By Paul Kiefer

For the first time since the pandemic began more than a year ago, representatives from the US Department of Justice, Seattle City Attorney Pete Holmes, and other police oversight figures gathered for a status update on Seattle’s consent decree—a nearly decade-old agreement empowering the DOJ to oversee police reform in Seattle.

Though the city has spent years re-working Seattle Police Department policies and training to satisfy several of the court’s key expectations including reductions in the use of deadly force by police officers, Seattle’s progress slipped in the past three years—in part because of a widely-criticized 2018 Seattle Police Officers’ Guild (SPOG) that undercut landmark improvements to the city’s police oversight system. That reversal on reforms, along with the SPD’s heavy-handed response to last Summer’s Black Lives Matter protests, raises the prospect that Seattle will remain under the consent decree for much longer than expected.

Federal District Court Judge James Robart, who has overseen the consent decree since its conception in 2012, is grappling with two key questions as he tries to determine the path forward: First, whether the city and police department has successfully re-implemented police oversight reforms that the (SPOG) contract wiped out; and second, whether SPD’s response to massive citywide protests in 2020 will set back the city’s progress towards ending the consent decree.

Tuesday’s hearing at the US District Courthouse in downtown Seattle did not provide Robart with clear answers on either front. While making a case that the city has made progress towards meeting the court’s demands, City Attorney Pete Holmes pointed to some notable accountability victories in the past three years. Unfortunately, he offered no promises that the upcoming SPOG contract negotiations won’t upend the city’s commitment to accountability. Meanwhile, Dr. Antonio Oftelie, the court-appointed consent decree monitor who acts as Robart’s eyes and ears on police oversight, told the judge that his team is still reviewing last summer’s SPD response to protests; they won’t decide whether SPD’s actions during the Black Lives Matter protests put the city out of alignment with the consent decree until the end of 2021, he said.

The hearing came at a critical point for the future of the consent decree. In its tenth year, a growing number of community activists argue that the consent decree has become an obstacle to efforts to downsize SPD and invest in alternatives to traditional policing. But an array of unknown variables—including the next contract with SPOG, which the city will likely begin negotiating in the next six months—raise the possibility that the consent decree could end up shaping Seattle’s police reform efforts for years to come. “This was supposed to be a five-year gig,” Judge Robart quipped; instead, come January, Seattle will inaugurate its fifth mayor since the consent decree began.

During Tuesday’s hearing, Robart took time to criticize the Community Police Commission (CPC), a civilian group that acts as a quasi-think tank on police accountability, for filing a request on July 27 to direct Oftelie’s monitoring team to take a more active role in SPD accountability, including in negotiations with police unions. Edgar Sargent, an attorney representing the CPC, told Robart that union negotiations are really just “a black box,” and suggested the monitoring team should be privy to union contract negotiations and provide progress updates directly to the court.

Robart pushed back against Sargent’s suggestions. “I think you fundamentally misunderstand my powers and the role of the consent decree,” he said. Though Seattle’s won’t be in compliance with the consent decree until the city addresses gaps in its accountability system, Robart said negotiations with police unions are far outside his jurisdiction. “My role is to tell you when you don’t get things right,” he said, “not how to do things.”

“It’s not my intention to come down hard on the CPC,” Robart added, “but given some of the turmoil that’s gone on in that organization, they periodically reinvent themselves and start trying to exceed what’s in their grasp.” The CPC has struggled with high turnover for years, both within its staff and its appointed membership.

Robart’s response to the CPC highlighted a point of tension in the path towards ending the consent decree. While Robart himself ruled in May 2019 that the city had fallen partially out of compliance with the consent decree by allowing a union contract to subvert years of work on accountability reforms, his remarks on Tuesday suggested he doesn’t believe the court should intervene to ensure the city enshrines those reforms in the next contracts with police unions.

The hearing also gave the DOJ and the monitoring team a chance to talk publicly about the consent decree’s possible role in efforts to “re-imagine” public safety and policing. “The consent decree is not intended to have a monopoly on reform or to be a permanent fixture of the city’s reform efforts,” assistant US Attorney Christina Fogg told the court.

But the city will need to launch new alternatives to policing without cutting deeper into SPD’s budget if it wants to avoid prolonging the consent decree, Oftelie said. “Much of the training, technology, and review systems implemented under the consent decree cannot be sustained without necessary budget and personnel,” he said; in the first half of 2021 alone, SPD lost 100 officers and only hired 38. “SPD is at an inflection point,” he said, “and the actions of the city will either tip the department into a deeper crisis or lead the department to a future that upholds the principles of constitutional policing.”

Ultimately, during his closing remarks, Robart said the future of the consent decree may hinge on the impending changes in city leadership. “Significant decisions have been postponed” until the inauguration of the next mayor, he said—referring to the upcoming SPOG negotiations, as well as hiring a new, permanent police chief. The next mayor and city council,  “need to be constructive, not destructive” in their approach to managing SPD, he concluded. No matter who takes office in January, Robart’s position is clear: the consent decree will last as long as it takes for SPD to live up to the city’s promises a decade ago.