A cause of action for police accountability

Three City Council members have quietly launched a new offensive in the fight for police accountability: making it easier for people to sue the city for police misconduct.

Council President Harrell and Council member Gonzalez, both attorneys, along with Council member Herbold, have recognized that in some cases it’s difficult to win a case against the police department. Even if you did, the potential monetary damages you would be awarded are tiny — too small to attract a lawyer for your case. They want to fix that.

Harrell raised this issue in the context of “bias-free policing” — a topic discussed in the Department of Justice’s findings in their investigation of the Seattle Police Department, but one where no specific corrective actions were required under the consent decree.

A frequent incident of police bias is the “Terry stop,” when a police officer detains someone because of “reasonable suspicion” that the driver is involved in a crime or is about to commit a crime. The Supreme Court has ruled that Terry stops are legal but gave a hazy definition for when an officer has enough “specific and articulable facts” to justify it.  That has left open the door for bias to creep in, as police officers in many cities stop people of color at a far higher rate than Caucasians.

But there’s a problem: you can show police bias across a large pool of Terry stops, but it’s extremely difficult to show it for a single stop. In response, Harrell and Gonzalez are pushing for SPD to commit to long-term data collection of both Terry stops and “pretext stops” (when there is clear lawbreaking such as a broken taillight or running a red light). The consent decree requires some data collection, but Harrell wants to ensure that it continues after the consent decree is eventually lifted.  His goal: to establish a public data set so that it’s possible for a citizen stopped by a police officer to show that officer has an established pattern of stopping black people more often than those of other ethnicities. With that data set, it’s far easier for a wronged citizen to establish a “cause of action” against the city justifying a winnable lawsuit. Harrell would like to see two paths for citizens to make claims: through the Hearing Examiner’s office without lawyers but with a damages cap of $5000, or in a traditional court with lawyers but no cap on damages. The eventual legislation would be vetted through Gonzalez’s Gender Equity, Safe Communities and New Americans (GESCNA) Committee. (Watch the Council discussion here)

Herbold has her eyes set on establishing a separate cause of action: for when the police violate citizens’ rights to observe and record police activity and to express themselves lawfully at the scene of a crime. There are many documented cases across the country of police harassing citizens taking videos of police brutality, sometimes arresting them or confiscating their cameras. Herbold has drafted an ordinance (also working its way through Gonzalez’s GESCNA Committee) that spells out observing citizens’ rights at the scene of the crime, as well as the limits of those rights when they interfere with legitimate police actions. But the ordinance also explicitly creates a cause of action for a civil suit against the city when the police violate those rights, including punitive damages up to $5000. (Watch the discussion here)

This is police accountability the hard way — and the expensive way. In the short term, this will result in more lawsuits against the city, some of which it will lose. The hope is that in the long-term the financial consequences will be another incentive for SPD to clean up its act, though it’s unclear how the financial consequences will trickle all the way down and change officers’ behavior.

As Amy Tsai of Council Central Staff said in her memo on the “observer’s bill of rights,”

It is in the financial interests of the City not to create new causes of action against itself lightly. Creating a cause of action is, however, one means of discouraging City misconduct and thereby strengthening protections for the public.

Someone (we’re looking at you, MyNorthwest) will surely make the case that the Council members are showing fiscal irresponsibility by encouraging lawsuits against the city. Whether it reaches the level of irresponsible behavior is debatable, but they are surely balancing fiscal conservatism against social justice and accountability — and tipping the scales in favor of the latter.

While the implementation of the consent decree creeps along at a snail’s pace, the Council is finding its way to move forward on police accountability through this kind of indirect incentive system, wherein bad behavior will cost the city money through civil lawsuits. If it works, it will be interesting to see if the Council decides to apply the method to other branches of city government where the Mayor has decided to thumb his nose at the Council. Imagine, for example, a cause of action (sponsored by Sawant) for homeless encampment sweeps, or one for city projects that block bike lanes (sponsored by O’Brien).

(this article has been updated from an earlier version in which I incorrectly stated that Council member Gonzalez is sponsoring the Observers’ Bill of Rights — Council member Herbold is. My apologies for the mistake.)