by Andrew Engelson
In a status hearing in US District Court on Wednesday about the consent decree between the US Department of Justice and the Seattle Police Department, Judge James Robart expressed frustration that his efforts to pressure SPD to adopt tougher accountability and discipline policies for misconduct were like “rolling a rock uphill.” But he hinted that, if the city council passes legislation addressing SPD’s responses to large protests, Robart may be willing to finally terminate the decree after twelve years.
Seattle has been under federal oversight since 2012, after a Department of Justice investigation found SPD had engaged in biased policing and excessive use of force and that it lacked meaningful oversight and accountability mechanisms to address misconduct. Last year, Robart ended most of the consent decree, with the exception of SPD’s crowd control policies and its accountability and discipline system.
The hearing centered mostly on those two items, as Robart grilled assistant city attorney Kerala Cowart about SPD’s progress–or lack of it–on those remaining issues.
Robart questioned Cowart about crowd management, which has played a key role in the consent decree hearings after the 2020 Black Lives Matter protests, saying, “You acknowledge in your briefing that the termination of the consent decree will not take place until we have a crowd management policy.”
Cowart replied that the “process has not proceeded as quickly as we would like,” but that the mayor’s office will be submitting legislation to the city council in the next few weeks outlining a new crowd control policy.
The legislation, according to an email that the mayor’s office sent to the city council on Wednesday, will prohibit the use of crowd control tools unless “unless specific facts and circumstances are occurring or about to occur that create an imminent risk of physical injury to any person or significant property damage.” It also prioritizes de-escalation, and makes SPD policy consistent with recently passed state legislation.
A DOJ attorney said he was “pleased to see a proposal has been sent to the city council. But we need to get a policy submitted to the court and to the monitor.”
Robart then addressed the second, thorniest remaining issue: accountability and discipline. The judge lamented his own “inability to affect the collective bargaining agreement,” noting that while the mayor and city council approved a retroactive police contract, they largely left new accountability measures off the table.
Cowart pointed to small concessions the city got in that contract, including modification of the 180-day deadline for OPA investigations and a request that outside arbitrators, who hear discipline appeals, “give deference” to the police chief’s decisions about whether to fire officers or not.
Robart, however, pointed to recent cases such as a former SPD officer seeking $600,000 in back pay after an arbitrator said she had been wrongly fired in 2017 after shooting at a fleeing stolen vehicle.
Toward the end of the hearing, Robart, seeming exasperated, urged the city to “get it done” on crowd control policies “and then get [officers] trained.”
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Joel Merkel, the only current co-chair of the Community Police Commission, said “the judge seemed to accept that he may have some limitations as to what he can achieve, and he wasn’t interested in leaving the consent decree open just to ensure better outcomes in collective bargaining.”
The CPC, which filed an amicus brief prior to today’s hearing, reminded Robart in that document that he found the city out of compliance in 2019 because of inadequate accountability measures, and noted that the new SPOG contract still requires an “elevated standard of review …for termination cases where the alleged offense is stigmatizing to a law enforcement officer,” making it harder to prove misconduct in cases where discipline might make it harder for an officer to get another job.
Lisa Daugaard, co-director of Purpose Dignity Action (formerly: the Public Defender Association) said, “It’s time for the consent decree to end. It’s time for the public to be able to turn directly to Seattle officials for responsibility with respect to all these matters.”
Daugaard said the decree has mostly been a distraction from reform, though she did praise it for pushing SPD to more accurately track data on bias in policing. “It has not been helpful to have this theory that there was someone else who was going to intercede,” she said. Daugaard said the council and mayor should negotiate a return to the reforms passed by the city council in 2017, and largely abandoned in the 2018 SPOG contract. “We should return to that framework, and the city should negotiate to accomplish it.”
After the hearing, deputy mayor Tim Burgess, who oversees public safety for the mayor’s office, took a few questions. When asked what accountability improvements the mayor’s office would like to see, Burgess said the process of investigating misconduct through the city’s Office of Police Accountability is “working exceptionally well,” but that he would like to see the state legislature pass a law making it harder for arbitrators to reverse the police chief’s disciplinary decisions.
“We are not going to achieve reform of arbitration through collective bargaining,” Burgess said..
Burgess also said there are currently 42 applicants for the chief of police position and that the mayor intends to make a decision by December. “The mayor is going to appoint a citizens committee or group, or whatever we’re going to call it, that will be involved with the semifinalists,” he said.
When asked if former chief Adrian Diaz, who is still on SPD payroll at $380,000 a year, will remain on staff after the new chief is hired, Burgess said, “I don’t think I want to talk about that.”
