Robart finds city partially out of compliance with the SPD Consent Decree

This morning Judge Robart ruled “from the bench” that he has found the City of Seattle to be partially out of compliance with the 2012 Consent Decree between the Department of Justice and the city regarding biased policing.

A quick recounting of recent history: in January 2018, Robart found that the city had achiieved “full and effective compliance” with the terms of the Consent Decree. That ended Phase One of the decree, and moved the city to Phase Two, under which the city must sustain compliance for two years before the judge can end Phase Two and terminate the Consent Decree.

However, in that ruling Robart wrote:

The court further notes that the City still has not named an Inspector General or concluded labor negotiations with all of SPD’s labor unions. Although the City has executed a new collective bargaining agreement with SPMA, it has not yet reached agreement with the Seattle Police Officers Guild (“SPOG”). The court has previously indicated that it will not grant final approval to the City’s new police accountability ordinance until after collective bargaining is complete… If collective bargaining results in changes to the accountability ordinance that the court deems to be inconsistent with the Consent Decree, then the City’s progress in Phase II will be imperiled.

In essence, Robart was saying that he was carving out accountability from the finding of full compliance and would wait to make a separate finding on that until the SPOG contract negotiations concluded.

In March of 2018, the city submitted its plan for sustaining compliance for the two years, and later that month Robart blessed it. Last fall, the city completed its negotiations with SPOG, and in November, over the objections of the CPC, the City Council approved it — noting that there were a small number of issues that it was concerned about and hoped Robart would review. In early December, Robart issued an “order to show cause” why he shouldn’t find the city had fallen out of compliance due to the terms of the SPOG contract and the overturning by an arbitrator of a disciplinary decision made by the Chief of Police in the case of Officer Adley Shepherd. Between then and March, the city, the DOJ, the CPC, and other parties field legal briefs with the court discussing their views on the questions Robart raised in his order.

After weeks of silence, on April 22 Robart scheduled today’s hearing “to address the issues the court raised in its order to show cause… and the parties’ and the Community Police Commission’s responses to that order.”  None of the parties knew what to expect from today: whether Robart would pummel them with questions, have an in-depth discussion of particular issues, or issue a ruling. It turns out it was the third: in a fairly uncharacteristic move for Robart, he ruled from the bench today — though his ruling was light on details and he deferred much to a forthcoming written ruling.

Here’s what he did say, over the course of a speech that lasted over half an hour:

  • He found that the city is still in full and effective compliance with all ten of the points in the sustainment plan. In fact, he walked through each of the ten, and heaped praise on the OPA, city leadership, and most of all the officers of SPD for their work and the results they have achieved. He said that he found it “extraordinary” that SPD had achieved a 70% approval rating on the most recent survey, though he noted the continuing disparity among racial groups. Robart sad that “perhaps the most remarkable accomplishment of the Seattle Police Department” was the changes in crisis intervention and use of force. He did note that the early intervention system is “still a work in progress” since the models that the Court encouraged SPD to adopt didn’t work as advertised, but he found that “progress is sufficient to find full and effective compliance.”
  • After giving a lengthy history lesson on SPD reform since 1996, Robart observed that “the difference is just profound” between then and today, but noted, “Ladies and gentlemen, we are better but not perfect.” Then, in a remarkable and fairly stunning moment of courtroom theatrics, he instructed his clerk to play the dashcam video of the Adley Shepherd incident on the big-screen monitors in his courtroom. After the video, he focused in on the arbitrator’s overturning of then-Chief O’Toole’s decision to terminate Shepherd. Robart said that the court does not need to decide who is right or wrong, but the question for him is whether a labor arbitrator, who is concerned about being able to continue to get hired for future cases, “has the right to overturn the decision of the trained, experienced Chief of Police,” and whether that system complies with the Constitution and ensures the safety of officers and citizens. “The ultimate question is whether this weakens the system in the consent decree. The court finds that it does.”  Robart clarified that he was not rejecting the collective-bargaining agreement with SPOG, and highlighted his pleasure with several terms including the higher pay for officers and the endorsement of the OPA and Inspector General.
  • Robart raised three concerns with the SPOG contract: first, the standard of review for disciplinary action; second, the appeals process and the role of labor arbitrators within it; and third, the implications of the 180-day limit for investigations of misconduct.
  • Robart went off on a tangential discussion of the homeless situation, noting that while “some believe we can arrest our way out of homelessness,” he disagreed. He further noted that many of the issues are not controlled by SPD, including who gets prosecuted, and that some percentage of Seattle’s homeless are because of financial events, and “We can’t arrest them for that.” Strangely, he also decided to raise attention to the fact that several SPD officers are running for City Council this year.
  • Robart closed by saying that he was “very proud of the Seattle police,” and proud that in a time when the city has asked them to make many changes, they have done so. While acknowledging that “there is no endgame to reform,” Robart sounded a slightly apologetic note, saying that while the men and women of SPD have worked hard to achieve compliance “they have seen perhaps an unreasonable amount of attention from me, a federal court judge.”
  • He said, “I regret having to find lack of full and effective compliance,” and left it up to the parties to determine how to move back into compliance.

Usually Robart is on top of the details, but in his bench ruling today he left out most of the important ones. He didn’t explian his legal conclusions for why he found fault with the three specific areas of the SPOG contract. He also didn’t specify whether he is officially stopping the 2-year sustainment period, which would require it to start from the beginning again once the issues are resolved and the court finds the city once again in full and effective compliance. He did say that he expects to issue his written ruling early next week.

The fact that he didn’t issue the ruling today obviously means he isn’t done writing it yet — one would assume that on April 22nd when he scheduled today’s hearing, he expected to have it done by today. But the fact that he uncharacteristically left out so many critical details suggests he may not even be done with his legal arguments, or working out the full implications of his decision.

He left some big legal issues on the table along with the logistical details. One of the biggest is his comment suggesting that an arbitrator should not have the power to overturn the Chief of Police’s disciplinary decision. Under Washington state law, public employees have the right to arbitration, so Robart seems to be arguing that arbitration for police officers’ disciplinary matters is not compatible with constitutional policing — i.e. that the state law violates the U.S. Constitution when applied to police officers.

Given the big gaps in details in today’s bench ruling, essentially nothing is going to happen until Robart issues his written ruling early next week.

Shortly after the hearing, Mayor Durkan, City Attorney Holmes, and Police Chief Best held a joint press conference in City Hall. While all three deferred many questions until after Robart’s written ruling is issued, Durkan put her best spin on it, highlighting Robart’s finding that the city was in full compliance with everything in the sustainment plan, and his effusive praise for SPD officers. She also noted that the CPC had raised “dozens and dozens of issues” with the SPOG contract, and Robart had narrowed that list down to three. In response to a reporter question as to whether the city is “willing to take on SPOG” in further contract negotiations, Durkan pushed back on characterizations of the relationship between the city and SPOG as oppositional, saying “Don’t create a conflict that may or may not exist.”

This afternoon, Mayor Durkan, the CPC, and Council Member Lorena Gonzalez all issued statements with their take on this morning’s hearing and Robart’s bench ruling.

Stay tuned for more next week, when we get to dissect Robart’s written order.