This morning the Community Police Commission filed its own brief with the U.S. District Court, in response to last Thursday’s submission of the city’s proposal to evaluate its police accountability system and come back into compliance with the Consent Decree.
As expected, the CPC railed against the city’s proposal. It maintains its position as communicated in earlier briefs and in letters over the summer that Judge Robart agreed with it, it knows what needs to be fixed, and the city should simply do what it says.
A key argument that the CPC has repeatedly asserted is that it is not necessary for the city to do a new assessment of its police accountability system, because the CPC already did that work over several years and its findings are written into the 2017 police accountability legislation. However, an assessment is precisely what Judge Robart ordered the city and the DOJ to do:
“Accordingly, the court ORDERS the City and the United States, with the assistance of the Monitor and the CPC, to formulate a methodology (1) for assessing the present accountability regime, and (2) for how the City proposes to achieve compliance.”
Despite this, the CPC in its brief re-interprets the judge’s order to fit its narrative (emphasis mine):
“On May 21, 2019, the Court published its order finding the City out of compliance with the Consent Decree regarding accountability. Dkt. # 562. Agreeing with the CPC, the Court explained that its conclusion was “due to the changes in the Accountability Ordinance that occurred following implementation of SPOG’s CBA and the City’s reversion to an arbitration system . . . from the old, inadequate accountability regime.” Id. at 14. The Court ordered the City and DOJ, in collaboration with the Monitor and the CPC, to report back to the Court by July 15 with a plan to remedy those deficiencies and show the Court how the City would come back into compliance…”
“The Court did not order the City to conduct a redundant assessment; the Court ordered the City to provide a viable plan on how and when to remedy those previously-identified deficiencies.“
There is also a fair amount of hair-splitting between the city and the CPC as each tries to spin comments to their purposes. After Robart’s May ruling, the Mayor’s Office issued the following statement:
“I am grateful that Judge Robart again acknowledges the significant reforms that SPD has accomplished in the seven years that the Consent Decree has been in place, and that the City remains in full and effective compliance in every one of the areas required by the Consent Decree and set forth by the sustainment order. We agree with the Court that we remain on track to meet all aspects of this order by January 2020 and are fully committed to working with DOJ, the Monitor and the community to ensure we do so.”
“The Judge acknowledges that our police officers have done everything that the Court and the Consent Decree have required that we are now a national model on use of force, de-escalation and dealing with individuals in crisis, and that the growth in public confidence is ‘remarkable.’ Both Chief Best and I know that trust is earned every day and we will continuously work to improve and build trust with the community.
“It is notable that the judge did not strike down the Collective Bargaining Agreement, or any specific provision in the CBA. Together with the Department of Justice, we are evaluating the Court’s order regarding the accountability regime and its relationship to the Consent Decree. But regardless of the next legal steps, we have made clear that we will continuously assess and improve as a Department. The Judge has ordered an assessment of the present accountability regime. Given the reforms and the changes made to the entire accountability system since the Consent Decree was entered, an assessment of the accountability regime, how it compares to other models across the nation, functions as a system and its impact on officers, policing and community confidence can only benefit our city.”
Robart’s May ruling said that the city was still in compliance with the ten areas of assessment required under the Consent Decree. In fact, in his ruling from the bench that preceded the written ruling, he went to great lengths to praise SPD’s work in coming into compliance on the ten areas of assessment. But his concerns around police accountability — which is not one of the ten assessment areas — represented a new issue that impacted the city’s ability to effectively meet the general requirements of constitutional policing under the Consent Decree, and thus it was separate but valid grounds for Judge Robart to find the city out of compliance. Further, he effectively split the city’s ongoing compliance work in two: the two-year clock on sustaining compliance in the ten assessment areas could continue and potentially wrap up in January 2020, while separately the city needed to address the police accountability issues, come back into compliance on that, and then sustain compliance for two year to fully get out from under the Consent Decree.
In that context, the most sensible interpretation of Durkan’s statement above is that she was highlighting that the city was still in compliance for the ten required assessment areas while acknowledging the order to do a new assessment on police accountability. However, the CPC has chosen instead to interpret it as a refusal by the Mayor to acknowledge the problems with the accountability system — and the CPC does so again in this morning’s brief:
“In response, the Mayor’s Office issued a statement publicly contradicting the Court by asserting that “the City remains in full and effective compliance in every one of the areas required by the Consent Decree and set forth by the sustainment order.”
The CPC also criticizes the city’s proposal for bringing in outside consultants, whose “apparent mandate would be to conduct an unidentified analysis, with an open-ended schedule of what other cities do — and without any commitment to remedy the identified deficiencies in Seattle.” As I reported the details last Thursday, this is not an accurate description of the city’s proposal as submitted. The proposal does indeed study other cities’ police accountability systems, with a list of the issues to analyze, but it also does an in-depth analysis on the four areas of concern that Robart identified in Seattle’s current system. and it proposed to finish the evaluation in November 2019. The CPC more correctly identifies that the city’s proposal is less clear on the exact next steps after the report is delivered, though the proposal suggests that issues subject to collective bargaining with SPOG would be addressed in the next round of contract negotiations starting in March 2020.
The CPC also tries to argue that the state-granted right to arbitration is a non-issue:
The City’s attempt to hide behind an unfair labor practice claim is a strawman. The City passed a law requiring it to implement these reforms as quickly as possible. SMC 3.29.510(A). Expressly stating that the City will no longer tolerate practices that have been identified as contrary to a fair and effective accountability system is not in conflict with good faith bargaining. The City can bargain in good faith and also guarantee constitutional policing, and insist on provisions in the CBA that are necessary for constitutional policing.
This argument fails for three reasons:
- The city law (i.e. the police accountability ordinance) cited also says, ” Provisions of the ordinance introduced as Council Bill 118969 subject to the Public Employees’ Collective Bargaining Act, chapter 41.56 RCW, shall not be effective until the City completes its collective bargaining obligations.”
- Even if the city law didn’t say that, the city can’t pass laws that rewrite state laws, so the state mandate for public safety officers’ right to arbitration still stands.
- As I’ve pointed out before, Judge Robart didn’t take a clear stand as to whether arbitration is inconsistent with constitutional policing, and as such, the city has no legal grounds to argue unilaterally for the removal of arbitration.
In addition, in this morning’s filing the CPC addresses a separate judge’s ruling last Friday vacating the arbitrator’s reinstatement of Officer Adley Shepherd, a case that served as the impetus for Judge Robart’s questioning of the police accountability system. Amusing but perhaps not surprisingly, the CPC reaches the opposite conclusion than the city does: while the city said that the overturning shows that the arbitrator’s ruling was a one-off aberration and in the end the system worked, the CPC argues:
That the City had to resort to such extraordinary measures to vacate this ruling—and that a King County judge has concluded that the ruling contravened “public policy against the use of excessive force”—underscores the importance of fixing the attributes of the accountability system that led to the ruling in the first place. Underscoring what is at stake, SPOG’s statement called the King County judge’s decision “an affront to Binding Arbitration.” The reversal shows why this Court and the CPC were correct to home in on the Adley Shepherd case as emblematic for how the City was no longer in compliance with the Consent Decree.
As much as the CPC would like to have the last word, in the end that privilege is Judge Robart’s. There is plenty of precedent for Robart putting aside the CPC’s comments and giving the City and the DOJ what they want, especially when those two parties agree as they do here. And even on this issue where he has sided with the CPC, he did so on narrower grounds and disregarded many of their complaints. It’s hard to predict how he will rule (or whether he will ask for a hearing to discuss the matter further before ruling), but it’s likely that he will proceed quickly.