DOJ says SPOG contract is fine, Adley Shepherd reinstatement not a systemic issue for SPD

This afternoon, the Department of Justice submitted its brief to U.S. District Court Judge James Robart in response to his order to show cause why the terms of the city’s contract with SPOG and the recent reinstatement of Officer Adley Shepherd don’t mean that the city has fallen out of compliance with the Consent Decree.

In its brief, the DOJ argued that the overturning by an arbitrator of Shepherd’s termination isn’t a sign of a systemic pattern or practice of excessive use of force. It also found that the SPOG collective bargaining agreement neither conflicts with the Consent Decree nor threatens to undermine compliance with it.

In the case of Officer Shepherd, the DOJ reminded the court that the intent of the Consent Decree was to eliminate the “pattern or practice of alleged misconduct,” rather than all isolated incidents. In Phase I of the Consent Decree term, that was done through a set of rigorous assessments. In Phase II, after the judge found the city to be in full and effective compliance, it’s through a scheduled set of comprehensive audits. The DOJ emphasized that all the assessments and audits are based upon extensive data collection to show the statistical patterns and practices, not the anecdotes.

As for the Shepherd incident, the DOJ made several specific observations:

  • The consent decree was structured so that SPD had time in the beginning to develop, implement, and train new standards of conduct for its officers. Once those were in place, then statistics would be gathered for a specific period of time to assess whether those new standards were effective in eliminating the offending patterns and practices of misconduct. In the case of use-of-force policies (which Shepherd violated), the assessment period began in July 2014 and extended to October 2016. But Shepherd’s incident occurred in June 2014, technically while officers were still being trained (and the DRB report notes that Shepherd and not completed training on them yet). So it pre-dates the assessment of SPD’s use-of-force standards.
  • The system seems to have worked as intended: Shepherd’s incident was referred to the OPA for investigation, the OPA recommended termination, and the Chief of Police agreed and terminated him.
  • The arbitration panel was not under control of the city, so it doesn’t make sense to knock the city for the fact that it overturned Shepherd’s termination. Besides, the city has appealed the arbitration panel’s decision, showing it is committed to the notion that he should be terminated. (we’ll come back to the question of whether arbitration is appropriate as part of the disciplinary appeals process)
  • This year, as part of Phase II, there is scheduled to be an audit of SPD officers’ use of force. The DOJ will use that audit to determine if there are systemic problems.
  • The Shepherd case did raise one red flag for the DOJ, however: as part of the arbitration process, an SPD training officer who teaches the Defensive Tactics class testified that he teaches officers who are struck by a suspect to initially strike back as hard as they can. That violates the codified principle that in order for force to be appropriate it must be “objectively reasonable, necessary under the circumstances, and proportional to the threat or resistance of the subject.” The DOJ noted that it intends to re-attend the Defensive Tactics training class later this year (it attended and approved it in 2014) to re-evaluate the content being taught, and will report to the Court on its findings.

The DOJ requested that Judge Robart withhold judgment on whether SPD has fallen out of compliance due to its patterns and practices of use of force until the audit is complete later this year, rather than draw any conclusions from the single Shepherd incident.

When discussing the SPOG contract, the DOJ begins by pointing out that the issue at hand isn’t the contract itself, but rather the 2017 police accountability ordinance passed by the city; the SPOG contract is only relevant to the extent that it supersedes and modifies the ordinance — which is still waiting for Robart’s approval.

The DOJ’s conclusion on the SPOG contract — and more to the point, the police accountability ordinance that it modifies —  was that it neither conflicts with the Consent Decree, nor threatens to undermine compliance with it. In its brief, it reminded the court that under the Consent Decree and the accompanying MOU, the Community Police Commission was required to evaluate the accountability system in place and recommend any changes it sees fit. But the city was not required to make any of those changes to the accountability system; it was entirely within its discretion in how it responded to the CPC. As such, the DOJ is only concerned with the SPOG contract, as implemented on top of the accountability legislation,  if it conflicts with the consent decree, e.g. if it makes it more difficult for city to hold its officers accountable for misconduct specifically proscribed by the Consent Decree.

There were two areas of potential concern, which were also raised in Judge Robart’s “order to show cause”:

  • retaining arbitration as an option for disciplinary review;
  • determining the burden of proof that must be reached to find an officer in breach of the standards of conduct.

With regard to arbitration, the DOJ observed that arbitration has been an option in SPOG’s contract with the city since well before 2008. They also cited a Loyola University professor to show that including an option to appeal a disciplinary decision to arbitration is “typical” of collective-bargaining agreements for law enforcement officers across the country. It further noted that in the new contract, the system is changed to a single arbitrator rather than a 3-person panel, and the process for selecting the arbitrator has changed to make it harder to game the system to get an arbitrator likely to favor one’s side. As such, the DOJ concluded that there is no evidence that the arbitration process included in the new CBA does not make it more difficult than the old system to hold officers accountable for their conduct.

In discussing the “burden of proof” issue, the DOJ went back into the history of previous contracts. Prior to 2008, the contract in place stated that discipline may be imposed for “just cause,” but it didn’t specify the standard for burden of proof that must be reached. That left the decision to the standard practices of arbitration, which allows an arbitrator to choose an appropriate standard on a case-by-case basis by applying a “reasonableness” rule that takes into consideration both precedents and the context of the individual case.

In the contract signed in 2008, one particular case was called out: officer dishonesty was presumed to carry a penalty of termination, and the burden of proof to be met was “clear and convincing evidence.” As the DOJ views it, this was a calculated tradeoff: officers were being held to a higher standard of accountability for dishonesty (i.e. no punishment less than termination could be applied), but it came with a commensurate higher burden of proof. In the early phases of developing the 2017 police accountability legislation, the DOJ was asked for its opinion on that section of the contract, and it argued at the time that it could undermine public confidence to have the higher burden of proof in place without a clear basis for it. But now the DOJ says that it has reconsidered and believes its original guidance was in error: with the historical perspective there was a clear and appropriate basis. Nevertheless, the police accountability ordinance scrapped it, as did the new SPOG contract. The ordinance mandated a specific, but lower, burden of proof more broadly. The SPOG contract, however, instead went back to the pre-2008 approach: the burden of proof is deferred to “traditional principles governing arbitration.” The DOJ’s academic expert also affirmed that this is a common approach in collective-bargaining agreements, including those for Portland, Oakland, Boise, and Tacoma.

The DOJ found that over the past 15 years, only six SPD terminations were brought to arbitration, and for all of them the standard used was the one in the new SPOG contract. In four of the six cases, the termination was upheld. Based on this, the DOJ concluded that the SPOG contract’s standard for burden of proof will not make it more difficult to discipline officers.

Based upon its analysis, the DOJ asked Judge Robart to do three things:

  1. Allow the police accountability ordinance, as modified by the SPOG contract, to take full effect.
  2. Defer a decision on whether the city is sustaining its full and effective compliance with the Consent Decree, pending completion of the audits scheduled as part of Phase II.
  3. Approve the DOJ’s (unopposed) request to re-audit the Defensive Tactics training class as part of the schedule of audits taking place this year.

You may recall that the federal government shutdown delayed the briefing schedule on Robart’s order. Yesterday, the parties asked for a further delay due to Seattle’s recent winter storms. Today Robart granted that request, ordering the CPC to deliver its brief by February 20, and the City of Seattle to file its brief by February 27.  Generally speaking, the DOJ and the City are on the same page. But we know from past comments that the CPC is no fan of the SPOG contract. Now that the DOJ has gone on record raising no complaints, we will see how the CPC responds as the lone dissenting party — and ultimately how Robart weighs the different perspectives.