Last Wednesday, Council President Harrell’s Education, Equity and Governance Committee had a discussion on “bias-free policing.” It was a far-ranging discussion that named many of the problems with trying to hold SPD accountable for their biases — if occasionally short on solutions.
Invited to the table were Gerald Ankerson, President of the King County NAACP; DOnal Phillip, a retired Seattle educator and Office of Professional Accountability (OPA) review board member; Chris Stearns, former chair of the Seattle Human Rights Commission, and Pierce Murphy, Director of the OPA.
As context for the conversation, Harrell explained that while the 2012 consent decree in place mentions bias-free policing, it doesn’t explicitly prohibit it — though it does put in place some processes that deal with aspects of it. For the last year, Harrell and Council staff have been discussing what an ordinance to codify bias-free policing would look like. They have an early draft ordinance, but Harrell is not ready to introduce it yet, and last week’s conversation was intended to inform the final version of that ordinance. A big part of the motivation for Harrell is that the consent decree will be lifted one day; he wants to ensure that efforts to ensure bias-free policing live on past that day.
There were three big issues that emerged from the discussion:
- Data collection;
- Training and evaluation.
The data collection issue is, in some sense, a larger question of what information you need to have in order to prove bias. There is a process in place for so-called “Terry stops” when a police officer stops someone due to “reasonable suspicion” of participation in criminal activity: officers must fill out a specific form, including collecting information on the personal characteristics of the person the officer stopped or detained. That information can then be tracked and analyzed for patterns.
But there is another class of stops: “pretext stops” when the officer has “probable cause” to stop or detain someone. It could be a broken tail light, speeding, jaywalking, or any number of other minor or major infractions. If the pretext stop results in a citation or arrest, then there is paperwork to track it. But if the officer just issues a warning, then there is no requirement for any paperwork at all. As Ankerson pointed out, this means that the data SPD collects is inherently flawed; we have no idea whether a given police officer stops every driver with a broken tail light, or just a subset according to some explicit or implicit bias.
On the flip side, officers spend a large fraction of their time doing paperwork already, and while there is certainly a need to collect more and better data to get a better understanding of a known problem, we also need to find ways to reduce the amount of paperwork that officers do to maximize the time they spend on the street and in our communities.
It also raises the question as to what the threshold is for determining bias. Ankerson pointed out that today it is extremely difficult for people of color to prove an officer is biased unless they say something explicitly biased. Fortunately several of the Council members are attorneys, and could articulate the legal precedents that establish that the threshold is showing impact, not showing intent. So if the data shows that in aggregate an officer stops a disproportionate number of black men, that would create a cause for action.
But problems still remain, and that brings us to the next issue: recourse. Today, even when there is a cause for action in many cases the “damages” to the victim of police harassment are very minimal for a single incident, which makes it difficult to hire a lawyer to prosecute a civil case. And, of course, many people can’t afford a lawyer in the first place. As Harrell pointed out, lawyers need to feed their families too, and if they don’t believe that taking the case would pay their bills, they can’t afford to take the case. So Harrell wants to draft an ordinance that would create a specific cause of action for biased policing that could be taken either to court and would award damages plus legal fees, or to the city hearing examiner — a form of “small claims court” where a petitioner doesn’t need to have a lawyer but damages are capped at $5000. His hope is that this will create strong incentives to bring cases forward when biased policing occurs, and for lawyers to take those cases.
There is a risk, however, that it will create a large number of frivolous cases. So Harrell is also looking to draft the ordinance to allow judges to award legal fees against someone (or their lawyer) if the case is baseless, not brought in good faith, or meant to harass the police.
Which brings us to the issue of training. As Phillip pointed out, it’s not enough to have data if no one understands it and it doesn’t change the narrative we use to discuss what’s happening. We also need training to help people understand the data, the situation, and their role in changing it. SPD’s chief of police has already signaled her intent to increase the amount of training her officers take each year, but as Ankerson noted it’s not about how many hours of training, it’s about whether they are taking the right kind of training. Are we training our police to militarize, or to recognize implicit biases (their own and others’)? And that is really a discussion of the outcomes desired — and evaluation of whether the training is generating desirable outcomes. It’s not at all clear how one would properly codify that in an ordinance, but Harrell rightly acknowledges that the city’s commitment to get it right needs to be codified in a form that will outlive the consent decree.
There are other issues that came up in the discussion as well, some that are more about execution. For instance, how much of what should be in an ordinance is subject to collective bargaining with the police officers’ union? The union members pushed back hard last week against more accountability, and if bias-free policing requires their explicit agreement then it will not come easily. Harrell believes it won’t be subject to collective bargaining, though he admitted that he doesn’t have the final word on that. Last week’s conversation took place before it was announced that the union had rejected the contract, which explains why neither SPD management nor the union were at the table for the conversation, but it made for a lopsided conversation and it won’t be helpful if Harrell can’t find a way for them to participate in future Council hearings.
Harrell didn’t set a timeline for introducing his draft ordinance, nor did he specify which of several relevant Council committees it might be referred to. The failed contract talks certainly won’t accelerate the pace, either. But Harrell seemed impatient to create some forward motion. It’s a worthy cause, and we can find a way to make it happen.