Bias-free policing bill passes out of committee

This morning, the Council voted out of committee an ordinance on bias-free policing, an effort almost a year in the making.

Last summer, Council President Bruce Harrell began a discussion of bias-free policing, with two intents:

1. To create a cause of action that would gives attorneys an incentive to take on cases of discriminatory behavior by police officers. Currently since such cases rarely have actual damages, attorney usually need to work pro bono if they take them on — and so rarely do.
2. To ensure that there is proper data collection so as to allow for discovering patterns of biased policing.

In February Harrell brought forth a draft ordinance based on the legislation, and the lawyers on the Council geeked out on the finer points of the bill.

An updated version of the bill was discussed this morning, along with a memo listing a number of changes (many minor) made since February. Of note:

• The definition of “biased policing” was edited to clarify that officers using their discretion to benefit a member of a protected class is not included, only those that have adverse impacts.
• The standard for making a claim of biased policing was clarified. A plaintiff must demonstrate that an officer “acted with an intent to discriminate against the individual” based on that person’s status as a member of a protected class. The city can defend itself from the claim by showing that the officer had a legitimate, non-discriminatory reason for the action, but the plaintiff can still make the claim if he or she “proves that the stated reason is a pretext for unlawful discrimination.”
• The statute of limitations for filing a claim was increased from 180 days to 3 years, consistent with other similar civil rights claims. This makes it easier to incorporate the results of an OPA investigation into the case, since OPA can take up to 180 days to investigate.
• The case can be filed in “a court of competent jurisdiction.” Previously the bill listed Seattle Municipal Court as one possible venue, but that court rarely hears civil claims. Now it’s up to the plaintiff to choose the appropriate court that has jurisdiction. The bill also excluded the Office of the Hearing Examiner as a potential venue.
• It clarified that while an OPA investigation (or lack thereof) or disciplinary action against the officer (or lack thereof) related to the event may be used as evidence in a biased-policing case, neither are conclusive proof as to whether an act of biased policing di or did not occur.
• It clarified that a plaintiff must file a claim for injuries or damages with the City before filing a biased policing claim, to make it consistent with requirements for other claims against the City.
• It expanded the kinds of interactions with police officers in which an act of biased policing might occur. Originally it just listed traffic stops and “Terry stops,” but now it includes any police interaction — including social interactions. This led to a protracted argument about whether an interaction that didn’t involve some form of use of police authority (pulling someone over, issuing a citation, detaining someone, or an arrest) could or should be included. Council member Burgess argued against including social contacts, because of the ambiguity and because they don’t to discourage officers from interacting casually and socially with members of the public. If a social interaction escalates to some form of police action, he argued,then it would still be covered, but otherwise interpreting a social contact as biased policing is too vague a standard. Gonzalez countered that biased policing could be an officer “sniffing around” looking for a reason to arrest someone, but pointed out that the burden is on the plaintiff to show the adverse impact. Harrell suggested to Burgess that if might see it differently if viewed through the lens of an African-American, but later conceded that he thought he could work with Burgess to make further modifications to the language to address his concerns. “I do support the legislation,” Burgess added later. We just need to fix it,” in relation to the “social contact” language.
• It removed a requirement that the data collected follow the National Incident-Based Reporting System (NIBRS) standard, to allow SPD to “collect more data and use and integrate that data more effectively with their own system.”
• It removed a reference to using a third party to collect and assess the data, and instead empowered the new OPA and Office of the Inspector General to gain access to the data as part of their investigative duties.
• It removed the requirement to set up a separate fund to pay claims of biased policing, opting instead to use the Judgment and Claims Subfund that the city already uses for this purpose.

The bill was passed out of committee with a 3-0 vote; Gonzalez, Harrell and Bagshaw voted yes. Burgess abstained, though he plans to support it if he and Harrell can amend it to fix his concerns.

The bill will come before the full Council next Monday afternoon for a final vote.

A side note: sitting at the table during markup was Hillary Madsen, an attorney and registered lobbyist for Columbia Legal Services. As I’ve pointed out before, this is highly inappropriate. It makes perfect sense for the Council members to invite in all interested parties for early discussion of legislation — and that happened earlier in this morning’s meeting with Shankar Narayan of ACLU Washington, but when the Council members are actually taking votes on bills and amendments the lobbyists should not be sitting next to them on the table — it completely undermines their credibility as representatives of Seattle’s voters rather than special interests.  In a pair of tweets this afternoon, Gonzalez responded:

The fact that Madsen did not actively participate in the discussion doesn’t justify her presence, which alone signals her heightened status over other Seattle residents sitting in the audience, and applies extra pressure on Council members to act in a preferred direction. And I doubt that she was invited to simply sit quietly at the table; she was no doubt free to speak and participate if she chose.

Last year, Council member Sawant also invited a registered lobbyist to sit with the Council members at the table during markup of a bill.