New Orleans’ Effort to Vacate Consent Decree Fails

by David M. Reutter

The Fifth Circuit Court of Appeals affirmed a Louisiana federal district court’s order denying the City of New Orleans’ (City) motion to vacate a consent decree related to past practices of the New Orleans Police Department (NOPD). Also discussed in the case was the consent decree entered between the Department of Justice and the Orleans Parish Prison (OPP) for the construction of a new jail building.

The U.S. Department of Justice (DOJ) began an investigation in May 2010 into alleged constitutional violations by the NOPD. That investigation began at the invitation of New Orleans Mayor Mitchell Landrieu, and on the same day the DOJ filed its complaint in federal court. The DOJ and the City agreed to a proposed consent decree.

As the action progressed, the City urged the court to approve the decree. When the court held a January 11, 2013 status conference, the City expressed “buyer’s remorse,” making an oral request to withdraw from the NOPD consent decree. The court, notwithstanding the City’s change of heart, approved the decree and denied the City’s subsequent motion to vacate it.

As the same time, the DOJ was also working with the OPP on a consent decree to correct unconstitutional conditions at the jail. The sheriff informed the city it would take about $45 million in 2012 to comply with the agreement, but the DOJ compromised on conditions, lowering the cost to $34.5 million. The City joined the DOJ a month later, moving the court to enter the OPP consent decree, which it did on June 2013.

The City appealed the district court’s order denying the motion to vacate the NOPD consent decree. It argued that the DOJ obtained its acquiescence to the decree without informing the City of the potential costs. The City said it cannot afford both consent decrees.

On appeal, the City raised several bases for revocation of the consent decree; the court rejected each argument. The City argued it did not consent to both consent decrees and it cannot afford them. The court agreed with the district court’s finding that the City’s position that “it had no knowledge of the potential cost ramifications” of the OPP lawsuit was “patently false.” Nothing had changed between the time the city agreed to the decree and the time it sought to withdraw, so there is no basis to vacate it.

Also rejected was the city’s argument that the NOPD consent decree raised potential legal problems under the Fair Labor Standards Act. The court further found that the venomous online rants by Assistant Attorney General Sal Perricone, a federal government attorney involved in the negotiations, did not qualify as “misconduct” under the Federal Rules of Civil Procedure where relief from the judgment should be granted. Finally, the City’s argument as to evidence being improperly admitted at the fairness hearing was not preserved for appeal and therefore also denied. The Fifth Circuit affirmed the district court’s judgment entering the NOPD consent decree and denied the motion to vacate it.

In related developments, New Orleans Parish Sheriff Marlin Gusman complied with the district court’s order to submit new plans for the jail building under construction. The court ordered those plans to include medical and mental-health facilities. A memorandum to the court dated July 26, 2013 states that the new plans put the required facilities on all four floors of the new jail, and the pods are designed to “house special needs inmates.” PLN will continue to update this story as events occur. See:
United States v. City of New Orleans, 731 F.3d 434 (5th Cir. La. 2013).

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