Robart green-lights city’s plan to assess police accountability system (UPDATED)

This afternoon, Judge James Robart issued an order authorizing the City of Seattle to proceed with its proposal to assess its police accountability system and formulate a methodology to achieve compliance under the 2012 Consent Decree.

In his ruling last May, Robart ordered the city to formulate a methodology for assessing its current accountability regime and for how the city proposes to achieve compliance on police accountability. The city submitted its response in August, proposing to convene a panel of subject-matter experts that would assess the system with a focus on three important areas:

  • calculation of the 180-day timeline for disciplinary investigations;
  • lack of subpoena authority ofr the OPA and OIG;
  • the standard of review and quantum of proof in disciplinary appeals.

The city also proposed that the panel would survey other jurisdictions’ police accountability systems.

The Department of Justice offered no objections to the city’s proposal. The Community Police Commission (CPC), on the other hand, objected to the proposal, arguing that it was redundant with work that the CPC had already done in the formulation of the 2017 Police Accountability Ordinance, and that the survey of other jurisdictions was likely a pretense for arguing that the current accountability system is sufficient and not an honest attempt to gather new information and insights.

Robart begins today’s ruling by calling out the DOJ for its “largely unhelpful response” to his May order, in that the department repeated its earlier assertion that police accountability is outside the scope of the Consent Decree so it should simply defer to the city’s proposal. Robart reminded the DOJ that he had already ruled otherwise — that police accountability is implicitly tied to the Consent Decree’s goal of increasing public confidence in SPD — and noted that “the Government’s penchant for relitigating the issue is unhelpful to the court and the process of reform.”

As for the CPC’s objections, Robart largely rejected its assertion that the assessment as proposed is redundant with its previous work on the police accountability ordinance. While acknowledging “the CPC’s significant contributions over the life of the Consent Decree and the substantial reforms contained in the Police Accountability Ordinance,” and that the CPC is “highly invested” in it, he disagrees that the ordinance should be the starting point for any assessment, since “the reality is that many of the reforms in the Accountability Ordinance did not survive the City’s collective bargaining with its police unions.”  That sentence carries far more weight than it appears: Robart is tacitly acknowledging that the collective bargaining process is required under state law for certain topics and may not be set aside. He is once again refusing to state unequivocally that the requirements of constitutional policing trump police officers’ rights to collective bargaining. In fact, he reinforces the legal validity  and precedent of the collective bargaining process, reminding the parties that in his May order he was “not ruling that — to be in full and effective compliance — the City must return to the provisions of the Accountability Ordinance… as those provisions existed prior to collective bargaining.” Further, he notes that the assessment may find other methods to achieve compliance: “Full and effective compliance on accountability is not wedded to the Police Accountability Ordinance, and the court concludes that a methodical search for new ideas — as the City proposes — may further the work of reform.” Finally, he points out (as the city had in its brief) that the assessments of the city’s efforts to come into compliance in the ten areas defined by the Consent Decree we designed and conducted by national subject matter experts. For all of these reasons, Robart concluded, “the court does not find the CPC’s objections based on redundancy to be well-taken.”

But on the topic of the survey of other jurisdictions, Robart found common cause with the CPC, in its concern that the city was stealthily trying to build a case for a motion to reconsider his May ruling. In fact, he told the city explicitly that it may not do so:

The court has already determined that the City is out of compliance with the Consent Decree on accountability. (See generally 5/21/19 Order.) The City may not utilize its proposed nationwide survey as a stealth method of bringing an out-of-time motion for reconsideration of that ruling. If, however, the City intends to utilize the survey to formulate an appropriate compliance-related assessment process, develop new ideas or models related to accountability, and collect data that may be of assistance to the parties in collective bargaining, then the court believes that the exercise could be productive and further the cause of reform. The court is confident that the City will heed this warning, and thus, authorizes the City to implement its proposed methodology for assessing its present accountability regime.

Robart then moves on to one remaining issue: the role of the court-appointed police monitor with regard to police accountability issues. Robart reiterated his expectation that all of the consent decree issues other than accountability are on track to complete the two-year “Phase 2” sustainment period early next year and that he will terminate the Consent Decree as it applies to those areas at that time, but the role of the monitor is undefined for the remaining issue of accountability as it was never called out as an area of responsibility for monitoring. Apparently the monitor has submitted a proposal to the city and DOJ, but they rejected it on the belief that accountability is outside the scope of the consent decree. But Robart reiterated his view otherwise, and ordered the city and DOJ, in consultation with the Monitor, to submit a proposal on the monitor’s role in assessing compliance on accountability. Robart does note, however, that there is likely to be overlap, if not conflict, with the responsibilities of the Office of Police Accountability (OPA) and the Office of the Inspector General for Public Safety (OIG); he directed the parties to “consider how to best utilize these resources” in formulating their proposal.

To summarize what happens now:

  • Robart authorized the city to proceed with its proposed assessment, which it promised to complete by November 29th. He noted that he didn’t actually ask the city to seek his approval, and as such he didn’t explicitly “approve” it.
  • Robart ordered the city to submit the assessment results, AND its plan for achieving compliance on accountability, by November 29th. The DOJ and the CPC will then have until December 13th to respond.
  • The DOJ and the city must also submit their proposal for the role of the monitor in assessing compliance with accountability, also by November 29th. The CPC may (optionally) file a response by December 13th.

A spokesperson for the Mayor’s office confirmed that the city has not actually begun the assessment yet, as it was waiting for the judge’s ruling. That means it will need to rush to get it done and write the plan for achieving compliance in the next six weeks, however the spokesperson said, “The City will discuss the Court’s order with 21CP, DOJ, and the Monitor in the coming days to ensure a thorough assessment and plan for ensuring compliance can occur November 29.”  The Mayor’s spokesperson also suggested that the assessment results, the plan to achieve compliance, and the proposal for the monitor’s role would likely be submitted together as a joint filing by the city and the DOJ since the issues are intertwined. However, that means a lot of consultation and joint work in the coming weeks.

As to the warning from Judge Robart not to use the assessment survey as a pretense for a motion to reconsider, the Mayor’s spokesperson confirmed that the city had no intent to do that, and asserted that it was clear in its earlier brief that its primary intent was to use the information collected to inform the next round of collective bargaining with the two police unions (SPOG and SPMA). In particular, the city is looking for information on how other jurisdictions handle arbitration as an appeals process for disciplinary measures. The city expects to return to the bargaining table in the spring.

UPDATE: the CPC released the following statement in response to the ruling:

While the Community Police Commission is just beginning to review the Court’s order, the following aspects are noteworthy:

1. The Court made very clear that the accountability system is within the scope of the Consent Decree, not outside of the Consent Decree, as the City has at times argued.
2. The accountability system concerns noted by the Court – the calculation of the 180-day timeline for disciplinary investigations; lack of full subpoena authority for OPA and the OIG; the standard of review and quantum of proof in disciplinary appeals, and the features of arbitration that affect public confidence, such as degree of transparency and the selection process for arbitrators – are the same issues with the current system about which the CPC has raised concerns.
3. The Court recognized that many of the reforms in the accountability law were not retained in the contracts the City negotiated. Some will be required for the Court to find the City in compliance; others are additional reforms adopted by the City and committed to the community, and thus should be followed through on, whether or not they are needed for the Court.
4. The Court agreed with the CPC that equivalency to other cities is not a metric to determine compliance with the Consent Decree and that Seattle should not aspire to the lowest common denominator.
5. The Court reiterated that it ruled last May that the City is out of compliance with the Consent Decree on accountability, and that the City may not utilize its proposed nationwide survey “as a stealth method of bringing an out-of-time motion for reconsideration of that ruling.”
6. The Court also reiterated that if the City “intends to use the nationwide survey to justify its current accountability system, then the exercise will be a failure, reform will be delayed, and full and effective compliance with the Consent Decree will recede further into the future.”
7. The Court agreed with the CPC that the City did not, and must now, respond to the Court’s order to submit a “methodology… for how the City proposes to achieve compliance” with the Consent Decree when it comes to accountability. The Court has now ordered them to submit that plan by November 29. 
8. The City and the DOJ opposed the Court Monitor’s proposal that the Monitor continue to provide oversight on accountability for the new 2-year period. The Court expressly disagreed, and additionally supports greater involvement of civilian oversight by the Office of Police Accountability and the Office of Inspector General for Public Safety.

The CPC remains committed to working with the Mayor, City Council, and other partners to help the City create a plan to bring the City’s police accountability system back into compliance with the Consent Decree, a plan that meets community expectations and builds trust and confidence in the system. With the deadline quickly approaching, we hope those conversations will begin promptly.

–  CPC Co-chairs Rev. Harriett Walden, Isaac Ruiz, Emma Catague

Here’s a joint statement from Mayor Jenny Durkan and City Attorney Pete Holmes:

“As the original 2012 signatories to the Consent Decree, we are committed to creating meaningful reform, community-based policing, and durable accountability. We are grateful the Court again acknowledged the significant strides SPD has made. 

“We’re pleased the Court has authorized the City to move ahead with its methodology for the accountability assessment that will focus on the four areas identified by the Court. We are grateful that the Court agrees that this process could help further reform. These national experts will help the parties to not only address the Court’s concerns, but further strengthen a culture of continuous reform and improvement, inform the parties of potential other best practices, and inform collective bargaining. 

“Through years of dedicated work by the community and our officers at the Seattle Police Department, SPD is now a national leader as it relates to the use of force, crisis intervention, and de-escalation. As noted by Judge Robart, the City is on track to complete its work under the sustainment plan, be discharged from those requirements in a few months, and enter a new era of policing for SPD and the community – an era that will continue our commitment to lasting reform. 

“The City will continue to work with the DOJ, the Monitor, OPA, OIG, CPC and other stakeholders to chart a path forward to address the four issues of concern to the Court.”


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