After Appointment of New SPD Monitor, Experts Reflect on the Past and Future of the Consent Decree

New Consent Decree Monitor Dr. Antonio Oftelie. Photo via Leadership for a Networked World.

By Paul Kiefer

Merrick Bobb, who served for seven years as the court-appointed monitor for reforms to the Seattle Police Department mandated by the Department of Justice in a 2012 agreement between the city and federal government known as a consent decree, quietly resigned from his position on August 31.

In a letter explaining his decision, Bobb expressed dismay that SPD’s responses to this summer’s protests left him wondering whether “lessons learned and techniques trained under the consent decree were lost, or, at least, set aside.” Looking beyond the department’s protest response, Bobb also pointed to SPD’s “‘bizarre and arcane’ discipline and accountability systems” (referring to the language of one of his team’s earlier reports on SPD) as another primary reason for the department to remain under federal oversight.

US District Judge James Robart appointed Dr. Antonio Oftelie, a fellow at Harvard University’s Kennedy School of Government, to replace Bobb as monitor. Robart appointed Monisha Harrell, the board chair of Equal Rights Washington and a (now outgoing) Community Police Commission commissioner, as deputy monitor. In a new order on Monday, Robart also appointed two associate monitors: Matthew Barge, a senior consultant at the Policing Project at the New York University School of Law, and Ronald Ward, a Seattle attorney who served as deputy monitor alongside Merrick Bobb.

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Oftelie is stepping into the monitor role at a time when the position demands a heavier hand than Bobb has provided since Robart ruled that the city was in compliance with the consent decree in 2018. After that ruling, Bobb said in an interview with KUOW’s Ross Reynolds on Thursday, he believed that his “job was done” as the monitor. “We’d brought the department to that point [of compliance].” But Bobb added that SPD’s protest response made it clear that “there needed to be a new monitor and new team to deal with new facts on the ground.” In that interview, Bobb did not mention that Robart ruled that the city had fallen partially out of compliance with the consent decree in May of last year because of accountability-related concerns.

Oftelie says that police accountability will be one of his priorities as monitor. In an email to the Seattle Times this week, Oftelie specifically said that his team’s focus will be on “SPD’s accountability and transparency structures”—the Office of Police Accountability (OPA), the Office of the Inspector General (OIG), and the CPC. But according to some local accountability experts, Oftelie’s proposal to reassess the city’s accountability structures will unnecessarily retrace the steps of longtime accountability advocates while real accountability reforms continue to languish.

Retired Judge Anne Levinson, a veteran accountability advocate who served as OPA auditor, a position that preceded the Inspector General role, says the key to Oftelie’s success will lay in pressuring the city to finally listen to the guidance of accountability advocates. “There’s an ongoing concern [among advocates] that reforms related to accountability, misconduct, discipline, disciplinary appeals, and that the monitoring team and the court didn’t sufficiently use their authority in the past,” Levinson said. “The feeling is that progress has been dragged out and out and out.”

In 2013, the city created the CPC, which began researching possible reforms to accountability in SPD. The following year, then-OPA auditor Levinson released a set of recommendations to improve SPD’s disciplinary procedures. In April 2014, both Levinson and the CPC released their recommendations, which included channeling disciplinary decisions through a single judicial body (the Public Safety Civil Service Commission) staffed by impartial third parties and opening disciplinary proceedings to the public.

After the protests in Ferguson, Missouri sparked by the killing of Michael Brown by a white police officer in August 2014, then-mayor Ed Murray finally voiced his support for the reforms without proposing any legislation to bring them to life. Instead, accountability advocates turned to the city council for support, leading to the city’s landmark 2017 accountability ordinance, a piece of legislation heavily informed by the recommendations from Levinson and the CPC three years earlier.

“There’s an ongoing concern [among advocates] that reforms related to accountability, misconduct, discipline, disciplinary appeals, and that the monitoring team and the court didn’t sufficiently use their authority in the past. The feeling is that progress has been dragged out and out and out.” —Former OPA Auditor Anne Levinson

Levinson says that during that process, Bobb largely avoided addressing accountability problems in SPD. The language of the consent decree itself only requires the existence of an OPA to hold SPD accountable. As a result, Bobb concluded that the city had met the accountability requirements of the consent decree by maintaining the OPA, and he did not press the issue of accountability further.

That approach sparked concerns among accountability advocates that the consent decree could become a barrier to police reform. “The consent decree is a floor and not a ceiling,” says Prachi Dave, the current CPC co-chair. “The consent decree is intended to be a floor when it comes to constitutional policing, but it shouldn’t be a constraint on what constitutional policing looks like in Seattle. ”

The 2017 ordinance, however, brought accountability to the attention of Judge Robart: Murray presented the ordinance to the court as a sign of the city’s progress, and Robart accepted it as a baseline, albeit not a gold standard, for an accountability system that would hold together all the components of the consent decree. When Robart ruled that Seattle had reached compliance with the consent decree in 2018—a decision informed largely by Bobb’s regular progress reports—he added the caveat that if the city’s then-ongoing contract negotiations with the Seattle Police Officers Guild were to undercut the progress made through the accountability ordinance, the city would risk falling back out of compliance. Meanwhile, Bobb began to “wind down” in his role as monitor, according to ACLU of Washington senior staff attorney Nancy Talner.

In 2019, after community advocates voiced their opposition to the 2018 SPOG contract’s conflicts with the accountability ordinance, Robart did rule that the city had fallen partially out of compliance with the consent decree. Robart also ordered City Attorney Pete Holmes to submit a proposal for how the city will return to compliance with the consent decree, setting the deadline for the proposal in July 2019. Though more than a year has passed since that deadline, Holmes has not yet submitted that proposal.

Instead, in May 2020, Holmes and the DOJ filed a motion in U.S. District Court to end monitoring of the department’s progress on the reforms mandated by the consent decree, which would have also ended most of Bobb’s responsibilities as monitor. In the motion, Holmes argued that the city “has achieved and sustained full and effective compliance” with the conditions of the consent decree and that “SPD is a transformed organization.” In the motion to largely end Bobb’s role as monitor, Holmes made a vague assurance that the city “intends to respond” to Robart’s order, but wrote that the city is currently “unable to fully address the accountability issues” Robart identified because of the COVID-19 pandemic. Meanwhile, Talner says, “there was only a slight increase in [monitor] activity, but not a lot.” Under fire from activists during the protests for Black lives earlier this summer, Durkan reversed course in June, announcing that the city would not seek to get out from under the consent decree.

In the wake of Bobb’s resignation, Levinson says, “the hope among advocates is that the new monitor will have a greater sense of urgency about accountability.” Even if he hadn’t specifically named it as one of his areas of focus, Levinson says that Seattle’s accountability shortfalls would be hard for Oftelie to overlook. “For instance,” she added, “all of the investigations stemming from this summer’s protests are happening under the [SPOG] contracts adopted in 2018 that the community said —and the court agreed—were problematic.”

And the 2017 ordinance will likely remain relevant to Oftelie’s work. Diane Narasaki, a former CPC co-chair, pointed to the ordinance’s reforms as a “better use” of Oftelie’s time than his expressed intent to review the city’s accountability bodies. “The Monitor should stress the critical importance of the City following through on its promises over the years to the community, and must successfully negotiate with the police unions in their upcoming contracts to enable the full implementation of the 2017 Accountability Ordinance backed by dozens of civil rights, civil liberties, and community organizations,” Narasaki said in an email.

But Narasaki doesn’t consider the 2017 ordinance to be the end point for reforms. “At the very least, the 2017 Accountability Ordinance reforms must be realized in the police union contracts, but there must also be action by the City to go beyond these to address the structural racism pervading our society and policing, such as shifting significant funding from the police to invest in community infrastructure and services upstream to prevent the downstream consequences which the police are inherently unsuitable to resolve,” she explained. “A key measure of achieving compliance with the consent decree will be what’s in the next police union contracts.”

Seattle Inspector General Lisa Judge doesn’t necessarily think that reviewing the existing accountability structures would be a bad use of Oftelie’s time, so long as that review doesn’t slow the reform process. Judge says she hopes that Oftelie will revisit the city’s accountability structures—including her office—with the goal of strengthening those bodies “so that the city has stronger mechanisms to have SPD implement changes to its disciplinary procedures and transparency.” Judge adds that this will require a close relationship between Oftelie and the city’s accountability experts—a relationship many of those experts say Bobb lacked.

Bobb’s distance from Seattle—he lives in Los Angeles—was one reason for his weak relationships with local accountability experts. Some of those experts are concerned that Oftelie also has no prior experience in Seattle: he was raised in Minneapolis and currently works at Harvard. But Robart’s appointment of Harrell to the new position of deputy monitor has given some local advocates hope. In a statement to The C is for Crank, the ACLU of Washington said that “the inclusion of a local community leader as Deputy Monitor… is a welcome change and we look forward to the expertise and experience that [Harrell] will bring to the position.”

Harrell hasn’t yet had time to determine her approach to her new position—the court only informed her of her appointment shortly before announcing it publicly—but she knows her ties to Seattle will be a strength. “I provide the local support and local knowledge,” she says. “[Oftelie] brings an academic perspective and knowledge of best practices around the world. I’ll be able to use my local knowledge to help translate, because not everything that works around the world will work in Seattle.”

As for whether the still-languishing accountability reforms will be at the top of her priorities list, Harrell says she intends to spend much of the coming month talking to “those who have been in the trenches” for police accountability in Seattle; she has worked with many of them, including Levinson, in the past. But she doesn’t plan to immediately become the standard-bearer for the six-year-old recommendations. “I’m approaching the first thirty days with fresh eyes,” she said. “I’m not trying to shortcut any part of this—it’s too important.”

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