs reflected in OPD’s own records, the city attorney’s calculations still reveal that legal costs related to police misconduct last year are almost double the $5.64 million in police-related payouts Oakland incurred in fiscal year 2009-10. The increase, according to the city attorney’s report, is due to “high liability cases involving police use of force, wrongful death, vehicle accident and labor complaints.”
Parker’s report also offers insight into the drain OPD’s legal and disciplinary problems have on city resources. City lawyers spent 20,095 billable hours on OPD’s legal affairs in 2010-11, far more than the 14,251 hours spent on the next highest category, CEDA/ORA/OBRA. This triple-acronym refers to Oakland’s economic development activities, including the massively complex Army Base redevelopment, and other similar land and business deals that require close attention from lawyers.
Meanwhile, the costs for outside counsel have grown, partly as a result of the city hiring private law firms to defend cops, and to execute other police-related legal strategies such as the controversial gang injunctions: In 2010-11, approximately $2,230,000 out of a total $6,380,000 paid for outside counsel went to fund police-related legal matters. Most of this, approximately $1.88 million, was to pay attorneys representing OPD officers in court. The remainder was to fund the two law firms that helped the city assemble the gang injunctions, costing about $190,000, and an employment law firm working on personnel matters that billed Oakland for $157,000.
These costly legal fees hint at a deeper structural issue within city government. Overall outside counsel costs rose by $2 million in 2010-11, due in large part to layoffs of city attorney staff. Ironically, the city council’s cost-cutting measures seem to have backfired, as the city attorney’s annual report notes: “Due to lack of in house capacity, the city has paid private attorneys significantly more money to litigate cases than it would have paid staff attorneys to litigate the same cases.”
The majority of settlements related to police misconduct must be paid out of Oakland’s own taxpayer funds. Through its membership in the California State Association of Counties, Excess Insurance Authority, Oakland protects itself against claims exceeding $4 million. However, because most individual settlements in police misconduct cases are less than $4 million, the city routinely pays the full amount. For example, only one settlement out of about 38 individual police-related settlements approved by the council in 2010-11 was greater than $4 million. The $5.92 million payout was related to a civil suit filed by attorneys Jim Chanin and John Burris over falsified search warrants. Oakland paid $4 million in that settlement deal, with the insurance authority fund picking up the remaining $1.92 million. City taxpayers paid the 37 other police misconduct settlements in full.
The way the city manages risks associated with costly settlements from police misconduct has been subject to much debate in the past. In 1997, the council, at the behest of a coalition of Oakland residents known as PUEBLO, passed the Risk Management Incentive Program in an effort to reward departments that cut expenses on claims and settlements, and penalize those that failed to do so. For three of the five years the program was in effect, OPD exceeded its estimated baseline liability losses, leading to recommended penalties of $900,000. In 2003, the City Administrator’s Office reported to the council that the program “had no effect on reducing the frequency of loss nor the severity of loss,” so the council abandoned it.
Oakland’s exposure for police-related lawsuits and claims is expected to rise significantly in 2012 and beyond because of several high-profile lawsuits related to officer-involved shootings, and allegations of unlawful arrest and excessive force during Oscar Grant and Occupy Oakland demonstrations. The families of 37-year-old Derrick Jones and 18-year-old Raheim Brown, shot to death on November 7, 2010 and January 22, 2011, respectively, by police (Jones was killed by OPD officers Eriberto Perez-Angeles and Omar Daza-Quiroz, Brown was fatally wounded by Jonathan Bellusa and Barhin Bhatt of OUSD Police) have filed separate $10 million claims against the city. Another lawsuit alleging excessive force violations by OPD officers during last fall’s Occupy Oakland demonstrations is also in the works — and the city is on the verge of settling a lawsuit over the mass arrest of 150 people on November 5, 2010 during a march protesting the sentencing of former BART police officer Johannes Mehserle.
“Oakland has basically admitted that the November 5th arrests were unlawful,” said Rachel Lederman, an attorney representing 150 people in a class-action suit related to the mass false arrests. “It’s an unusual case in that there are no facts for dispute.” The National Lawyers Guild, Oakland officials, and Alameda County (the Sheriff’s Department is also named in the suit) are reportedly close to a settlement agreement. However, Lederman said that if negotiations break off, a trial date will be set on July 9.