Motion of contempt/Felicia Anderson

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION FELICIA ANDERSON, Plaintiff, vs.

CITY OF ATLANTA, et al., Defendants.

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Civil Action No. 11-CV-3398-SCJ

PLAINTIFF'S REPLY IN SUPPORT OF HER MOTION FOR CONTEMPT SANCTIONS AGAINST DEFENDANT CITY OF ATLANTA (WITH BRIEF IN SUPPORT) The City’s Response offers essentially five arguments: 1.

Only one court-mandated reform was overlooked (the failure to add the SOP prohibitions regarding deletion and destruction of photographic and video evidence);

2.

The City’s non-compliance has now been rectified;

3.

The failure to revise SOP.2011 as ordered was inadvertent;

4.

There has been no harm from the City’s non-compliance;

5.

Because the City complied with other court orders imposing similar reforms, its failure to comply with this Court’s order should not result in sanctions.

In addition to being unsupported by the applicable law, these arguments are false and misleading.

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I.

THE CITY’S SUGGESTION THAT ONLY ONE REFORM WAS OVERLOOKED IS FALSE. The City claims “that one specific reform” was overlooked. (D.E. 18 at 1.)

That is simply untrue. Although the City pretends its failure to revise SOP.2011 was the only violation of this Order, an even more serious violation was the City’s failure to train police officers about the changes required by the Order.

Implementation of a policy change is meaningless unless police officers know about the change so they can act accordingly. The Order in this case changed APD’s standard operating procedure in two important ways – by prohibiting the destruction of evidence, and by increasing the penalty for interfering with the public’s right to record police activity to dismissal – and the City’s failure to train police officers about either of these two changes is perhaps a more serious violation of the Court’s Order than the City’s failure to revise SOP.2011 itself.

II.

THE CITY’S SUGGESTION THAT ITS NON-COMPLIANCE HAS NOW BEEN CURED IS FALSE; THE REQUIRED TRAINING HAS STILL NOT BEEN PROVIDED. The City’s Response suggests that it has now complied with the Court’s

order but the City provided absolutely no indication that police officers have been given recurrent training about either the new prohibition on destruction of

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evidence (SOP.2011), or the new penalty for interfering with the public’s right to record police activity (SOP.2020).

Far more notably, the City’s Response did not propose a schedule or mechanism for remedying this non-compliance. From the face of the Response filed by the City there is no reason to believe the City intends to conduct this training at all. No better case for coercive sanctions could be made than the City’s own failure to propose any plan for remedial compliance.

A.

“Roll call training” using the old, unrevised SOP does not constitute the training required by the Order.

The City’s response emphasizes that its use of “roll call training” is an appropriate way to train police officers. (D.E. 18 at 8.) But part of the problem with the “roll call training” offered by the City is that the City trained officers about the wrong SOP. In a rushed attempt to “comply” with this Order – with the obvious goal of avoiding sanctions rather than providing officers with meaningful training – the City had sergeants and lieutenants read SOP.2011 at roll call in December, 2014, but they read the old, unrevised, pre-Order version of SOP.2011.1 The email instructing sergeants and lieutenants to read SOP.2011 is dated December 8, 2014; before the SOP was revised. (D.E. 17-11 at 2.) And the

1 Interspersed within the many roll call sign in sheets provided by the City to Plaintiff’s counsel are copies of the old, unrevised, SOP.2011 that were apparently used to “train” officers at roll call. (See D.E. 17-12 at 69-72; D.E. 17-13 at 40-44, 54-56, 61-63.)

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hundreds of pages produced by the City all reflect training based on the old, unrevised version of SOP.2011, even for a session conducted on December 19, 2014, after the SOP was finally revised. (D.E. 17-10 at 71-72.) And those hundreds of pages also fail to make a single mention of officers being trained that the new penalty for interfering with or deleting photographs or videos is dismissal.

B.

Even Atlanta police officers believe the City’s failure to train them is a serious violation, and that the City should be made to comply with this Order.

The City’s failure to conduct appropriate training is of concern not only to Plaintiff but to Atlanta’s police officers themselves. When the Atlanta police union – the International Brotherhood of Police Officers Local 623 (the “Police Union”) – became aware of the City’s failure to train officers as described in this motion for contempt sanctions, the Union addressed a letter to this Court and other courts that have issued similar training orders. Letter of Ken Allen, President of IBPO Local 623, Mar. 13, 2015, Ex. A. The Police Union notes that “adequate training on these issues appears to have fallen short of the intended outcome” and states there is a “disconnect” between the training required by these orders and “what actual training has been given.” The Union summarized its position as follows: IBPO Local 623 fundamentally believes that the CITY of ATLANTA should adhere to and follow any COURT ORDERED training to ensure that the Rank-and-File of the Atlanta Police Department meet 4

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and/or exceed the courts expected standards. Any shortcoming in these expectations increases the risk of disciplinary actions towards the officers, and further creates the possibility of criminal and/or civil liabilities. […]

IBPO Local 623 Leadership agrees that these particular topics of court-ordered training are of the utmost importance and ALL standards must be met and maintained, to prevent conflicts of interest and future liabilities.

(Id.) When the City’s failure to train police officers is viewed as a serious problem by the officers themselves, it is an indication that this Court should take whatever measures are required to coerce the City into providing its police officers with the appropriate court-ordered training, now and in the future.

III.

THE CITY’S ARGUMENT THAT NON-COMPLIANCE WAS “INADVERTENT” IS BOTH FACTUALLY MISLEADING AND LEGALLY IRRELEVANT. A.

Describing this failure as “inadvertent” misrepresents the gravity of the violation.

The City concedes that it failed to comply with this Court’s order by not revising SOP.2011 but argues that its failure was “inadvertent” and should therefore be excused. The benign word “inadvertent” does not fairly describe the City’s violation; considering how simple it would have been for the City to comply with the Court’s order back in March 2012 – by cutting-and-pasting two short paragraphs directly from the Order into SOP.2011 – what the City describes

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as an “inadvertent” oversight is better characterized as a complete and reckless disregard for the order of a federal court.

Although one would imagine that the City of Atlanta’s Law Department has various individuals charged with oversight responsibility to ensure that court orders are obeyed, it is now obvious that this process is either non-existent or ineffective. This Court should therefore impose a sanction sufficiently coercive to persuade the City to adopt a reliable oversight process for the future and ensure that it is rigorously followed.

B.

Inadvertence is not a defense to contempt.

The City attempts to minimize its conduct as “inadvertent” but inadvertence does not provide a defense to contempt. As the Eleventh Circuit has stated, “the focus of the court’s inquiry in civil contempt proceedings is not on the subjective beliefs or intent of the alleged contemnors in complying with the order, but whether in fact their conduct complied with the order at issue.”

Howard Johnson Co., Inc. v. Khiman, 892 F.2d 1512, 1516 (11th Cir. 1990) (citation omitted). See also, Vuitton et Fils SA v. Carousel Handbags, 592 F.2d 126, 128 n.2 (2d Cir. 1979) (“The fact that the prohibited act was done inadvertently or in good faith … does not preclude a citation for civil contempt, for the sanction is remedial in nature”) (citations omitted).

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In any event, the City’s efforts to cure its “inadvertent” noncompliance have come much too late; the law requires that attempts to comply with a court order be done with “reasonable diligence” before they will be considered a defense to a contempt charge, and reasonable diligence means the offending party must “become aware of [its non-compliant behavior] quickly – through its own efforts, not those of [the complainant] – and to set about correcting them.”

Sizzler Fam. Steak Houses v. Western Sizzlin Steak, 793 F.2d 1529, 1537 (11th Cir. 1986).

The City has conceded that the only action it took on its own to comply with the Court’s order came on May 9, 2012, when it revised SOP.2020 to increase the penalty for an officer’s violation of Section 4.4.1 of SOP.2011. (D.E. 18 at 3-4.) Since that time the City has done nothing, on its own, to further comply with the Court’s order. By whatever measure the Court uses, the City’s behavior cannot be seen as “reasonably diligent”.

IV.

THE CITY’S ARGUMENT ABOUT “HARM” IS WRONG BOTH FACTUALLY AND LEGALLY. The City argues “there has been no harm as a result of the inadvertent

omission.” (D.E. 18 at 6.) It is hard to accept the City’s argument that its noncompliance has not resulted in harm when the City’s own police officers themselves feel harmed. As the letter from the Police Union states, a failure to

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provide appropriate training “increases the risk of disciplinary actions towards the officers, and further creates the possibility of criminal and/or civil liabilities.”

Allen Letter, Ex. A. It is fundamentally unfair for a city to send its police officers out to the streets without adequate (and in this case, court ordered) training to help them to comply with the law.

The City’s failure to conduct recurrent training regarding the new dismissal penalty under SOP.2020 is especially disturbing, because for the past two and a half years – and still at the present time – Atlanta police officers have been exposed to an exceptionally harsh penalty without the advance warning that any employee has a right to expect.

It is also hard to credit the City’s request to be relieved of sanctions when the very evidence offered by the City demonstrates the importance of strict enforcement of this Court’s Order. In an attempt to show that its non-compliance has not resulted in harm, the City points to an Atlanta Police Department Internal Affairs (OPS) report. (D.E. 18-4.) With an irony that the City could not have intended, and evidently didn’t even realize, this report demonstrates the importance of strict enforcement of the Order better than any evidence the Plaintiff could have uncovered on her own.

The Internal Affairs report relied on by the City concerns an incident in which an Atlanta police officer, Christopher Kitcho, beat the head and face of a 8

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man he had already placed in handcuffs. APD’s Internal Affairs unit sustained the allegation of excessive force against Officer Kitcho, who denied any wrongdoing, only because the incident was caught on video by a civilian with a cell phone. The concluding paragraph of the Internal Affairs report filed by the City states: The video, taken by Mr. Sawn Lima on his cell phone, shows that Inv. Kitcho is in the process of handcuffing Mr. Mitchell. He locks down the left handcuff, and then strikes him in the left side of the face, after the handcuffs are secured.

(D.E. 18-4 at 55.)2 Plaintiff herself could not have discovered a better example to illustrate the importance of strict enforcement of this Court’s order than this Internal Affairs report. This incident emphasizes the importance of training officers about the prohibition against destroying video evidence and reminding them that the penalty for interfering with video recording is dismissal; something the City has still not done.

2 Officer Kitcho later resigned from the Atlanta Police Department to avoid termination, and was subsequently arrested by DeKalb police for an entirely unrelated crime. Police: Cocaine, steroids found in ex-APD officer's home, WSB-TV, Sept. 1, 2014, http://www.wsbtv.com/news/news/local/police-find-drugs-steroids-former-apd-officershom/nhDMC/; Mike Morris, Atlanta police issue arrest warrant for former APD detective, The Atlanta Journal-Constitution, Sept. 1, 2014, http://www.ajc.com/news/news/atlanta-police-issuearrest-warrant-for-former-apd/nhDL3/.

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The City’s other argument about “harm” is also factually inaccurate. The City falsely represented to this Court that John Ruch, the Creative Loafing reporter who was arrested while covering the Ferguson protests, was arrested for blocking traffic on I-75/I-85 and refusing to comply with a dispersal order to clear the highway (D.E. 18 at 6.) But Mr. Ruch was nowhere near the interstate highway; he was only placed there by officers after they took him into custody.

(See Decl. of Clayton Adams, Esq. attached hereto as Ex. B.) In another clearly unintended irony the City claims to have “no record” of the Internal Affairs (OPS) complaint filed by Mr. Ruch and in the very next sentence claims that “only one OPS complaint has been filed for violation of the SOP at issue.” (D.E. 18 at 7.) But as Mr. Ruch’s attorney explains in the attached declaration, he filed an OPS complaint on Mr. Ruch’s behalf on February 3, 2015.

(See Adams Decl. ¶¶ 3-4, Ex. B.) If the City of Atlanta is unable to locate the OPS complaint filed by Mr. Ruch, how does it expect the Court to accept its assertion that “only one OPS complaint has been filed” for violation of that SOP? The City’s discussion of harm is also misplaced as a matter of law, because the law does not require Plaintiff to establish actual harm in order to prevail in this contempt proceeding. The City’s liability for contempt depends entirely on whether the City has, in fact, complied with the Court’s order. Howard Johnson Co., Inc., 892 F.2d at 1516. Once liability is established the Court may impose 10

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sanctions against the City to achieve “either or both of two purposes: to coerce the defendant into compliance with the court’s order, and to compensate the complainant for losses sustained.” Local 28 of the Sheet Metal Workers’ Int’l Assoc. v. EEOC, 478 U.S. 421, 443 (1986) (citation and internal quotation marks omitted).

Indeed, the Eleventh Circuit has found a compensatory civil contempt sanction in the amount of $25,000.00 appropriate where the complainant submitted “no proof of damage caused [to it] by [the] allegedly contemptuous conduct.” Sizzler Fam. Steak Houses, 793, F.2d at 1534. See also EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1516 (11th Cir 1987).

But to the extent the City’s longstanding failure to comply with the Court’s order has, in fact, led to harm – such as exposing police officers to the risk of liability and disciplinary action by not providing them with adequate training, or the arrests of journalists like Mr. Ruch for documenting police activity – such harm should be taken into account by the Court in fashioning an appropriately coercive remedy. See United States v. United Mine Workers of America, 33 U.S. 258, 304 (1947) (in imposing coercive sanctions, court should “consider the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of any suggested sanction in bringing about the result desired”) (footnote omitted).

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V.

THE CITY’S CLAIM THAT IT HAS COMPLIED WITH SIMILAR COURT ORDERS IS FALSE. In yet another unintended irony, the City’s Response referred to two other

Northern District of Georgia cases in which the City was ordered to implement APD SOP revisions and provide appropriate training: Calhoun v. Pennington, No. 1:09-CV-3286-TCB and Walker v. Reed, No. 1:11-CV-3334-CAP. (D.E. 18 at 7.)3 In its attempt to avoid sanctions the City argues that it has “invested the time, effort and expense to implement the widespread reforms” ordered in Calhoun and Walker and that the City’s conduct in these cases demonstrates its “consistent compliance with court orders.” (Id.) The City’s suggestion that it has complied with the Calhoun and Walker orders is false, and possibly in violation of the City’s duty of candor to the Court.

If anything, examination of the City’s conduct in Walker and Calhoun is the best argument for the need for this Court to impose harsh sanctions to coerce the City to comply with its court-ordered obligations.

In the Calhoun case, in particular, the City has engaged in a longstanding pattern of defiance of the court. That case was settled on December 8, 2010, with a Settlement Order that required the City to enact various reforms including SOP

3 The plaintiffs in Calhoun and Walker are represented by some of the same counsel who represent the Plaintiff in this action. Daniel Grossman and Gerald Weber, along with other attorneys, represent the plaintiffs in Calhoun, and Daniel Grossman, along with another attorney, represents the plaintiff in Walker.

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revisions and mandatory training. The City failed to implement the reforms contained in the Settlement Order and the plaintiffs in that case had to file a motion for sanctions to achieve compliance. The City only agreed to comply fully with the Calhoun settlement – and pay attorney fees for its previous noncompliance – in December 2011, a full year after the order was issued and just one week before a scheduled hearing on sanctions. (See Joint Status Report and Consent Agreement in Calhoun v. Pennington et al., dated Dec. 14, 2011, attached hereto as Ex. C.) And the Calhoun plaintiffs recently discovered that, despite having paid attorney fees for non-compliance in 2011, the City is once again in violation of the Calhoun order. The Calhoun plaintiffs have filed another motion to enforce compliance, a copy of which is attached here as Exhibit D. Among other examples of the City’s defiance of the court in Calhoun, after revising a critical Fourth Amendment operating procedure (Atlanta’s “stop and frisk” SOP) to avoid sanctions in December, 2011, the City removed that “permanent” SOP revision in 2013, without notice to either plaintiffs or the court, in direct violation of the Calhoun court’s December 15, 2011 order. (See Calhoun Contempt Motion at 4-8, Ex. D.) The City’s respect for the court order in Walker is equally lacking and the Walker plaintiffs have discovered, as here, that recurrent training ordered by the 13

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court has never been provided. On March 20, 2012, the court in Walker ordered the City “to conduct mandatory in-person training of all Atlanta police officers every two years” regarding the unlawfulness of strip searching suspects in public. (Order in Walker v. Reed, attached hereto as Ex. E.) Yet the City apparently made no attempt whatsoever to comply with that order until December 2014, after it was alerted to its non-compliance by the Walker plaintiffs. As here, the City’s belated attempt at compliance in Walker consisted of the same rushed, noncompliant reading of SOPs at roll call that it employed in this case in an attempt to avoid sanctions, two and a half years after entry of the Walker order.4 CONCLUSION We are now just a few days shy of the three-year anniversary of the Order in this case and the City has still not fully complied, or even proposed a schedule for remedial compliance.

4 The City claims in its response papers that it conducted the court-mandated training in Walker during the “2012-2014 period” (Response Brief 5), but it has supplied the plaintiffs there with no evidence that this is the case even though plaintiffs’ counsel had repeatedly asked for this kind of information (see, e.g., D.E. 17-14 [Letter from Dan Grossman to Deputy City Attorney Karen Gilpin Thomas, dated Jan. 27, 2015]). Of the evidence the City has supplied to plaintiff’s counsel with respect to its compliance in Walker, this evidence reflects, without exception, that all the “training” the City conducted in relation to the court’s order occurred in December 2014, after the City received notice of its noncompliance from counsel. (See, e.g., D.E. 17-9 at 1, 4, 6, 8, 10, 12, 14, 16, 18, 21-22, 25-26, 29-30, 32, 35-37, 39, 41, 44, 48-51, 56, 59, 61, 64-65, 70-72.

[APD Training Documents, Part 1 of 5]; D.E. 17-10 at 1-8, 13, 16-17, 19, 22-23, 25-26, 28-29, 32-33, 38-39, 41-42, 47-50, 52, 55, 56, 58 61-62, 64-65, 67-68. [APD Training Documents, Part 2 of 5].

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For years, and in numerous cases, the City has demonstrated that it is unable or unwilling to comply on its own accord with court orders involving the Atlanta Police Department. Even the simplest orders, such as adding specific language to a SOP, are not always obeyed, and when the City finally does obey an order, such as the revision to SOP.3065 in the Calhoun case, it cannot be trusted to leave the measure in place. And with regard to orders requiring police training, the City’s track record of training its officers is so dismal that even the City’s police officers themselves are now complaining.

It is clear that court orders, standing alone, are not enough to change the behavior of the City. Something more is needed. Coercive sanctions will encourage compliance and deter future violations, and the City should also be required to notify Plaintiff of any changes to SOPs governed by the Order and to affirmatively report compliance efforts to Plaintiff and allow Plaintiff to monitor those efforts.

Respectfully submitted this 17th day of March, 2015. /s/ Daniel J. Grossman Georgia Bar No. 313815 Law Office of Daniel J. Grossman 1579 Monroe Drive, Ste. F-138 Atlanta, GA 30324 (404) 654-0326

/s/ Gerald Weber Georgia Bar No. 744878 Southern Center for Human Rights 83 Poplar Street, NW Atlanta, GA 30303 (404) 688-1202

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/s/ Albert Wan Georgia Bar No. 334224 Law Office of Albert Wan, P.C. 215 Church Street, Ste. 110 Decatur, GA 30030 (404) 872-7760

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CERTIFICATION Counsel for Plaintiff certify that this brief has been prepared with Times New Roman font, 14 point, and therefore it complies with the requirements of Local Rule 5.1.C.

CERTIFICATE OF SERVICE I hereby certify that on March 17, 2015, I electronically filed the attached with the Clerk of Court using the CM/ECF system which will automatically send email notification of such filing to the following attorney of record: Robert Godfrey Tamara N. Baines LaShawn Terry Attorneys for Defendant City of Atlanta City of Atlanta Department of Law 68 Mitchell Street Atlanta, Georgia 30303 /s Albert Wan, Esq. Albert Wan (Georgia Bar No. 334224) Law Office of Albert Wan, P.C. 215 Church Street Suite 110 Decatur, GA 30030 albert@albertwanlaw.com (404) 872-7760

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