Judge vacates arbitrator’s ruling in Adley Shepherd case (UPDATED)

In a case that has taken on broad significance for police accountability in Seattle, this afternoon King County Superior Court John McHale vacated an arbitrator’s decision last year to overturn the termination of SPD Officer Adley Shepherd for punching a handcuffed suspect in the face while she was in the back seat of a patrol car.

Shepherd’s discipline case has dragged out for years. After an investigation of the incident, which was captured on video, then-Chief O’Toole terminated Shepherd for excessive use of force on a restrained subject. Shepherd appealed the ruling to an arbitration board, and last fall the arbitrator overturned the termination.

Following the arbitrator’s decision, U.S. District Court James Robart, who oversees the Consent Decree between the City of Seattle and the Department of Justice over biased policing, issued an “order to show cause” why he shouldn’t find the city out of compliance with the consent decree, largely over his concerns with what the outcome of the Shepherd case said about the arbitration process — and the police accountability process in general. After months of briefs in which the city argued that the arbitrator’s ruling was a one-off aberration that it was appealing and expected to get overturned, in May Robart ruled that the city is indeed partly out of compliance, and sent the city off to re-evaluate its police accountability process.

Ironically, yesterday the city filed its proposed evaluation process for Robart’s review.

In today’s ruling Judge McHale found that the arbitrator’s decision was so lenient that it violated the city’s well-established public policy against excessive force in policing, saying that it “serves to condone retaliatory action in the form of excessive force in violation of the Fourth Amendment to the U.S. Constitution.” He goes on:

“Allowing this imposed discipline to stand, which includes reinstatement of Officer Shepherd, sends a message to law enforcement officers and to the public that the excessive use of force on handcuffed or restrained persons is allowed in situations where officer patience is stretched thin or when an officer feels stinging pain inflicted by a handcuffed suspect who is no longer threatening immediate harm or when there are other options for control available.”

It’s worth reading McHale’s full order.

Following today’s ruling, Mayor Jenny Durkan and City Attorney Pete Holmes issued a statement:

“We knew the arbitrator’s decision to reinstate Officer Shepherd was wrong from the outset, and Chief Carmen Best was right to not reinstate the officer immediately. 
“We understood that Judge Robart had deep concerns about this case. We shared those concerns about how this incident deeply impacted public confidence, which is why we pursued the appeal. 

“Judge McHale rightly recognized the arbitrator’s order for Mr. Shepherd’s reinstatement violated the public policy against excessive use of force in policing. SPD should not be forced to employ an officer whose view of reasonable and necessary force is so immutable and so contrary to SPD’s policies and values. We strongly agree with the Judge when he noted that SPD’s policy prohibiting excessive force was ‘explicit, dominant, and well defined.’ This was the right decision.”

UPDATE: SPOG has released a statement, saying that it intends to appeal Judge McHale’s ruling:

Seattle Police Officers Guild members are some of the best-trained and professional Pubic Safety servants in the nation. We are willing to put our lives on the line to dutifully protect our community each and every day.

This decision impacts all labor and is an affront to Binding Arbitration.

Our hearts go out to the Shepherd family who have been dragged through this process for nearly five years. SPOG will be immediately appealing this decision as it will negatively impact all public sector union contracts.

The case law is clear on the standard for overturning an arbitrator’s ruling (emphasis mine):

This case concerns an arbitration award arising out of a collective bargaining agreement. Courts do not typically review such arbitration awards because extensive judicial review would “weaken the value of bargained for, binding arbitration and could damage the freedom of contract.” Kitsap County Deputy Sheriff’s Guild v. Kitsap County, 167 Wash.2d 428, 435, 219 P.3d 675 (2009). Courts will, however, vacate an arbitration award in the rare situation that it violates an explicit, well-defined, and dominant public policy, such as this state’s public policy against racial harassment in the workplace.

In his ruling, McHale noted this standard and explicitly stated his finding that the arbitrator’s ruling “violates the explicit, dominant and well-defined public policy against the use of excessive force in policing.”