A. Role of the Independent Monitor
350. The Parties will jointly select an Independent Monitor (“Monitor”) who will assess and report whether the requirements of this Agreement have been implemented, and whether this implementation is resulting in constitutional and effective policing, professional treatment of individuals, and increased community trust of CDP. The Monitor will work with the Parties to identify and address any barriers to compliance.
351. The Monitor will only have the duties, responsibilities, and authority conferred by this Agreement. The Monitor will not, and is not intended to, replace or assume the role and duties of any CDP employee, including the Chief, or any other City official. Nothing in this Agreement alters the fact that the Mayor of Cleveland retains authority over the CDP and the Chief of CDP maintains the authority to oversee the operations of CDP. As an agent of the Court, the Monitor will be subject to the supervision and orders of the Court, consistent with this Agreement and applicable law.
352. In order to assess and report on CDP’s implementation of this Agreement and whether the goals of this Agreement are being achieved, the Monitor will conduct the reviews specified in this Agreement, and will review CDP policies, procedures, practices, training curricula, and programs developed and implemented under this Agreement.
B. Selection and Compensation of the Monitor
353. Within 90 days of the Effective Date, or additional time if agreed to by the Parties, the City and DOJ will together select a Monitor, acceptable to both Parties, to assess and report on CDP’s implementation of this Agreement. The Parties have agreed to use an open Request for Information process in selecting the Monitor. This process will be implemented in a manner consistent with this Agreement, including the requirement that the Monitor be jointly selected and acceptable to both DOJ and the City. The Parties’ Monitor selection will be subject to the approval of the Court with jurisdiction over this Agreement. The Monitor will be comprised of individuals of the highest ethics.
354. If the Parties are unable to agree on a Monitor or an alternative method of selection within the timeframe agreed to by the Parties, each Party will submit the names of three candidates, or three groups of candidates, along with resumes and cost proposals, to the Court, and the Court will select a Monitor from among the qualified candidates/candidate groups.
355. The Monitor will be appointed for a period of five years from the Effective Date and will have its appointment extended automatically should the City and CDP not demonstrate Substantial and Effective Compliance at the end of this five-year period. The extension of the Monitor beyond seven years will be allowed only if the Court determines that it is reasonably necessary in order to assess and facilitate Substantial and Effective Compliance with this Agreement. The Monitor’s appointment will terminate prior to five years if the City has achieved Substantial and Effective Compliance for the time specified in paragraph 401.
356. The City will bear all reasonable fees and costs of the Monitor. DOJ and the City recognize the importance of ensuring that the fees and costs borne by the City are reasonable, and accordingly fees and costs will be one factor to be considered in selecting the Monitor. In the event that any dispute arises regarding the reasonableness or payment of the Monitor’s fees and costs, the City, DOJ, and the Monitor will attempt to resolve such dispute cooperatively prior to seeking the assistance of the Court. If the City and DOJ agree, and the Court approves, an independent third party with no financial interest in the case may pay some or all of the fees and costs of the Monitor.
357. The City will provide the Monitor with permanent office space and reasonable office support such as office furniture, telephones, Internet access, secure document storage, and photocopying.
358. The Monitor, at any time after its initial selection, may request to be allowed to hire, employ, or contract with such additional persons or entities as are reasonably necessary to perform the tasks assigned to the Monitor by this Agreement. Any person or entity hired or otherwise retained by the Monitor to assist in furthering any provision of this Agreement will be subject to the provisions of this Agreement. The Monitor will notify the City and DOJ in writing if the Monitor wishes to select such additional persons or entities. The notice will identify and describe the qualifications of the person or entity to be hired or employed and the monitoring task to be performed. If the City and DOJ agree with the Monitor’s proposal, the Monitor will be authorized to hire or employ such additional persons or entities. The City and the DOJ have ten business days to disagree with any such proposal. If the City and DOJ are unable to reach agreement within ten business days of receiving notice of the disagreement, the Court will resolve the dispute.
359. Should any of the Parties to this Agreement determine that the Monitor’s individual members, agents, employees, or independent contractors have exceeded their authority, or failed to satisfactorily perform the duties required by this Agreement, the Party may petition the Court for such relief as the Court deems appropriate, including replacement of the Monitor, and/or any individual members, agents, employees, or independent contractors.
C. Compliance Reviews
360. The Monitor will conduct reviews or audits as necessary to determine whether the City and CDP have complied with the requirements of this Agreement. Compliance requires that the City and CDP: (a) have incorporated the requirement into policy; (b) have trained all relevant personnel as necessary to fulfill their responsibilities pursuant to the requirement; and (c) are carrying out the requirement in actual practice. Compliance reviews and audits will contain the elements necessary for reliability and comprehensiveness. Compliance reviews and audits may be conducted using sampling and compilation data where appropriate.
D. Biennial Community Survey
361. Within 180 days of the Effective Date, and every two years thereafter, the Monitor will conduct a reliable, comprehensive, and representative survey of members of the Cleveland community regarding their experiences with and perceptions of CDP and of public safety. Analysis of the results of this survey will be included in the outcome assessments that are described in paragraph 367 and that may be used to demonstrate sustained compliance with this Agreement.
362. The City and DOJ will endeavor to secure private funding for the biennial community survey.
363. To conduct the biennial community survey, the Monitor will:
a. develop a baseline of measures on public satisfaction with policing, attitudes among police personnel, and the quality of police-citizen encounters;
b. design, conduct, and analyze baseline and subsequent biennial surveys of a representative sample of City residents, police personnel, and detained arrestees;
c. review and consider prior law enforcement surveys in Cleveland and other cities, as well as current or recent concerns in Cleveland, in designing the survey;
d. observe community meetings and engage in informal conversations with Cleveland residents, CDP officers and command staff, and other relevant individuals, including DOJ representatives during the pendency of this Agreement;
e. ensure that the resident and arrestee surveys are designed to capture a representative sample of Cleveland residents, including members of each demographic category;
f. conduct the survey in English, Spanish, and other languages, as necessary, to ensure representation of the entire Cleveland community; and
g. formally discuss the survey methodology with CDP supervisors and DOJ representatives, throughout the pcndency of this Agreement, and consider these opinions in the development of the initial survey and in making improvements to subsequent surveys.
364. CDP and the City agree to cooperate with the design and perfonnance of the survey.
365. The report of the baseline survey and subsequent biennial surveys will be posted to the City’s website, and publicly distributed.
366. CDP will analyze the results of the survey and will use this analysis to modify and improve CDP policies, procedures, practices, and protocols, as needed.
E. Outcome Measurements
367. In addition to compliance reviews and audits, the Monitor will conduct qualitative and quantitative assessments to measure whether implementing this Agreement has resulted in constitutional policing. The measurements relating to use of force; addressing individuals in crisis; and stop, search, and arrest are not intended to expand the City’s data collection requirements set forth elsewhere in the Agreement. These outcome assessments will include collecting and analyzing. at least annually, the following outcome data, trends, and patterns:
a. Use of force measurements, including:
1. number of use-of-force incidents as compared to number of arrests, with use-of-force incidents broken down by force type, District, type of related arrest (if any); actual or perceived race, ethnicity, age, and gender of the subject; and, if indicated at the time force was used, the subject’s mental or medical condition, use of drugs or alcohol, or the presence of a disability;
2. number of injuries to officers and public, the rate at which officer and subject injuries decrease or increase overall and by severity of injury; number of force complaints, disposition of complaints, source of complaint (internal or external), force type, geographic area, and any identified demographic category of complainant;
3. the rate at which ECW usage decreases or increases compared to the use of force overall and by weapon;
4. number of uses of force found to violate policy, broken down by force type, geographic area, type of arrest; actual or perceived race, ethnicity, age, and gender of the subject; and, if indicated at the time force was used, the subject’s mental or medical condition, use of drugs or alcohol, or the presence of a disability;
5. number of officers who have more than one instance of use of force in violation of policy;
6. force reviews or investigations indicating a policy, training, or tactical deficiency; and
7. quality of use of force investigations and reviews; and number and rate of use of force administrative investigations which are returned for lack of completeness.
b. Addressing individuals in crisis measurements, including:
1. number of calls for service and incidents that appear to involve an individual in crisis, broken down by whether specialized CIT officers responded to the calls; and the rate of individuals in crisis directed to the healthcare system, rather than the judicial system;
2. number of police interactions where force was used on individuals in crisis, including the type of fo rce used; the reason for the interaction, i.e., suspected criminal conduct or a call for assistance; the threat to public safety, including whether the person was armed and if so, with what; a description of the type of resistance offered, if any; and a description of any attempts at de-escalation.
c. Stop, Search, and Arrest measurements, including:
1. total number of investigatory stops, searches and arrests overall and broken down by District (understanding that different Districts may have inherently different demographic compositions), type of arrest, actual or perceived age, race, gender, and ethnicity of subject, and the rate at which the encounters resulted in a summons or arrest;
2. data related to the documented reasonable suspicion to stop and probable cause search or arrest, broken down by the actual or perceived race, gender, age, and ethnicity of the person(s) stopped/searched/arrested; 3. number of searches that resulted in a finding or contraband, overall and broken down by District (understanding that different Districts may have inherently different demographic compositions), type of arrest, and the actual or perceived age, race, gender, and ethnicity of subject.
d. Bias-Free Policing and Community Engagement measurements, including:
1. number and variety of community partnerships, including partnerships with youth;
2. homicide clearance rate;
3. number of civilian complaints regarding police services related to discrimination and their disposition; and
4. analysis of results of biennial community survey, when available.
e. Recruitment measurements, including:
1. number of qualified recruit applicants;
2. detailed summary of recruitment activities, including development and leveraging of community partnerships;
3. number and race, ethnicity, gender, and any self-identified disability of applicants who failed the initial screening and the reasons for their failure;
4. number of applicants with fluency in languages other than English, and the specific languages spoken;
5. number and race, ethnicity, gender, or self-identified disability of lateral candidates, and a list of their former agencies and years of service;
6. number of applicants with at least two years of college, a college degree, or at least two years of military service;
7. pass/fail rate in each phase of the pre-employment process by race, ethnicity, gender, and self-identified disability of applicants;
8. the average length of time to move applicants through each phase of the pre-employment process and average amount of time to process applicants; and
9. composition of recruit classes by race, ethnicity, gender, and self-identified disability.
f. Training measurements, including:
1. number and percentage of officers provided training pursuant to this Agreement, broken down by the type of training provided;
2. students’ evaluations of the adequacy of training in type and frequency; 3. modifications or improvements to training resulting from the review and analysis required by this Agreement; and
4. prevalence of training deficiencies as reflected by problematic incidents or performance trends.
g. Officer assistance and support measurements, including:
1. availability and use of officer assistance and support services; and
2. officer reports or surveys of adequacy of officer assistance and support.
h. Supervision measurements, including supervisors’ initial identification of officer violations and performance problems, and the supervisors’ responses to those violations and problems;
1. Civilian complaints, internal investigations, and discipline, including: 1. number of complaints, and whether any increase or decrease in this number appears related to access to the complaint process;
2. number of sustained, exonerated, unfounded, not sustained, and administratively dismissed complaints by type of complaint;
3. number of complaint allegations supported by a preponderance of the evidence;
4. average length of time to complete investigations by complaint type;
5. number of officers who were subjects of multiple complaints or who had repeated instances of sustained complaints;
6. arrests of officers for on- and off-duty conduct;
7. criminal prosecutions of officers for on-or off-duty conduct; and
8. other than vehicle accidents not involving a pursuit, number and nature of civil suits against the City or CDP officers for work related conduct, and the amount of judgments against or settlements resulting from those civil suits.
J. In conducting these outcome assessments, the Monitor may use any relevant data collected and maintained by CDP or the City (e.g., crime trend pattern analysis), provided that the Monitor has determined, and the Parties agree, that this data is reasonably reliable and complete.
F. Monitoring Plan and Review Methodology
368. Within 90 days of assuming the duties as the Monitor, the Monitor will review and recommend any changes to the outcome measures detailed above that the Monitor deems useful in assessing whether implementation of this Agreement is resulting in constitutional policing. Recognizing that the above outcome measures have been negotiated and agreed to by the Parties, the Parties will move the Court to adopt any recommendations upon which they agree.
369. Within 120 days of assuming the duties as the Monitor, the Monitor will develop a plan for conducting the compliance reviews and outcome assessments, and will submit this plan to the Parties for review and approval. This plan will:
a. clearly delineate the requirements of this Agreement to be assessed for compliance, indicating which requirements will be assessed together;
b. set out a schedule for conducting outcome measure assessments for each outcome measure at least annually, except where otherwise noted, with the first assessment occurring within 365 days of the Effective Date; and
c. set out a schedule for conducting a compliance review or audit of each requirement of this Agreement within the first two years of this Agreement, and a compliance review or audit of each requirement at least annually thereafter, unless the Monitor no longer assesses that requirement as provided in the next paragraph.
370. Where the Monitor recommends and the Parties agree, the Monitor may refrain from conducting a compliance review of a requirement previously found to be in compliance by the Monitor, or where outcome assessments indicate that the outcome intended by the requirement has been achieved. The City and CDP will be deemed to have achieved Substantial and Effective Compliance on those requirements and the City’s obligations under those provisions will be deemed to have been met for the purpose of seeking termination of this Agreement, without considering the one or two year sustained compliance requirement.
371. At least 90 days prior to the initiation or any outcome measure assessment, compliance review, or audit, the Monitor will submit a proposed methodology for the assessment, review, or audit to the Parties. The Parties will submit any comments or concerns regarding the proposed methodology to the Monitor no later than 45 days prior to the proposed date of the assessment, review, or audit. The Monitor will modify the methodology as necessary to address any concerns or will inform the Parties in writing or the reasons it is not modifying its proposed methodology. Any unresolved disputes involving the Monitor’s methodology may be submitted to the Court for resolution.
G. Monitor Recommendations and Technical Assistance
372. The Monitor may make recommendations to the Parties regarding actions necessary to ensure timely Substantial and Effective compliance with this Agreement and its underlying objectives. Such recommendations may include a recommendation to change, modify, or amend a provision of this Agreement, a recommendation for additional training in any area related to this Agreement, or a recommendation to seek technical assistance. In addition to such recommendations, the Monitor may also, at the request of DOJ or the City and based on the Monitor’s reviews, provide technical assistance consistent with the Monitor’s responsibilities under this Agreement.
373. In the event that Substantial and Effective Compliance with this Agreement requires technical assistance beyond the scope of the Monitor’s duties, DOJ, CDP, and/or the Monitor will inform the Parties of the need for technical assistance and its relation to compliance with this Agreement. The Monitor, with assistance from the City, will arrange for the prompt initiation of the required technical assistance, to be performed by the Monitor, its agent, independent contractor, or a separate entity. The cost for the technical assistance will be borne by the City. If any Party disagrees with the need for the requested technical assistance, the Party will, within IS days of being informed in writing of the requested technical assistance, inform the Court, which will resolve the dispute.
H. Comprehensive Reassessment
374. Two years and six months after the Effective Date, the Monitor will conduct a comprehensive outcome assessment to determine whether and to what extent the outcomes intended by this agreement are being achieved, and whether any modifications to this Agreement are necessary for achievement in light of changed circumstances or unanticipated impact (or lack of impact) of the requirement. The Monitoring Plan will provide that this comprehensive outcome assessment will coincide with an annual outcome assessment as required in paragraph 367. This assessment also will address areas of greatest achievement and the requirements that appear to have contributed to this success, as well as areas of greatest concern, including strategies for accelerating Substantial and Effective Compliance. Based upon this comprehensive assessment, the Monitor will recommend any modifications to this Agreement necessary to achieve and sustain intended outcomes. Where the Parties agree with the Monitor’s recommendations, the Parties will move the Court to modify this Agreement accordingly. This provision in no way diminishes the Parties’ ability to stipulate to modifications to this Agreement as set out below. Nothing in this Assessment will enable the Monitor to unilaterally modify the terms of this Agreement.
I. Monitor Reports
375. The Monitor will file with the Court, every six months, written, public reports that include the following:
a. a description of the work conducted by the Monitor during the reporting period;
b. a list of each Agreement requirement, indicating which requirements have been:
1. incorporated into policy;
2. the subject of sufficient training for all relevant CDP officers and employees; and
3. carried out in actual practice.
c. the methodology and specific findings for each compliance review conducted, where appropriate, and redacted as necessary for privacy concerns. An unredacted version will be filed under seal with the Court and provided to the Parties. The underlying data for each compliance review will not be publicly available but will be retained by the Monitor and provided to either or both Parties upon request;
d. for any requirements that were reviewed or audited and found not to have been implemented, the Monitor’s recommendations regarding necessary steps to achieve compliance;
e. the methodology and specific findings for each outcome assessment conducted; and
f. a projection of the work to be completed during the upcoming reporting period and any anticipated challenges or concerns related to compliance with this Agreement.
376. The Monitor will provide a copy of the six-month reports to the Parties in draft form within 15 business days after the end of each reporting period. The Parties will have 15 business days upon receipt of the report to informally comment on the draft report. The Monitor will consider the Parties’ responses and make appropriate changes, if any, before issuing the report.
J. Coordination with the Police Inspector General
377. In conducting its assessments, reviews, and audits, and in developing its monitoring plan and review methodologies, the Monitor may coordinate and confer with the Police Inspector General to avoid duplication of effort and expenses.
K. Communication between Monitor, Parties, and Public
378. The Monitor will maintain regular contact with the Parties in order to ensure effective and timely communication regarding the status of CDP’s compliance with this Agreement. To facilitate this communication, the Monitor will conduct monthly meetings, which will include participation by the Chief, counsel for the City, CDP’s Consent Decree Implementation Unit (described below), and DOJ. The Monitor also will meet at least twice each year with the Mayor.
379. The Monitor will hold public meetings with community stakeholders, including the Commission and the Cleveland City Council, to explain the Monitor’s reports and inform the public about this Agreement’s implementation process, as well as to hear community perspectives of police interactions. The Monitor will notify the Parties when such meetings are scheduled.
L. Public Statements, Testimony, Records, and Conflicts of Interest
380. Except as required or authorized by the terms of this Agreement or with the Parties acting together: the Monitor, including any agent, employee, or independent contractor thereof, will not make any public statements or issue findings with regard to any act or omission of the City or CDP, or their agents, representatives, or employees; or disclose non-public information provided to the Monitor pmsuant to this Agreement. Any press statement made by the Monitor regarding its employment or monitoring activities under this Agreement first will be approved by DOJ and the City.
381. The Monitor, including any agent, employee, or independent contractor thereof: may testify as to its/their observations, findings, and recommendations before the Court with jurisdiction over this matter. However, the Monitor, including any agent, employee, or independent contractor thereof, will not testify in any other litigation or investigative or pre-litigative proceeding with regard to any act or omission of the City, CDP, or any of their agents, representatives, or employees related to this Agreement or regarding any matter or subject of which the Monitor may have received knowledge as a result of his/her performance under this Agreement. This paragraph does not apply to any proceeding before a court related to performance of contracts or subcontracts for monitoring this Agreement.
382. Unless such conflict is waived by the Parties, the Monitor will not accept employment or provide consulting services that would present a conflict of interest with the Monitor’s responsibilities under this Agreement, including being retained (on a paid or unpaid basis) by any current or future litigant or claimant, or such litigant’s or claimant’s attorney, in connection with a claim or suit against the City or its departments, officers, agents or employees.
383. The Monitor is not a state or local agency, or an agent thereof, and accordingly, the records maintained by the Monitor will not be designated as public records subject to public inspection.
384. The Monitor will not be liable for any claim, lawsuit, or demand arising out of the Monitor’s performance pursuant to this Agreement brought by non-parties to this Agreement.
M. CDP Consent Decree Implementation Unit
385. The City and CDP agree to hire and retain, or reassign current City employees to form a unit with the skills and abilities necessary to facilitate compliance with this Agreement. At a minimum, this unit will coordinate the City’s and CDP’s compliance and implementation activities; facilitate the provision of data, documents, materials, and access to the City’s and CDP’s personnel to the Monitor and DOJ, as needed; ensure that all data, documents and records are maintained as provided in this Agreement; and assist in assigning implementation and compliance related tasks to CDP personnel, as directed by the Chief or the Chief’s designee.
N. Implementation Assessment and Report
386. The City and CDP agree to collect and maintain all data and records necessary to: (1) document compliance with this Agreement, including data and records necessary for the Monitor to conduct reliable outcome assessments, compliance reviews, and audits; and (2) to allow CDP or other City entities to perform ongoing quality assurance in each of the areas addressed by this Agreement.
387. Within 180 days of the Effective Date, the City will file with the Court, with a copy to the Monitor and DOJ, a status report. This report will delineate the steps taken by CDP during the reporting period to comply with this Agreement; CDP’s assessment of the status of its progress; plans to correct any problems; and responses to any concerns raised in the Monitor’s previous semi-annual report. Following this initial status report, the City will file a status report every six months thereafter while this Agreement is in effect.
O. Access and Confidentiality
388. To facilitate its work, the Monitor may conduct on-site visits and assessments without prior notice to the City and CDP. CDP will notify the Monitor as soon as practicable, and in any case within 12 hours, of any critical firearms discharge, in-custody death, or arrest of any officer.
389. The Monitor will have timely, full, and direct access to all Agreement related individuals, facilities, trainings, meetings, disciplinary hearings, reviews, and the scene of any occurrence that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement. The Monitor will cooperate with the City and CDP to access people, scenes, and facilities in a reasonable manner that, consistent with the Monitor’s responsibilities, minimizes interference with daily operations.
390. The City and CDP will ensure that the Monitor will have full and direct access to all City and CDP documents and data related to the Agreement that the Monitor reasonably deems necessary to carry out the duties assigned to the Monitor by this Agreement, except any doctuments or data protected by work product or the attorney-client privilege (together “privilege”). Privilege may not be used to prevent the Monitor from observing trainings, disciplinary hearings, or reviews, other than reviews with City lawyers in anticipation of litigation or for litigation. Should the City and CDP decline to provide the Monitor with access to documents or data based on privilege, the City and CDP will inform the Monitor and DOJ that it is withholding documents or data on this basis, and will provide the Monitor and DOJ with a log describing the documents or data and the basis of the privilege . If DOJ objects to the City’s classification, DOJ may seek resolution of the propriety of the assertion of the privilege from the Court.
391. DOJ and its consultants and agents will have full and direct access to all City and CDP staff, employees, facilities, documents, and data related to the Agreement, in coordination with the Law Department of the City of Cleveland, except any documents or data protected by work product or the attorney-client privilege (together “privilege”). DOJ and its consultants and agents will coordinate with the Law Department of the City of Cleveland to access involved personnel, facilities, and documents in a reasonable manner that, consistent with DOJ’s right to seek enforcement of this Agreement, minimizes interference with daily operations. Should the City or CDP decline to provide DOJ with access to personnel, documents, or data based on privilege, the City and CDP will inform DOJ that it is withholding personnel, documents, or data on this basis, and will provide DOJ with a log describing the documents or data and the basis for withholding. If DOJ objects to the City’s classification, DOJ may seek resolution of the propriety of the assertion from the Court.
392. While an administrative or criminal investigation into the conduct of an officer or officers is ongoing, neither the Monitor nor DOJ will ask the subject officer(s) or witness officer(s) questions related to the conduct that is under investigation.
393. The Monitor and DOJ will provide the City and CDP with reasonable notice of a request for copies of documents. Upon such request, the City and CDP will provide copies in a timely manner (electronic, where readily available) of the requested documents to the Monitor and DOJ, unless withheld as privileged or otherwise withheld pursuant to law as described above.
394. The Monitor will have access to all records and information relating to criminal investigations of CDP officers as permitted by law. The Monitor will have access to all documents in criminal investigation files that have been closed by CDP after the Effective Date.
395. The Monitor and DOJ will maintain all confidential or non-public information provided by the City and CDP in a confidential manner. Other than as expressly provided in this Agreement, this Agreement will not be deemed a waiver of any privilege or right the City and CDP may assert, including those recognized at common law or created by statute, rule, or regulation, against any other person or entity with respect to the disclosure of any document.
P. Court Jurisdiction, Modification of this Agreement, and Enforcement
396. This Agreement will become effective upon entry by the Court.
397. The Court will retain jurisdiction of this action for all purposes until such time as the City and CDP have achieved Substantial and Effective Compliance with this Agreement and maintained such compliance for no less than two consecutive years. At all times, the City and CDP will bear the burden of demonstrating by a preponderance or the evidence its Substantial and Effective Compliance with this Agreement. DOJ acknowledges the good faith of the City of Cleveland in trying to address actions that are needed to promote police integrity and ensure constitutional policing. DOJ, however, reserves its right to seek enforcement of the provisions of this Agreement if it determines that the City and CDP have failed to substantially comply with any provision of this Agreement. DOJ will consult with officials from the City before instituting enforcement proceedings.
398. The City and DOJ may jointly agree to make changes, modifications, and amendments to this Agreement, which will be effective if approved by the Court. Such changes, modifications, and amendments to this Agreement will be encouraged when the Parties agree, or where the Monitor’s reviews, assessments, and/or audits demonstrate that an Agreement provision as drafted is not furthering the purpose of this Agreement or that there is a preferable alternative that will achieve the same purpose. Where the Parties or the Monitor are uncertain whether a change to this Agreement is advisable, the Parties may agree to suspend the current Agreement requirement for a time period agreed upon at the outset of the suspension. During this suspension, the Parties may agree to temporarily utilize an alternative requirement. The Monitor will assess whether the suspension of the requirement, and the use of any alternative provision, is as effective, or more effective al achieving the purpose as was the original/current Agreement requirement, and the Parties will consider this assessment in determining whether to jointly stipulate to make the suggested change, modification, or amendment.
399. The Parties agree to defend the provisions of this Agreement including in collective bargaining. The Parties will notify each other of any court, union, or administrative challenge to this Agreement. In the event any provision of this Agreement is challenged in any city or state court, the Parties will seek removal to Federal Court.
400. The City and CDP agree to require compliance with this Agreement by their respective officers, employees, agencies, assigns, or successors.
Q. Termination of this Agreement
401. This Agreement will terminate when the City has been in Substantial and Effective Compliance with the search and seizure provisions for one year and with all of the remaining provisions for two consecutive years. “Substantial and Effective Compliance” means that the City either has complied with all material requirements of this Agreement, or has achieved sustained and continuing improvement in constitutional policing, as demonstrated pursuant to this Agreement’s outcome measures.
402. If the Parties disagree whether the City has been in Substantial and Effective Compliance with the search and seizure provisions for one year and with all of the remaining provisions for two consecutive years, the City may seek to terminate this Agreement. Prior to filing a motion to terminate, the City agrees to notify DOJ in writing when the City has determined that they are in Substantial and Effective Compliance with this Agreement and that such compliance has been maintained for the required time periods. Thereafter, the Parties will promptly confer as to the status of compliance. If, after a reasonable period of consultation and the completion of any audit or evaluation that DOJ and/or the Monitor may wish to undertake, including onsite observations, document review, or interviews with the City and CDP’s personnel, the Parties cannot resolve any compliance issues, the City may file a motion to terminate this Agreement. lf the City moves for termination of this Agreement, DOJ will have 60 days after the receipt of the City’s motion to object to the motion. If DOJ does not object, the Court may grant the City’s motion without a hearing. If DOJ does object, the Court will hold a hearing on the motion, and the burden will be on the City to demonstrate by the preponderance of the evidence that it is in Substantial and Effective Compliance with this Agreement and has maintained such compliance for the required time periods.
403. This Agreement is enforceable only by the Parties. No person or entity is intended to be a third-party beneficiary of the provisions of this Agreement for purposes of any civil, criminal, or administrative action. Accordingly, no person or entity may assert any claim or right as a benefiiary or protected class under this Agreement.