Radley Balko  twitted something so facially outrageous as to demand a reading, that “Oakland Cops Point Guns at Sleeping One-Year-Old.” Come on. But that was the story’s lede :

Two Oakland police officers pointed their firearms at a sleeping nineteen-month-old child while investigating a misdemeanor crime, according to a new report released Thursday. The sleeping child posed no threat to the officers, and yet they pointed their guns at the one-year-old anyway.

Well that caught my attention, but it wasn’t the point of the story at all.  The point came in the sentence that followed:

The alarming incident was cited by Independent Monitor Robert Warshaw in his latest report on OPD misconduct. Warshaw noted that the department has had a history of overly aggressive behavior toward city residents. Warshaw also noted in his report that OPD not only failed to make any progress in living up to court-mandated reforms in the latest monitoring period, but actually lost ground for the second quarter in a row.

Oakland police were subject to a monitor who reports to Judge Thelton Henderson.  While Oakland has made such bold moves as hiring former New York City police commissioner and sparring partner of Rudy Guiliani, Bill Bratton of Broken Windows fame, it doesn’t seem that Bratton has made much difference.

Warshaw’s report also comes in stark contrast to recent statements by Mayor Jean Quan. At a January 23 press conference following the approval of a contract to hire William Bratton, Quan was bullish on the future of the Oakland Police Department. “The reality is that we’re making progress, this police department is changing,” she said of OPD’s decade-old federal reform effort.

But according to Warshaw’s latest report, nothing could be further from the truth. Warshaw, who is responsible for auditing OPD’s progress, found in the most recent quarterly report that OPD’s compliance with the Negotiated Settlement Agreement reforms decreased for the second quarter in a row. In the report’s executive summary, Warshaw wrote that the incomplete efforts deal with “critical supervisory and investigative tasks” which are “at the very core of Constitutional policing.”

While the use of the phrase “occupying army” causes visions of tin foil hats, it may not be too far off when it comes to OPD. Not only were they out of control, but they can’t seem to be reined in.

All of which raises a very troubling question: Now what?

So Warshaw, the monitor, says things aren’t only not getting better, but they’re getting worse. So what, Judge Henderson, do you plan to do about it? 

This is the problem with telling someone “or else.”  Then you have to back it up with something. What exactly will a court do to make unconstitutional policing stop? Will he disband the police force?  Will he fire all the officers and hire new ones?

When the problem is an identified individual or group, or a particular policy or tactic, it can be addressed. Cops can be fired or prosecuted. Policies and tactics can be held unconstitutional, and judges can toss anyone arrested unlawfully, maybe even allow a civil action for the violation of rights.

But then the problem is so pervasive, so systemic, that there is no individual to blame, no policy to rip, what then?

When a court concludes that a police department is so out of control that it can no longer run itself, it risks its integrity by seizing control.  This ends up showing the legal system to be lacking in the ability to ultimately enforce the law, compel men with guns and shields to abide the Constitution.  The judicial branch isn’t called “the least dangerous” for nothing; they have no army to back them up, no force to make people adhere to their commands.

The Oakland Police Department has refused to change. The monitor can document the wrongs all he wants, but that brings no comfort. The judge can write opinion after opinion about how bad they are, but that won’t stop cops on the street from doing whatever they want to do.

While individual stories of harm can be heartbreaking, this story is far more insidious.  So two Oakland cops pointed a gun at a sleeping baby. Unreal.  But that it doesn’t appear that our government has the power to stop them from pointing a gun at anyone they want is even more troubling, as there are more cops, more guns and more babies. What if it never stops?