Judge clamps down after fired Oakland officers get reinstated

The reinstatements by arbitrators of two fired Oakland police officers raise questions about whether the city adequately prepares cases against cops it wants off the force, a federal judge said.

U.S. District Judge Thelton Henderson, who is overseeing the department's 11-year-old reform effort, ordered an investigation by the independent auditor who monitors the reforms.

In a sharply worded three-page order issued Thursday, Henderson said he was concerned that Officer Robert Roche had gotten his job back through binding arbitration two weeks ago.

Roche had been fired by the department for lobbing a tear-gas canister into a group of people trying to help Iraq War veteran and activist Scott Olsen, who had been struck in the head by a police beanbag during an Occupy Oakland protest in 2011.

The judge also cited the case of Officer Hector Jimenez, who was ordered back on the job by an arbitrator in 2011 after being fired for fatally shooting an unarmed drunken driving suspect in the back three years earlier.

Henderson said he had expressed concerns about Jimenez's rehiring, but found that the city's "promises to correct deficiencies at that time have fallen short, and further intervention by this court is now required."

The judge ordered independent compliance director Robert Warshaw to investigate "whether discipline is upheld at the highest level, most often arbitration. Just like any failure to impose appropriate discipline by the chief or city administrator, any reversal of appropriate discipline at arbitration undermines the very objectives of the (negotiated settlement agreement)."

That agreement on reforms was reached in the wake of the "Riders" scandal, in which a group of officers was accused of planting drugs and beating suspects in West Oakland in 2000.

Two criminal trials did not lead to convictions, but a civil suit led to a $10.5 million settlement and a promise by the city to overhaul the way the agency tracks and controls officers' conduct. Those efforts are still ongoing.

"While the court understands that there may be room for differences of opinion, and that not every disciplinary decision will be upheld at arbitration, the court questions whether defendants are adequately preparing cases for arbitration such that consistency of discipline can be assured to the great extent possible," Henderson wrote.

He directed Warshaw to investigate whether there were any "shortcomings" in the internal police review process, and to look into how the city chooses expert witnesses and attorneys who represent the city at arbitration.

The judge questioned whether the "city's representation at arbitration had been adequate," including whether outside attorneys working on behalf of Oakland "displayed sufficient case-specific and institutional knowledge."

Henderson also said he wanted to know whether the selection process for arbitrators "can and should be changed" and whether officers who are reinstated by arbitration "are appropriately trained and evaluated for fitness for duty for field work, including overtime assignments at special events."

City Attorney Barbara Parker said she was reviewing the order and could not comment.

Attorney John Burris, who represented plaintiffs in the civil suit that led to federal court oversight, said, "If cops can't be fired, that undermines the overall effect of all the reforms. It sends a message to all the officers that it doesn't matter what they say, that at the end of the day, they'll be cleared."