Attorneys for the city of Seattle wrote that the Police Department shouldn't be found out of compliance with federally mandated reforms because of one flawed ruling.
The city of Seattle shouldn’t be found out of compliance with court-ordered police reforms because of a “single, erroneous” ruling by an arbitrator ordering the reinstatement of a Seattle police officer who punched a handcuffed woman, city attorneys argue in a lengthy filing submitted to a federal judge who has raised questions about the decision.
In fact, the Police Department has done everything it can to remove Officer Adley Shepherd, including appealing the arbitrator’s decision to King County Superior Court and refusing to allow Shepherd to return to work while the appeal is pending, the attorneys wrote in a response to U.S. District Judge James Robart.
Regardless of the outcome, the attorneys maintain, the arbitrator’s action didn’t undo successful reforms the city and the department have carried out the past six years under a 2012 consent decree with the Department of Justice. In 2011, a DOJ investigation found that Seattle police had engaged in a pattern of routinely using excessive force, and displayed troubling practices of biased policing.
That progress and further reforms “will ensure that the Shepherd incident remains an outlier,” the city says in its 37-page brief filed Monday night in U.S. District Court in Seattle.
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Others, including the city’s Community Police Commission, have asserted that the use of an outside arbitrator in disciplinary proceedings is inherently flawed. Arbitrators, for example, can be prone to splitting their decisions over time to curry favor with both sides and enhance their chances of being selected in the future, critics say.
Arbitrations were to be discontinued under a police-accountability ordinance enacted by the city last year, to be replaced by a city-run system in which appeals would be heard by a hearing examiner and reviewed by a three-member board.
But the change was subject to bargaining with the Seattle Police Officers Guild, which represents more than 1,300 officers and sergeants. Under a contract approved last month, the city agreed to retain the use of arbitrators, with modifications to the way they are selected and to streamline the process. The city also agreed to keep the arbitrations behind closed doors, which would not have been allowed under the city-run system.
“Arbitration is a relatively fast, inexpensive method of resolving labor disputes,” the city’s attorneys wrote in the filing, noting that all other city employees with collective-bargaining agreements have that option.
In January, Robart found the Police Department to be in “full and effective” compliance with the consent decree, triggering a two-year review period in which the city must show that it can sustain the reforms. After Shepherd’s reinstatement, Robart questioned why the Police Department shouldn’t be found out of compliance in light of the decision. The DOJ response is due by Jan. 9.
Shepherd was fired for punching a 23-year-old woman who was intoxicated and verbally and physically abusive during her arrest outside the home of a Seattle man whose mother had called the police on June 22, 2014.
In an exchange captured on patrol-car video, the woman, who had been taken into custody for investigation of domestic violence, swore at Shepherd and kicked him in the head while being shoved into the back of a police cruiser.
Shepherd reacted by punching the handcuffed woman once in the face, fracturing the orbit of her right eye.
The arbitrator found he used excessive force, but that firing him was too severe a penalty. She reduced the discipline to a 15-day suspension without pay and ordered Shepherd’s reinstatement with back pay.
As requested by Robart, the city’s attorneys, in their filing, submitted a copy of the arbitrator’s decision and briefs that were filed during the appeal hearing.
The attorneys also responded to Robart’s request for a broad description of what has changed in the disciplinary and appeal system since the consent decree went into effect.
Citing various examples, the attorneys pointed to the creation of a civilian inspector general with broad oversight powers, and the addition of civilians to the Police Department’s internal-investigation unit, the Office of Police Accountability.
“SPD’s current policies and training are vastly improved since the Shepherd incident and, in fact, receive national recognition as exemplars,” the attorneys wrote.
The city is obligated to bargain with the union under state law, the attorneys said, while acknowledging that federal law would trump any provisions of the police-guild contract that conflict with the consent decree.
In a statement Tuesday, Mayor Jenny Durkan said, “Judge Robart continues to take a thoughtful and thorough approach as he evaluates Seattle’s progress toward meaningful, lasting reform, and we will continue to be ready to address any additional requests or concerns Judge Robart may have.”
On Monday, the city filed an audit of crisis-intervention reforms required by the consent decree that shows the department is complying with requirements regarding its contacts with people in mental crisis, including continuing crisis training and by engaging with individuals consistent with its crisis-intervention and use-of-force policies. The DOJ and the court’s independent monitor, Merrick Bobb, concurred.