Seven years after former Seattle Police Officer Adley Shepherd was fired for punching a handcuffed suspect — setting in motion events that would undermine the city’s police-reform efforts and prolong federal oversight by years — the state Court of Appeals has upheld his termination.
The appeals court upheld a lower-court decision that overturned a ruling by an arbitration-driven Disciplinary Review Board (DRB) to reinstate Shepherd with a 15-day unpaid suspension for punching the intoxicated suspect so hard he fractured the orbit of her eye. Former Police Chief Kathleen O’Toole had fired Shepherd after the incident; however, he appealed with the support of the Seattle Police Officer’s Guild.
The disciplinary board’s “decision reinstating Shepherd is so lenient it violates the
explicit, well-defined, and dominant public policy against the excessive use of
force in policing,” the three-member state court of appeals wrote in a 46-page opinion issued Monday.
“Indeed, the DRB’s decision sends a message to officers that a violation of a clear and specific policy is not that serious if the officer is dealing with a difficult subject, losing patience, or passionate in believing that he or she did nothing wrong — however mistaken that belief may be,” the panel wrote. “Such a message cannot be squared with the public policy against the excessive use of force in policing, which we hold imposes on the City an affirmative duty to sufficiently discipline officers.”
Shepherd and two other officers had been dispatched to a domestic-violence call the night of June 22, 2014 and arrested an intoxicated and combative Miyekko Durden-Bosley, 23, on suspicion of domestic violence. As Shepherd attempted to place her, handcuffed, into his patrol cruiser, Durden-Bosley struggled and kicked out, striking the officer in the head. Shepherd reacted by punching her hard in the face. The incident was captured on the vehicle’s dash camera.
Shepherd defended his actions and has said that he was following policy and that other officers have received more lenient discipline for similar uses of excessive or unnecessary force. He appealed his termination, through a provision in the city’s contract with the guild, to the disciplinary review board, which consisted of a representative from SPOG, a representative of the city and a mediator, identified in court papers as Jane Wilkinson.
In a tiebreaker vote, Wilkinson concluded that, while Shepherd violated policy and training, his indiscretion was not a firing offense. The review board reduced the discipline to 15 days off without pay.
Durden-Bosley settled a civil-rights lawsuit against Seattle for $195,000.
The Seattle City Attorney’s Office appealed the disciplinary board’s decision to superior court, which sided with O’Toole and reinstated Shepherd’s termination. Monday’s ruling by Division One of the Washington Court of Appeals upholds the lower court ruling.
Telephone, email and text messages left with Shepherd on Monday afternoon seeking comment on the ruling did not receive replies. Telephone and email messages sent to SPOG President Mike Solan were not returned. It was not clear whether Shepherd will appeal.
City Attorney Pete Holmes, whose office represented O’Toole’s and the city’s efforts to fire Shepherd, said he will defend the case to the Washington Supreme Court if necessary.
” (Shepherd’s) conduct undermined public faith in the police department, and his reinstatement violated the clear public policy against excessive use of force in policing,” Holmes said in a statement. “I’m breathing a sigh of relief that SPD will not be forced to reinstate him.”
Mayor Jenny Durkan, who has defended Shepherd’s termination, said she and Holmes have fought for stateside arbitration reform, a key issue in the city’s ongoing labor negotiations with SPOG. The union’s leaders have been criticized for attempting to monetize and bargain with constitutional policing.
“Seattle also should not be forced to go to court to overturn an arbitrator’s decision,” she said in a statement.
Accountability issues raised by Shepherd’s case derailed the Seattle Police Department’s first real opportunity to get out from beneath years of federal oversight resulting from a 2012 settlement agreement with the U.S. Department of Justice, which had found in an investigation that SPD officers routinely used excessive force while making arrests and uncovered unsettling, if inconclusive, evidence of biased policing.
U.S. District Judge James Robart was poised in May 2019 to find the city in initial compliance with the agreement, which included the adoption of extensive policy and training revisions involving crisis and crowd control and use-of-force. Then came the arbitrator’s decision forcing the city to rehire Shepherd, which was sharply criticized by Robart, who reversed course and found the city had fallen out of compliance in the area of officer accountability.
The city has remained out of compliance in that area since, a hurdle made higher by the department’s response to the Black Lives Matter protests over the summer, where another federal judge in a separate case has found the department’s use of tear gas, pepper-spray and other less-lethal crowd-control weapons against protesters likely violated the civil rights of thousands of demonstrators.