Robart threatens to find SPD out of compliance with Consent Decree

Last Friday, the City of Seattle filed an official notice with the U.S. District Court that it had negotiated and ratified a new labor agreement with Seattle’s police officers. Judge James Robart, who oversees the Consent Decree, had previously signaled that he would not weigh in on the merits of the new contract until it was properly before his court. But now that it is, he wasted no time in making his thoughts known: this morning he issued an “Order to Show Cause” why he should not find that the city has failed to maintain full and effective compliance with the Consent Decree.

Last January, Robart found the city in “full and effective compliance,” which started a 2-year countdown to the termination of the consent decree. If at any point during those two years the judge finds the city out of compliance, then the countdown restarts at the beginning once the city has re-established compliance to the Judge’s satisfaction. Needless to say, it would be a significant setback if eleven months in Robart ruled that the city had fallen out of compliance.

Robart’s order cites two concerns:

  1. whether the new collective-bargaining agreement rolls back necessary reforms;
  2.  the implications of a recent Disciplinary Review Board (DRB) reversal of the firing of Officer Adley Sheperd.

On the first issue, Robart notes the CPC’s objections to the new agreement, and in particular its rollback of reforms that had been written into the police accountability legislation passed by the City Council last year. While acknowledging that technically his job is to determine whether the agreement violates the 2012 Consent Decree, not the police accountability legislation, he nevertheless attempts to interpret his mandate more broadly:

The court notes that the Consent Decree does not mandate that the City make specific changes to its discipline and accountability structures. Nevertheless, the court is responsible not only for ensuring that the City complies with all the specific terms and conditions of the Consent Decree, but also that it does not do anything that—although not specifically mandated by the Consent Decree—would undermine compliance with the document. The United States has acknowledged that such review of the SPD’s accountability systems is appropriate. (See 7/10/17 US Br. (Dkt. # 401) at 2.) Further all the parties and stakeholders agree that, even though many of the elements of the SPD’s accountability system are not specifically referenced in the Consent Decree, any legislation concerning that system must not conflict with either the terms or the purposes of the Consent Decree. (See 7/11/16 Stip. (Dkt. # 297) ¶ 7.) Consistent with this agreement, the court previously identified the following test for reviewing legislation related to SPD’s accountability systems: Does the legislation conflict with the terms or the purposes of the Consent Decree, which include delivering to the people of Seattle (1) constitutional policing, (2) effective policing, and (3) policing in which the community can have confidence? (1/6/17 Order (Dkt. # 357) at 4.) Indeed, in the court’s view, ensuring that appropriate oversight and accountability mechanisms are in place is one of the cornerstones to securing constitutional and effective policing in this City beyond the life of the Consent Decree. In short, getting this aspect of reform right may well be a linchpin to the long-term success of this entire process.

With this, Robart is announcing that he intends to weigh in on what parts of the police accountability legislation need to be preserved. However, he is wading into deep water, since he will need to balance the requirements of competing federal and state laws that mandate not only the role and limits of law enforcement, but the rights of law enforcement personnel to collective bargaining. Robart has signaled before that ultimately he will be ruling on whether the city has achieved “constitutional policing,” where the U.S. Constitution trumps all other federal and state laws. But sorting that out will be complex, and in the end will open up avenues for appealing his decisions.

Robart’s second issue relates to the case of Officer Adley Shepherd, who in 2014 was caught on camera punching a handcuffed suspect in the back of his police car. Shepherd argued that the suspect had kicked him and he was subduing her; while he clearly says on the video that she kicked him, the video itself is unclear as to whether her kick actually made contact with Shepherd.  In 2016, then-Chief O’Toole fired Shepherd as part of the department’s disciplinary process. Shepherd appealed his firing to the Disciplinary Review Board, and on November 20 of this year (one week after the new labor agreement was ratified, but still operating under the old procedures) the three-person DRB panel reversed Shepherd’s firing, instead handing down a 15-day suspension and granting him back-pay, but requiring that he not return to his previous assignment on patrol.

In today’s order, Robart implies that he is concerned by that reversal, both as a miscarriage of justice and because of what it signals for the disciplinary review process under the new labor agreement. The DRB is one of several appeals paths under the old labor agreement that expired in 2014. The police accountability legislation retired the DRB, requiring instead that all disciplinary appeals go through the Public Safety Civil Service Commission (PSCSC). However, it also did away with arbitration, which under state law is a right that police officers retain that the city may not legislate away.  Further, as a whole the appeals process is a mandatory topic for collective bargaining; if the city attempts to unilaterally legislate it — as it did in the police accountability legislation — then that is most likely an unfair labor practice under state law. The new labor agreement includes both the PSCSC and arbitration as avenues for appeal; it also does away with the DRB other than for cases already pending or if the new labor agreement is somehow now approved. However, the language around the DRB in the new agreement is a bit complex, and both the CPC and apparently Robart were left with the impression that the DRB lives on. From Robart’s order today:

However, it is the court’s understanding that the new CBA with SPOG does not retain the PSCSC or the PSCSC’s standard of review as set forth in the Accountability Ordinance. Rather, the new CBA reverts to the old appeal process used by the DRB—the same process that was utilized to overturn former Chief O’Toole’s discipline of Officer Sheperd and return him to duty.

Robart also raises the issue of the standard of review for appeals in the new agreement: a hot topic that the city and the CPC disagree on, and the DOJ still has unanswered questions on.  It’s no surprise that Robart wants to dive into that issue.

What is surprising is the speed in which Robart wants to move forward. In last Friday’s filing, the city said that it was actively working with the DOJ and the court-appointed police monitor to propose a briefing schedule to the court that would encapsulate the new labor agreement as well as its relationship with the police accountability legislation (which Robart has withheld his approval of pending the completion of labor negotiations). One could generally expect that schedule to run well into early 2019.  Robart’s order today dramatically accelerates that schedule: he has ordered briefs to be filed by the city, the DOJ, and the police monitor by December 17th, and has granted the CPC the right to file its own brief on that same timeline.

Robart has asked the parties to address four issues:

  1. whether the account of the events he lists in today’s order is accurate;
  2.  whether the reversal of the firing of Officer Shepherd through the DRB process, and to his understanding the reinstatement of the DRB process under the new labor agreement, means that the city has fallen out of compliance with the Consent Decree;
  3.  what are all the changes to the police accountability ordinance and other SPD policies and procedures that the new labor agreement precipitated, whether any of those changes conflict with the Consent Decree, and whether those changes undermine the city’s full compliance with the Consent Decree;
  4. recommendations on how it should proceed under the Consent Decree in light of present circumstances.

I have requests in to the Mayor’s Office and the City Attorney for comments on today’s order. Council member Lorena Gonzalez, who chairs the City Council’s public safety committee and was the prime author of the police accountability legislation and shepherded the SPOG contract through the Council, was unavailable for comment. The CPC issued its own statement: “We’re encouraged that Judge Robart is taking a close look at the contract and its real-world implications, like the case of Adley Shepherd. The commission will meet Wednesday to discuss our next steps and will work diligently over the next two weeks to prepare our briefing.”

UPDATE: Here’s a statement from Mayor Durkan:

“We look forward to addressing the Court’s order, demonstrating that SPD remains in full and effective compliance with the federal Consent Decree that I signed as the United States Attorney, and showing that the recently enacted Agreement with the Seattle Police Officers’ Guild furthers both public safety and reform under the Consent Decree. Thanks to the Collective Bargaining Agreement, the Inspector General will now have ‘free and unfettered’ access to SPD to ensure greater long-term accountability. In addition, it would provide increased civilianization at the Office of Police Accountability.

“Chief Best and I believe the arbiter was wrong to reinstate Officer Shepherd, and directed the City Attorney to appeal that decision to the Superior Court the day it was rendered. The City Attorney is preparing that appeal.”

It’s worth noting that under the terms of the old SPOG contract, which is binding on Shepherd’s DRB process, DRB decisions are “final and binding.” So it’s unclear what the grounds would be for appealing its decision.

Clearly Robart has become impatient: he knows that in 13 months the two-year period of “full and effective compliance” ends, and the City will ask him to terminate the Consent Decree as agreed upon under its terms. If all of the pieces for sustained police reform are not in place by then, Robart will be in a difficult position: he will need to determine whether to abide by the agreement, or whether to find grounds to extend it until he is satisfied.  One can imagine he would prefer to engineer a solution such that in January of 2020 he is not faced with that dilemma — and thus the urgency to move things forward now.