Appeals court upholds SPD termination of Shepherd (updated)

This morning, the State Court of Appeals affirmed a lower court’s ruling that the Seattle Police Department was acting appropriately when it terminated the employment of Officer Adley Shepherd for excessive use of force.

A quick review of this case’s history:  In June 2014 Shepherd responded to a domestic disturbance call. He placed an intoxicated, belligerent woman under arrest and handcuffed her. As he was attempting to place her in the back seat of his car, she leaned back and kicked him in the face. He stumbled back, then two seconds later leaned into the car and punched her in the face, fracturing her orbital socket. The incident was investigated, Shepherd was found to have used excessive force, and then-Chief O’Toole fired him as discipline for the offense.

SPOG, the, police officers’ union representing Shepherd, appealed the firing to the Discipline Review Board, a 3-person arbitration panel. In November 2018 the panel ruled that Shepherd had indeed used excessive force, but found that termination was excessive given the circumstances. It ordered the reinstatement of Officer Shepherd with a 15-day suspension, though it allowed SPD to assign him to duties other than patrol.

The city appealed the arbitration ruling to King County Superior Court, where a judge overturned the arbitration panel and allowed for Shepherd’s termination. SPOG appealed that decision to the Court of Appeals — which ruled today.

Where arbitration is called for in a labor contract, the arbitrators’ decision may only be overturned if it violates an “explicit, well-defined and dominant public policy.” In this case, the 3-judge appeals court agreed unanimously with the King County judge that the decision did in fact meet that standard with regard to the policy prohibiting excessive force. And it did so with a blunt assessment of the shortcomings of the arbitration panel’s ruling:

The DRB’s decision reinstating Shepherd is so lenient it violates the explicit, well-defined, and dominant public policy against the excessive use of force in policing. Indeed, the DRB’s decision sends a message to officers that a violation of a clear and specific policy is not that serious if the officer is dealing with a difficult subject, losing patience, or passionate in believing that he or she did nothing wrong—however mistaken that belief may be. Such a message cannot be squared with the public policy against the excessive use of force in policing, which we hold imposes on the City an affirmative duty to sufficiently discipline officers. Thus, the superior court did not err when it vacated the DRB’s decision reinstating Shepherd.

SPOG could appeal this ruling further up to the state Supreme Court, but at this point the likelihood that the Court would take the case, let alone overturn the appeals court, is very low.

This particular case has had ramifications well beyond Officer Shepherd.  It was a case cited by U.S. District Court Judge James Robart in finding the City of Seattle out of compliance with the 2012 consent decree with regard to police accountability, despite the city’s assurance that the system, including court appeals, was working correctly (the DOJ agreed) and it was confident that it would ultimately prevail (its seems that it was right).

The case has also been an impetus for ongoing deliberations in Olympia during the current legislative session over police reform, and in particular the role that arbitration should play in the disciplinary process. One option that has been on the table is to create one uniform, statewide arbitration system for law enforcement disciplinary appeals as a form of reform; another is to scrap altogether the use of arbitration panels as an appeals path for disciplinary decisions.

Today’s decision probably won’t materially affect Judge Robart’s view on SPD’s compliance with the consent decree, not will it change the outcome of the current legislative session — though ironically if the appeals court had sided with the arbitrator it might have generated enough outrage to move things forward. But it does remind us that arbitration, a right guaranteed to police officers under state law, is a far from perfect process that is still overdue for reform.

UPDATE: SPOG has indicated that it intends to appeal the decision to the state Supreme Court.

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