Last night the city filed a response to Judge Robart as to why he shouldn’t find that SPD is no longer in full compliance with the consent decree. Attached to that filing, at the judge’s request, was the written finding of the Disciplinary Review Board (DRB) in Officer Adley Shepherd’s appeal of his termination for violating the department’s use-of-force policy in 2014 when he punched a handcuffed suspect.
The DRB’s finding, written by the neutral arbitrator on the 3-person panel, fills out more details on the case, ultimately concluding that the case was very close.
The ruling elaborates on the facts of the incident, including some points that have not previously been made:
- While Shepherd was attempting to put the suspect in the police car, his partner should have been moving around to the opposite door, but for some reason stopped behind the car and wasn’t in position to assist.
- It had been previously reported that the suspect had kicked at Shepherd. The report details that the kick did, in fact, land on his face. It left him “a little off-balance” and he “stepped back a bit.”
- After kicking Shepherd, the suspect attempted to exit the car. She got as far as having one foot out the door and on the ground. This is significant because it means that Shepherd wasn’t just trying to subdue her from further assaulting him; he was also trying to prevent her from fleeing.
- Two seconds elapsed between when the suspect kicked Shepherd, and when he responded by punching her in the face. That raises a pivotal question about whether it was sufficient time for Shepherd to consider all of his alternatives, if any, to responding with force.
- The suspect was never charged with assaulting a police officer.
- The incident happened on June 22, 2014. SPD had revised its use-of-force policy in early 2014. Shepherd had completed some, but not all, of the required training on the new policy by the date of the incident.
The DRB considered two questions in its review:
- Did Officer Shepherd’s actions violate the city’s use-of-force policy?
- If so, was termination the appropriate remedy?
On the first question, the neutral arbitrator concluded that yes, he had violated the policy, but it was close. She clarified that the standard of review in place was “a preponderance of the evidence,” not the higher “clear and convincing evidence” that SPOG argued for. In fact, she makes clear later that the evidence did not reach the bar of “clear and convincing evidence” and that reasonable minds could disagree. Some of the reasons for her conclusion:
- She found that the training received by Shepherd was “less than robust, but not fatal to the City’s case,” and she expressed concerns that the city gave officers “some unclear or conflicting signals” on what force is permitted with handcuffed suspects. In the end, though, she found that Shepherd’s conduct should not be excused because his training was inadequate of conflicting.
- She found that the two seconds between the kick and the punch “gave Officer Shepherd a little time to reflect, though not a lot of time” — hardly the “split second” response that SPOG argued for, but enough that Shepherd could have stepped back and partially closed the car door, both to protect himself from further kicks and to prevent her escape. she also concluded that given there were three other officers and a police dog on the scene, she wasn’t much of a flight risk, and Shepherd could have asked his partner to assist in subduing her in the car.
On the second question, the appropriate penalty for violating the use-of-force policy, she notes that the issue is whether the penalty issued by then-Chief O’Toole was “unduly severe.” She says that the penalty must be proportional to the offense, it must not be wholly out of line with penalties in similar cases, it must consider the officer’s employment record, and must reflect the principles of “progressive discipline.”
The arbitrator found that termination was not proportional to the offense when considered in context:
- He didn’t have much time to assess the situation and consider his options, which were limited given that he had been kicked in the face by a booted woman, and his partner wasn’t in position to help him. She notes that he had previously tried de-escalation techniques but they were not effective. Also, he landed one punch and then stopped since she quit resisting.
- As mentioned before, the violation met the standard of “preponderance of the evidence,” but not the higher standard of “clear and convincing evidence,” and was a close decision at that.
- She found it “disturbing” that Shepherd had been trained to respond with measured force when a suspect uses force again him, rather than ” a strike that should not exceed what is necessary to subdue the suspect.” In the hearing, Shepherd’s trainer confirmed that this was the training he had received, and the city did not present any evidence to contradict that statement. She found that while the training doesn’t excuse Shepherd’s conduct, it is a mitigating factor.
- In her review of similar cases, the arbitrator found several cases where officers had received discipline, but none where the officer had been discharged.
- Officer Shepherd had only one other instance of discipline on his record, a tragic 2009 incident unrelated to use-of-force. Nevertheless, O’Toole argued that the two incidents together showed that Shepherd showed “poor judgment.”
- She found it “troubling” that O’Toole came down harder on Shepherd because he was unwilling to acknowledge that he had made a mistake. “An officer arguably should not be unduly penalized for an honest, sincere and even reasonable, but mistaken belief that he or she had done nothing wrong,” the arbitrator wrote, and argued that believing he had done nothing wrong doesn’t imply that he is incapable of changing his behavior.
- Shepherd had been employed with SPD since 2005 and had a strong performance record.
- SPOG had suggested that his firing was politically motivated, “intended to send a message to the public, court monitor and DOJ and SPD officers that [SPD] was taking its use of force policies seriously.” The arbitrator noted that perhaps it was true that SPD was sending a message, but even so didn’t find that improperly political.
The arbitrator decided that the appropriate penalty would be a 3-working-week (15 day) suspension without pay, rather than an “excessive” termination, and that the reduced penalty would still send a message that SPD takes its use-of-force policies very seriously. She also notes that the penalty she was imposing did not include reinstating Shepherd to his previous duties; SPD retained unilateral authority to reassign him to other duties so long as it doesn’t abuse its discretion — though it is certainly within its discretion not to assign him as a trainer on use-of-force or defensive tactics.
The city has asked a King County Superior Court judge to review the DRB ruling, on the grounds that it is violates the explicit public policy.