A King County judge has vacated an arbitrator’s ruling from last year that ordered Seattle police to reinstate an officer who was fired for punching a drunk, handcuffed woman after she kicked him during a 2014 incident captured on patrol car video.
Superior Court Judge John McHale, in a 10-page ruling issued late Friday, found that arbitrator Jane Wilkinson’s Nov. 30 ruling ordering the city to reduce Officer Adley Shepherd’s firing to a 15-day suspension and put him back on the job amounted to discipline so lenient it “violates the explicit, dominant and well-defined public policy against the use of excessive force in policing.”
“Allowing this imposed discipline to stand, which includes reinstatement of Officer Shepherd, sends a message to law enforcement officers and the public that the use of excessive force on handcuffed or restrained persons is allowed in situations when officer patience is stretched thin or when an officer feels stinging pain inflicted by a handcuffed suspect who is no longer threatening immediate harm or when there are other options for control available,” McHale wrote.
The judge’s ruling was rare. Previously, a judge and an appeals court overturned a civil-service commission’s reinstatement of a Seattle officer who was dismissed in 2009 for dishonesty after he failed to tell internal investigators he had punched a man. The case was returned to the board, which then upheld the firing.
Backed by Mayor Jenny Durkan and Police Chief Carmen Best, City Attorney Pete Holmes took the unusual step in Shepherd’s case of seeking a judicial review of the binding arbitration decision, contending that the reduction of discipline was so lenient that it violated the public policy against the use of excessive force in policing. While the appeal was pending, Seattle police chose not to reinstate Shepherd.
“Judge McHale rightly recognized the arbitrator’s order for Mr. Shepherd’s reinstatement violated the public policy against excessive use of force in policing,” Holmes and Durkan said in a joint written statement Friday.
“SPD should not be forced to employ an officer whose view of reasonable and necessary force is so immutable and so contrary to SPD’s policies and values,” the statement said.
Reached by phone late Friday, Shepherd described the ruling as the latest development in a process he says has become unfairly political.
“If you look at the video — I’m not going to lie, it’s ugly — but the whole story is not being told,” said Shepherd, who has since started his own security investigations firm. “You have to look at all the evidence, look at all of the experts, once they started breaking it down and putting it into context, and they agreed with me: My actions were well within policy at the time. But that’s not getting through in all of these rulings. It’s frustrating and it’s just sad, the way the judicial system is getting manipulated.”
Shepherd, who said he’s considering filing his own lawsuit against the city, added he fully expects the Seattle Police Officers Guild will appeal McHale’s ruling.
The ruling represented a major setback for the guild.
“Our hearts go out to the Shepherd family who have been dragged through this process for nearly five years,” the guild said in a statement. “SPOG will be immediately appealing this decision as it will negatively impact all public sector union contracts.”
Shepherd’s firing stemmed from a June 22, 2014, domestic dispute in which he encountered Miyekko Durden-Bosley, 23, outside the home of a Seattle man whose mother had called police. Durden-Bosley was intoxicated and verbally abusive when Shepherd, the first of three officers to arrive at the scene, ultimately told her and the man he was losing his patience with their contradictory explanations.
“Somebody’s going to go to jail, who’s it going to be? Eeny meeny,” Shepherd told them.
After Shepherd arrested Durden-Bosley for investigation of domestic violence, she swore at him and kicked at him while he shoved her into the back of the patrol car. “She kicked me,” Shepherd shouted, before punching her.
“It was uncontroverted that Ms. Durden-Bosley’s kick landed in Officer Shepherd’s face and she was wearing Doc Marten-brand boots,” according to a summary of the evidence reviewed during the appeal.
Shepherd and Durden-Bosley were both treated at Harborview Medical Center. Durden-Bosley was later taken to jail and spent four days there before the case was dismissed.
Durden-Bosley filed a civil lawsuit over the incident, settling with the city for $195,000 in 2016. The sum included her attorneys’ fees.
The Office of Police Accountability conducted an internal investigation after county and federal prosecutors declined to press charges against Shepherd, who was placed on paid leave shortly after the incident.
Shepherd, 42, was fired in November 2016 after then-Police Chief Kathleen O’Toole found he had violated department policies regarding use of force and de-escalating confrontations, according to a termination report.
The police union appealed, contending the city didn’t have just cause to fire him. The guild also alleged that O’Toole’s decision may have been politically motivated, that the chief didn’t thoroughly review the matter and that she made erroneous assumptions.
McHale, in his ruling Friday, described the matter as “extraordinary” in several ways.
“It is extraordinary that we have graphic video of the excessive force at issue that was determined by the Disciplinary Review Board to have been used,” he wrote.
“The matter is also extraordinary procedurally that courts do not typically review arbitration awards that are agreed to be final and binding per the terms of collective bargaining agreements.”
But McHale wrote judicial review of an arbitration is “permissible to determine if the arbitration award is contrary to public policy.”
McHale ruled that both Seattle Police Department’s manual and a 2012 consent decree agreement between the department and the Justice Department clearly provides a well-defined public policy against excessive force, adding he was “concerned about the impact a 15-day suspension” for Shepherd’s actions would have on officers in “maintaining compliance” with that policy.
Staff reporter Steve Miletich contributed to this report.