United States of America v. City of Seattle

Filing 562

ORDER finding that City of Seattle has fallen partially out of full and effective compliance with the Consent Decree. The Court further ORDERS the parties to file their methodology no later than July 15, 2019. Signed by Judge James L. Robart. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.
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CITY OF SEATTLE,

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CASE NO. C12-1282JLR
ORDER FINDING CITY OF
SEATTLE PARTIALLY OUT OF
COMPLIANCE WITH THE
CONSENT DECREE

Defendant.

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I. INTRODUCTION

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On November 5, 2018, the court held a status conference in response to Defendant

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City of Seattle’s (“the City”) notification that it had concluded labor negotiations with the

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Seattle Police Officer’s Guild (“SPOG”) and entered into a tentative agreement. (See

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11/5/18 Hearing Tr. (Dkt. # 499); Min. Entry (Dkt. # 498); 10/23/18 Order (Dkt. # 485);

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10/26/18 Order (Dkt. # 487); City Notice (Dkt. # 484).) On December 3, 2018, the court

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ordered the parties to show cause “whether . . . [the City] has failed to maintain full and

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ORDER - 1

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effective compliance with the Consent Decree.” 1 (OSC (Dkt. # 504) at 1.) The City,

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Plaintiff United States of America (“the United States”), and Amicus Curiae Community

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Police Commission (“CPC”) filed responses to the court’s order. (See City Resp. (Dkt.

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# 512); U.S. Resp. (Dkt. # 528); CPC Resp. (Dkt. # 531); see also City Reply (Dkt.

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# 543).) In addition, on May 15, 2019, the court held a hearing on its order to show cause

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in which the parties and the CPC participated.

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For the reasons stated below, the court finds that the City has fallen partially out of

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full and effective compliance with the Consent Decree. The court does not find that the

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City has fallen out of compliance in any of the areas listed in the Phase II Sustainment

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Plan that are covered by the Audits (see Phase II Sustainment Plan (Dkt. # 444) at 4-10),

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but notes that a number of key assessments need to be completed. The court nevertheless

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remains hopeful that the City can complete these assessments and discharge these areas

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of the Consent Decree within the two-year sustainment period. The court, however, does

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find that the City is out of compliance with the Consent Decree in one of its additional

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areas of responsibility—accountability. (See id. at 12-13.) With respect to this area, the

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City will need to come back into full and effective with the Consent Decree, and then

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maintain that compliance for two years.

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The Consent Decree consists of the Settlement Agreement (Dkt. # 3-1) and the order
modifying and preliminarily approving it (Dkt. # 13). On the same day that the parties executed
the Settlement Agreement, they also executed a Memorandum of Understanding (“MOU”),
which established the CPC the and Crisis Intervention Committee.

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II. BACKGROUND & ANALYSIS

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On December 16, 2011, the United States Department of Justice (“DOJ”) released

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a report announcing that it had found reasonable cause, under the Violent Crime Control

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and Law Enforcement Act of 1994, 34 U.S.C. § 12601 (formerly codified at 42 U.S.C.

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§ 14141), to believe that the Seattle Police Department (“SPD”) had engaged in a pattern

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and practice of excessive force. (See DOJ Report (Dkt. # 1-1); see also Stip. Find. &

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Concl. (Dkt. # 14) ¶ 6.) On July 27, 2012, the United States filed a complaint against the

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City based on that report. (See Compl. (Dkt. # 1).) On the same day, the City and the

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United States filed a joint motion asking the court to approve a Settlement Agreement

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and a Stipulated Order of Resolution. (Stip. Find. & Concl. ¶ 12; see also Joint Mot.

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(Dkt. # 3) (attaching the Settlement Agreement).) On September 21, 2012, the court

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preliminarily approved the Settlement Agreement, along with certain agreed

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modifications. (See 9/21/12 Order (Dkt. # 13).) The modified agreement and order is

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now commonly referred to as “the Consent Decree.” See supra n.1. The Consent Decree

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requires SPD to comply with two phases: (1) SPD must attain “full and effective

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compliance” with the Consent Decree (“Phase I”), and then (2) SPD must sustain that

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compliance for two years (“Phase II”). (Consent Decree ¶¶ 229-30.)

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On January 10, 2018, the City and SPD reached an important milestone. The

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court entered an order declaring that they were in “full and effective compliance with the

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Consent Decree,” fulfilling Phase I. (FEC Order (Dkt. # 439) at 16.) Nevertheless, on

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December 3, 2018, the court issued an order to show cause “whether the court should

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find . . . the City . . . has failed to maintain full and effective compliance.” (OSC at 1.)

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The court stated that two considerations prompted its order: (1) the City’s completion of

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collective bargaining with SPOG, and (2) the decision by the Disciplinary Review Board

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(“DRB”) to overturn former Chief of Police Kathleen O’Toole’s decision to terminate

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SPD Officer Adley Shepherd. (Id. at 5.) The court stated that the “decision to reinstate

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an officer who had violated three provisions of . . . SPD’s use-of-force policies when he

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punched a handcuffed subject in the face while she was sitting in a patrol car, and the

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new [Collective Bargaining Agreement’s (“CBA”)] rejection of reforms in the

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Accountability Ordinance that would have substantially changed the process and standard

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of review by which the decision was made” caused the court “to question whether the

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City and . . . SPD can remain in full and effective compliance with the Consent Decree.”

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(Id. at 8.)

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The court’s January 10, 2018, “full and effective compliance” ruling was based, in

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part, on the Monitor’s conclusion in his 2017 Compliance Status Report that the City had

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achieved “initial compliance” with assessments that the Monitor and the parties

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formulated for this purpose. (See FEC Order at 3-5 (citing 3d Year Monitoring Plan

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(Dkt. #195) and Compliance Status Report (“CSR”) (Dkt. # 416)).) The assessments

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include: (1) force reporting and investigation, (2) the Force Review Board (“FRB”), (3)

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community confidence, (4) the Office of Professional Accountability (“OPA”), (5) crisis

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intervention and the intersection with the use of force, (6) supervision, (7) Type II force

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investigation, (8) the Early Intervention System (“EIS”), (9) use-of-force, and (10) stops,

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searches, and seizures. (See FEC Order at 4 n.3; see also CSR at 3-17.)

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Although the ten assessments are “clearly important,” they “do not constitute all

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the requirements of the Consent Decree.” (CSR at 3.) Indeed, in his Report, the Monitor

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expressly identified accountability and the conclusion of labor negotiations as additional

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areas of focus or concern for assessing SPD’s compliance. (CSR at 17-18.) At the time

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that the court declared the City to be in “full and effective compliance” with the Consent

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Decree, the City had presented its original Accountability Ordinance for court approval.

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(See 7/11/16 Stip. Mot. (Dkt. # 297); 6/21/17 City Br. (Dkt. # 396).) Because the

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Ordinance at that time was still subject to alteration during the City’s collective

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bargaining process with SPD’s labor unions, the court declined to rule on a version of the

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Ordinance that was not the “final product.” (9/7/17 Order (Dkt. # 413) at 3; see also FEC

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Order at 15.) Indeed, the court’s approval is still pending. Nevertheless, in adopting the

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Accountability Ordinance, the City indicated its intent to discard the old accountability

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regime. Thus, the original, unmodified Accountability Ordinance was the only

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accountability benchmark by which the court could assess the City’s Phase I compliance

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in that area at that time.

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In its order finding the City in full and effective compliance with the Consent
Decree, the court specifically warned:
[T]he court takes seriously, and so should the parties, the many ongoing
concerns raised by the Monitor in his Compliance [Status] Report. If the
City and SPD fail to satisfactorily address these concern, they may well fail
to sustain the progress they have made. The court will not hesitate to restart
the two-year sustainment period if SPD falls below the full and effective
compliance standard set forth in the Consent Decree.

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The court notes that the City still has not . . . concluded labor negotiations
with all of SPD’s unions. . . . The court previously indicated that it will not

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grant final approval to the City’s new police [A]ccountability [O]rdinance
until after collective bargaining is complete. . . . If collective bargaining
results in changes to the [A]ccountability [O]rdinance that the court deems
to be inconsistent with the Consent Decree, then the City’s progress in Phase
II will be imperiled.
(FEC Order at 14-15 (citations and footnote omitted).)
In its order to show cause and in this order, the court is particularly concerned

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about provisions related to officer discipline and accompanying appeals that are found in

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the original Accountability Ordinance that SPOG’s CBA altered. In its response to the

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court’s order to show cause, the United States notes that the terms of SPOG’s CBA

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related to the use of arbitration in an appeal and the burden of proof applied therein “are

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materially unchanged from the time period in which DOJ investigated SPD and the

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Consent Decree was entered.” (U.S. Resp. at 3.) The United States argues that because

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the Consent Decree did not expressly mandate changes to either of those specific items,

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the court should not find that the CBA’s reversion to the old arbitration scheme and

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abandonment of critical aspects of the Accountability Ordinance conflicts with or

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undermines the Consent Decree. (See id.) In making this argument, the United States

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misapprehends both the import of the arbitration process and its intersection with the

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Consent Decree, as well as the court’s starting point for assessing accountability that

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formed the basis for its finding that the City was in full and effective compliance with the

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Consent Decree.

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First, although the Consent Decree contains no explicit mandate concerning the

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arbitration process or the burden of proof therein, the Consent Decree expressly requires

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the City, when “establish[ing] or reorganiz[ing] a government agency or entity whose

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function includes overseeing . . . investigating, or otherwise reviewing the operations of

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SPD,” to “ensure these functions and entities are consistent with the terms of the

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[Consent Decree].” (Consent Decree ¶ 219.) Further, the United States and the City have

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acknowledged that any accountability system proposed or instituted by the City may not

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conflict with either the terms or the purposes of the Consent Decree. (7/11/16 Stip. Mot.

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(Dkt. # 297) at 2, 4.) The Consent Decree expressly defines its purposes or goals as

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ensuring that police services are delivered to the people of Seattle in a manner that (1)

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fully complies with the Constitution and laws of the United States, (2) ensures public and

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officer safety, and (3) promotes public confidence in the SPD and its officers. (See

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Consent Decree at 1.) The court concludes that any provision that implicates

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officer discipline related to use-of-force inherently implicates all three of the Consent

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Decree’s purposes, and thus, must be consistent with them.

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Second, irrespective of what the Consent Decree may or may not expressly

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provide about SPD’s accountability systems, the statements and conduct of the parties

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throughout these proceedings reveal the inadequacy of the past accountability regime, the

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critical need for reform to that regime, and the parties’ acquiescence to the court’s

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jurisdiction in this area. Thus, contrary to the United States’ current position, the old

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accountability regime is not the appropriate baseline for finding the City in full and

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effective compliance with the Consent Decree.

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For purposes of clarifying the parties’ acknowledgement of the old accountability

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system’s inadequacy and their acquiescence to the court’s jurisdiction over reform in this

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area, the court recounts pertinent portions of the proceedings herein. As far back as 2015,

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the City assured the court that it intended to bring all recommendations for reform of

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SPD’s accountability systems before the court. 2 Specifically, at the August 26, 2015,

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status conference, in discussing a schematic of SPD’s accountability systems, the

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City’s representative stated:

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And the development of those [accountability] recommendations, they
started back in 2014, when the CPC and the OPA auditor, consistent with
their obligations under the MOU, started to have conversations with the rest
of the city, to take a look at the accountability system, see what was working,
and what was not working. . . . [B]ut I do wish to assure the Court that it was
always the city’s intent to provide whatever these recommendations were to
the monitor and ultimately to the Court. Certainly the city is very cognizant
of the Court’s role in this and that nothing may occur without the Court’s
approval, ultimately.

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So much of what is proposed by those recommendations is bringing the
current status quo and codifying it in a way that reflects reality. But there
are also several really important expansions that are proposed in those
recommendations that we look forward to discussing. And I think probably
the most significant, from the department’s perspective, is that we created all
of these new review systems, all of these new accountability systems, and
they’re new, they’re all a part of the [C]onsent [D]ecree, and right now the
monitor is looking at it, the Court is looking at it, certainly DOJ, with its
independent obligations, is looking at it.

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(8/26/15 Hr. Transcript (Dkt. #229) at 27-29.)
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Even earlier, on April 4, 2014, Mayor Jenny Durkan, then the United States Attorney
for the Western District of Washington, assured the co-chairs of the CPC as follows:

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As we told the court yesterday: the accountability system is in need of wholesale
review and significant reform. Too many layers have been grafted on over the years
by law and practice. It is almost unthinkable that so many experienced people can
have so much confusion over how things work. It is also unacceptable. Both the
officers and the public must have a system that is transparent, certain and just.
(Lopez Decl. (Dkt. # 532) ¶ 2, Ex. A.)

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In its initial September 30, 2015, memorandum to the court concerning a

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“proposed framework for ensuring systems of review and accountability,” the City

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acknowledged that “there are capacity issues and inefficiencies in the independent

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accountability system as it now functions that must be expediently addressed” and “the

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[accountability] systems [the City] proposes must work symbiotically with all of the

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internal accountability systems, and certainly may not conflict with the provisions of the

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[Consent Decree].” (9/30/15 Br. (Dkt. # 233) at 8.) Toward that end, the City recognized

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the need to submit those recommendations to the Monitor and the United States for

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review, and ultimately to the court. (Id.)

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In their July 11, 2016, stipulated motion regarding SPD accountability systems

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legislation, the parties “agreed that while many of the accountability system elements

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discussed were not specifically referenced in the Consent Decree, any legislative proposal

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must not conflict with either the terms or purpose of the Consent Decree” and that “any

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elements of the legislative proposal that did, in fact, implicate provisions of the Consent

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Decree would require [c]ourt approval.” (7/11/16 Stip. Mot. at 2-3; see also 5/10/16 City

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Br. (Dkt. # 289) at 28-29 (“Once the City’s legislative process has been completed, the

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City will submit any resulting legislation to the Court for review. This will allow the

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Court to ensure that the legislation is consistent with the letter and spirit of the Consent

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Decree.”).)

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In its motion seeking the court’s declaration that it was in full and effective

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compliance with the Consent Decree, the City reiterated “its commitment to allowing the

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[c]ourt to complete [its] review [of the Accountability Ordinance] before termination of

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the [Consent] Decree.” (9/29/17 FEC Mot. (Dkt. # 419) at 18.) More specifically, in its

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Phase II Sustainment Plan, which delineated a series of Audits for evaluating the City’s

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ongoing compliance with the Consent Decree (see Phase II Sustainment Plan at 4-10), the

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City expressly acknowledged additional obligations—beyond maintaining compliance

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with the ten assessments—including “achieving labor accords consistent with the reforms

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of the police [A]ccountability [O]rdinance it passed in 2017” (id. at 12). Further, the City

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restated “its commitment to present a fully-negotiated [A]ccountability [O]rdinance to the

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[c]ourt.” (Id. at 13.)

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Finally, as recently as November 30, 2018, in announcing the completion of

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collective bargaining, the City again recognized its obligation to “present changes to the

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City’s police accountability and review system to the [c]ourt for review.” (11/30/18 City

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Not. (Dkt. # 503) at 1.) The City also confirmed that court’s review of the Accountability

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Ordinance is now “timely.” (Id. at 2.)

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The City and the United States may not repudiate these repeated past

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representations to the court—concerning the old accountability system’s inadequacy, the

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need for reform, and the court’s jurisdiction in this area—for the sake of political

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expediency today. Both expressly by their words and implicitly by their actions and lack

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of objection, the parties have acquiesced in the court’s review of the Accountability

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Ordinance and, more generally, SPD’s accountability systems as a part of assessing

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whether the City has sustained full and effective compliance with the Consent Decree in

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Phase II. The court initiates that review now, and as described below, finds the City to be

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out of compliance with respect to its accountability systems.

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Again, in its order to show cause, the court was particularly concerned by the

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reversal of former Chief of Police O’Toole’s discharge of Officer Shepherd. (OSC at 6-

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7.) The court noted the substantial differences between the process for review of that

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decision under the old arbitration regime and the new Accountability Ordinance prior to

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the Ordinance’s alteration by SPOG’s CBA. (Id. at 7.) No party argues in favor of the

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reversal of Chief O’Toole’s decision or commends the outcome of that arbitration process

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to the court. (See generally City Resp.; U.S. Resp.; CPC Resp.; City Reply.)

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Nevertheless, the City and the United States insist that the Officer Shepherd case is an

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aberration and the City should not be faulted for actions out of its control, especially

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because the City is appealing the decision. (City Resp. at 10-11; U.S. Resp. at 7 (“The

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fact that an arbitration panel, which is not controlled by the City, overturned the City’s

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efforts to enforce its policies is not a fair indication of a failure by the City and SPD to

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hold officers accountable.”).) But as the CPC points out, the issue is not just that an

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arbitrator reinstated this officer, but that the CBA (1) retains significant attributes of the

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old appeals system that the parties admit needs reform, and (2) abrogates critical reforms

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in the Accountability Ordinance that the parties put in place. (See CPC Resp. at 12-13.)

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The United States, nevertheless, cites six instances of officer termination that

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occurred under the old regime over the past 15 years (see Fogg Decl. (Dkt. # 529) ¶¶ 3-8,

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Exs. B-G) and points out that termination was upheld in four of those cases under the old

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accountability regime (U.S. Resp. at 17). Significantly, however, the two that were not

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upheld were terminations associated with the use of excessive force or a threat to use

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excessive force against individuals of color, and one of those two incidents also involved

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an individual who was handcuffed in the back of the officer’s patrol car at the time of the

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event. (Fogg Decl. ¶¶ 6, 8, Exs. E, G.) Further, the two terminations that were not

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upheld were the only cases that involved individuals subject to police action—not matters

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initiated administratively by the SPD. (See id.) Thus, of three relevant incidents before

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the court—the two cited above and the Officer Shepherd appeal—all were overturned in

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the appeals process. The court does not find this statistic reassuring.

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The court has no interest in portions of the Accountability Ordinance that do not

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relate to the Consent Decree, but plainly the portions implicated by Officer Shepherd’s

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arbitration do so relate. Specifically, these portions relate to the use-of-force, the

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supervision of officers, and community confidence, which also correspond to three of the

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ten assessments the parties have used to evaluate compliance. 3 The court does not find

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that the City is out of compliance with any of the areas listed in the Phase II Sustainment

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Plan that are covered by the Audits (see Phase II Sustainment Plan at 4-10), although the

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court is concerned about possible negative impacts by the developments in accountability

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detailed herein. Nevertheless, the parties may continue on the same timeline presently

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outlined in their Sustainment Plan with respect to the Phase II Audits, and the court

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In addition, underpinning nearly all the assessments is adequate and constitutional police
training. Much of the parties’ work in attaining compliance with the Consent Decree has been
focused on reforming SPD training in a variety of areas, including use-of-force, crisis
intervention, and de-escalation. The court notes that the United States identified certain aspects
of SPD’s use-of-force training—specifically, Defensive Tactics—that may have fallen out of
compliance with both the Consent Decree and the Constitution. (U.S. Resp. at 7-9.) The United
States suggests that representatives of DOJ reattend this training to ensure compliance with the
Consent Decree. (Id.) The City agrees with this proposal (see id.), and the court does too.
However, the parties should ensure that the Monitor is also involved in this reexamination.
Finally, the court directs the parties to file a report with the court on this issue once their
reassessment is complete.

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remains hopeful that it will be able to discharge those areas of the Consent Decree within

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the anticipated two-year timeframe. (See id; see also Order Approving Phase II

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Sustainment Plan (Dkt. # 448).)

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The court further clarifies that it makes no ruling concerning the CBA, specific

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provisions of the CBA, or how the City should conduct collective bargaining with any of

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its unions. The CBA is relevant here only insofar as it affects accountability. By their

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conduct and statements in these proceedings, the parties have acknowledged that the old

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accountability system is inadequate for purposes of compliance with the Consent Decree.

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Because the CBA eliminates reforms instituted by the Accountability Ordinance and

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leaves the old arbitration regime “materially unchanged” (see U.S. Resp. at 3), the court

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finds that the City and SPD have fallen out of full and effective compliance with the

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Consent Decree concerning SPD discipline and accountability. Before the court will

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terminate the Consent Decree as it pertains to accountability, the City must bring itself

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into compliance in this area and then sustain that compliance for two years. (See Consent

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Decree ¶¶ 229-30.)

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Finally, the court also is not ruling today that—to be in full and effective

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compliance—the City must necessarily return to the provisions of the Accountability

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Ordinance referenced herein as those provisions existed prior to collective bargaining.

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With the assistance of the Monitor, the United States and the City are free to find other

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methods that will bring the City into compliance with the Consent Decree on

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accountability. To this end, the court ORDERS the City and the United States, with the

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assistance of the Monitor and the CPC, to formulate a methodology (1) for assessing the

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present accountability regime, and (2) for how the City proposes to achieve compliance.

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The court further ORDERS the parties to jointly file their methodology no later than July

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15, 2019.

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III. CONCLUSION

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As stated above, the court FINDS that the City has fallen partially out of full and

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effective compliance with the Consent Decree. The court so rules due to the changes in

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the Accountability Ordinance that occurred following implementation of SPOG’s CBA

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and the City’s reversion to an arbitration system that is materially unchanged from the

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old, inadequate accountability regime. Accordingly, the court ORDERS the City and the

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United States, with the assistance of the Monitor and the CPC, to formulate a

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methodology (1) for assessing the present accountability regime, and (2) for how the City

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proposes to achieve compliance. The court further ORDERS the parties to jointly file

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their methodology no later than July 15, 2019.

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Dated this 21st day of May, 2019.

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A

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JAMES L. ROBART
United States District Judge

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