Citing a history of defiance by Seattle’s rank-and-file police union, a federal judge on Wednesday found that a portion of Seattle’s contract with the union fails to address officer accountability, threatening to undermine public confidence in a seven-year-old reform agreement between the city and the Department of Justice.
Delivering a lengthy and dramatic ruling from the bench, U.S. District Judge James Robart told a packed courtroom the city had fallen partly out of compliance with the agreement. Before the city can be released from federal oversight, it must respond to deficiencies that include the closed-door appeal process for officers who have been fired or disciplined, he said.
While praising as “national models” the department’s work in improving areas such as use of force, crisis intervention, supervision and stops and detentions, Robart’s much-anticipated ruling was sharply critical of the city’s longstanding inability to address officer accountability.
“Ladies and gentlemen, we are better but we are not perfect,” Robart said, characterizing the positive changes in the department, including a sharp decline in the use of force, as “profound.”
At the same time, however, he emphasized that accountability is “both required and very important.”
Robart’s decision emanated from the highly publicized case of an officer who won back his job after being fired for punching a handcuffed woman.
The judge’s ruling dealt a severe blow to Mayor Jenny Durkan and Police Chief Carmen Best, who, when the contract was reached late last year with the Seattle Police Officers Guild (SPOG), hailed it as a key step in the city’s effort to comply with federally mandated reforms.
It almost certainly means the city and SPOG will have to reopen negotiations on a portion of the contract that allows what Robart described as a labor arbitrator whose livelihood depends on being selected again to overturn or modify discipline imposed by an experienced chief of police. He questioned whether that portion of the contract complies with the Constitution and the law.
City officials said they wanted to read the judge’s written order when it is released next week before commenting on a next step. They left open the possibility that Robart may only be seeking clarification of some parts of the contract without requiring new negotiations.
“Overall, I am very, very heartened by the judge’s ruling today,” Durkan said at a news briefing, asserting the media was doing a disservice by focusing on a few concerns rather than the hard work of officers in complying with the thrust of the consent decree.
It was Durkan who, as U.S. Attorney in Seattle, spearheaded the 2012 consent decree with the city that required the Police Department to address allegations that officers engaged in a pattern of excessive force and displayed troubling evidence of biased policing. She was elected mayor in 2017, selecting Best as her chief.
Rich O’Neill, a retired police sergeant who headed SPOG for years and now is the union’s spokesman, declined comment.
Robart, in laying out his findings, said he had been “dismayed” at the union’s efforts over the years to challenge and “spin” reform efforts. SPOG has complained about and fought many of the reforms, including the now-required use of body cameras, and bitterly criticized federal oversight and the civilian-led Office of Police Accountability (OPA).
His ruling, however, leaves in place the bulk of the collective bargaining agreement, including years worth of back raises deemed critical by the city.
Areas where he had concerns include a 180-day deadline for internal investigations — which he said was clearly in place to help officers avoid consequences when they do something wrong — and a “narrowing of subpoena power” by the OPA, which oversees internal-affairs investigations.
Durkan, asked at the news briefing about the judge’s virtual indictment of the union’s record, said although she had not attended the hearing, that was not the report she got.
City Attorney Pete Holmes, who represented the city at the hearing, contradicted the version presented to Durkan, saying it would be a “fair characterization” to say Robart’s criticism of the guild amounted to an indictment.
Robart had found in January 2018 that the city had reached “full and effective” compliance with the consent decree, triggering a two-year review period requiring the city to show continuing compliance.
In December, shortly after the city ratified the contract with the union, Robart ordered the city of Seattle to explain why it shouldn’t be found out of compliance in light of the announcement of the arbitrator’s decision overturning the firing of the officer who punched the handcuffed woman.
Robart, who has presided over the consent decree since its inception, then expanded his inquiry to include a detailed account of how the “disciplinary system and appeals process” has changed since the department came under federal oversight.
During Wednesday’s hearing, Robart played dashcam video that showed Officer Adley Shepherd punching the handcuffed woman, Miyekko Durden-Bosley, then 23, who was intoxicated and verbally and physically abusive during her arrest outside the home of a Seattle man whose mother had called the police in June 2014. Chief Best and members of her command staff sat stone-faced as the video rolled, with Best averting her eyes at times.
Durden-Bosley, who initially was 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 her once in the face, fracturing the orbit of her right eye.
Durden-Bosley eventually settled a civil lawsuit against the city for $195,000.
Robart’s ruling represented a major victory for the Community Police Commission (CPC), a citizen body created as part of the consent decree.
In a February court filing, the CPC argued Seattle was backsliding on reform by undermining public trust in the internal disciplinary process. It asked Robart to direct the city to fix flaws in the agreement with SPOG, which represents more than 1,300 officers and sergeants.
At the end of Wednesday’s hearing, Robart praised the attorney hired by the CPC, David Perez, for his work.
City attorneys argued in court papers that the city shouldn’t be found out of compliance because of a “single, erroneous” ruling by the arbitrator in the Shepherd case.
The attorneys also maintained the arbitrator’s action didn’t undo successful reforms the city and the Police Department have carried out under the consent decree.
The arbitrator found that Shepherd used excessive force but reduced his penalty to a 15-day suspension after concluding that termination was too harsh. The city has refused to reinstate Shepherd and asked a King County judge to overturn the decision.
Federal attorneys, in their filing, said Seattle should not be found out of compliance over an “individual incident” and urged Robart to find that the arbitrator’s decision doesn’t conflict with the consent decree.
Robart said his decision was not solely about the Shepherd case, but more about a system that allowed him to regain his job with back pay after he had been fired.
Robart took part of the morning to review the history of attempts at police reform in Seattle, dating back to the mid-1990s and an incident in which an SPD homicide detective reportedly stole $10,000 from the apartment of a man who had been killed by police, and then tried to return it with the help of his sergeant. Robart said a number of people in the department, including an internal-affairs investigator, knew about that 1996 incident for years but did nothing.
He said a commission formed to look into that incident — which included Durkan, who was a private attorney at the time — came out with a report in 1999 that was critical of officer accountability. Nine years later, another blue-ribbon commission — which also had Durkan as a member — arrived at the same conclusion.
Robart said addressing the issue of officer accountability remains the primary stumbling block before the department’s removal from federal oversight.
While the arbitration was based on the previous contract and the new agreement tightens procedures, the city abandoned reform language in sweeping police-accountability legislation passed by the City Council in 2017. That would have placed disciplinary appeals under a three-member, city-run commission and hearing examiner, in what was viewed as a tougher system to manipulate.
Councilmember M. Lorena González, who oversaw the legislation, said in a statement: “I acknowledge that a signal by the Court that we may be partially out of compliance with the consent decree is not an ideal outcome. This is a message that we should all take to heart while we eagerly await Judge Robart’s written court order. When it comes to constitutional policing, any ground lost is simply too much.”
Robart left open the possibility the city could meet the terms of the two-year review period by January, Durkan said.