Tag: Judge James Robart

Courts, Police

City Asks Judge to End Consent Decree; Outstanding Issues Include Protest Response and Accountability

By Erica C. Barnett

The city of Seattle and officials from the US Department of Justice asked US District Judge James Robart to release the Seattle Police Department from federal oversight under a 2012 agreement known as the consent decree yesterday, asking Robart to find SPD in “substantial compliance” with the consent decree with the exception of two areas—crowd control and accountability—that the city says will finish addressing this year.

“After more than a decade of cooperation, the United States and the City of Seattle… agree that the Seattle Police Department (SPD) has implemented far­-reaching reforms and achieved remarkable progress through the hard work and dedication of SPD officers and civilian staff at all levels of the organization and from extensive contributions by community members and leaders throughout Seattle,” the draft agreement says. Specifically, the motion cites improvements SPD has made to its policies on use of force, investigative (“Terry”) stops, bias-free policing, and supervision of officers.

The city has been under federal oversight since 2012, after a 2011 DOJ investigation found police had engaged in unconstitutional policing practices, including bias and excessive use of force, and that it lacked meaningful oversight and accountability mechanisms to address unconstitutional behavior by officers.

Since then, Judge Robart has repeatedly declined to rule that the city has complied with terms requiring the department to address the problems outlined in the consent decree, citing incidents of excessive force and the city’s failure to implement an effective accountability system.

In 2019, Robart ruled the city out of compliance with the consent decree after the council adopted, and then-mayor Jenny Durkan approved, a contract with the city’s main police union, the Seattle Police Officers Guild (SPOG), that conflicted with historic police accountability legislation the council adopted the previous year.

And then, in 2020, police responded to protests against police bias and brutality by using force against protesters and tear-gassing Capitol Hill, prompting more than 19,000 complaints against the department.

The risk of a victory lap is obvious: The next time SPD uses force inappropriately or fails to be transparent about potential officer misconduct (as it has, most recently, with the January death of pedestrian Jaahnavi Kandula, who was struck by patrol officer Kevin Dave), the department could find itself back in Judge Robart’s crosshairs.

Although the agreement notes that the end of the consent decree will not end the department’s commitment to “continuous improvement” and ongoing reform, separate memos and statements from city officials make yesterday’s proposed agreement sound like a conclusive vote of confidence in SPD’s commitment to bias-free policing, accountability, transparency, and reasonable use of force going forward.

For example, the city’s official memo supporting the agreement, signed by City Attorney Ann Davison, calls SPD “dramatically transformed”—a department whose use of force “now presents a night-and-day contrast to the practices found by DOJ in 2011.” SPD’s dramatic use of force against people protesting against police violence in 2020 represented “one, temporary lapse” in the department’s reduced use of force in general, the memo says, and overall, “SPD’s hard work over the past decade has improved outcomes for the people of Seattle.”

The risk of a victory lap is obvious: The next time SPD uses force inappropriately or fails to be transparent about potential officer misconduct (as it has, most recently, with the January death of pedestrian Jaahnavi Kandula, who was struck by patrol officer Kevin Dave), the department could find itself back in Judge Robart’s crosshairs. Robart has demonstrated repeatedly that he’s willing to withhold a finding of full compliance and send SPD back to square one in the past, most recently after the 2020 protests, so overconfidence is probably ill-advised.

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Many of the memos and statements supporting the new agreement, including a declaration by the city’s labor negotiator, Danielle Malcolm, explicitly mention the ongoing contract negotiations between the city and SPOG, highlighting the significant changes SPOG’s sister organization, the Seattle Police Management Association, accepted as part of their new contract in 2022. Those reforms included a higher burden of proof for arbitrators to overturn misconduct decisions; a change in policy that makes it harder for arbitrators to overturn the police chief’s disciplinary decisions, such as firing an officer for misconduct; and improved transparency into the arbitration process.

The implication is that any contract the city signs with SPOG will need to include similar reforms. However, the proof will lie in the contract itself; again, the city council, which included now-Mayor Bruce Harrell, adopted reforms in 2017, then immediately abandoned many of them in the SPOG contract it signed the following year.

The proposed short-term agreement acknowledges the police department still needs to make progress on “ensuring sustainable accountability and improving policy and practices for using force in crowd settings,” and commits SPD to adopting a revised crowd management policy and “alternative reporting and review process for force used in crowd settings”; in addition, the city will hire a consultant to make recommendations about the accountability system.

Many of the memos and statements supporting the new agreement, including a declaration by the city’s labor negotiator, Danielle Malcolm, explicitly mention the ongoing contract negotiations between the city and SPOG, highlighting the significant changes SPOG’s sister organization, the Seattle Police Management Association, accepted as part of their new contract in 2022.

According to a statement by SPD COO Brian Maxey, the changes to crowed management will include things like “meeting with event organizers ahead of a protest, maintaining a low-profile (less visible police presence) when feasible, and using social media to communicate information to protestors in real time.” Maxey also cites new officer trainings, including Before the Badge and a system called Outward Mindset, which was developed in Utah by the LDS-affiliated Arbinger Institute.

In a statement, Seattle City Councilmember and public safety committee chair Lisa Herbold said, “When I share the data that demonstrates SPD’s reduced rates of force use, I often hear concerns about growing racial disparities. I appreciate SPD’s commitment in the Agreement to identify, study, and work towards ‘eliminating policies and practices that have an unwarranted disparate impact on certain protected classes’ and ongoing work to ‘develop a plan that details the technologies, policies, and practices that it will seek to employ to reduce disparities in policing.'”

Critics of the consent decree have argued that it has, paradoxically, prevented the city from adopting reforms because substantial changes to the way the department functions, such as funding cuts or proposals to replace some police with civilians, would require approval by the federal monitor.

Once the consent decree is lifted in its entirety, which could happen later this year, the city’s Office of the Inspector General (established during the consent decree) will take over the bulk of the responsibility of ensuring SPD is complying with its commitments to reform—the so-called pillars of the consent decree.

This work could include providing more transparency into the work of the Force Review Board, which reviews serious uses of force, and expanding the scope of its investigations; doing a deeper dive into potential bias during stops and detentions; and making policy recommendations. The agreement notes that Harrell’s budget included funding for three new staffers at OIG—positions that will become permanent after the consent decree is lifted.

City Council, Courts, Police

Council Reviews New Version of “Less-Lethal” Weapons Ban
Seattle Police Officers fire tear gas at demonstrators on Capitol Hill in June 2020 (via Chase Burns on Twitter)

By Paul Kiefer

Seattle City Council member Lisa Herbold introduced the latest version of legislation intended to restrict the Seattle Police Department’s use of so-called ‘less-lethal weapons’ against demonstrators during a public safety committee meeting on Tuesday, more than a year after the council first began its efforts to limit SPD’s crowd control arsenal. The proposal would restrict the use of tear gas, pepper-ball launchers and pepper spray by SPD officers responding to protests and outright ban five other ‘less-lethal’ weapons, including blast balls.

If passed, the proposed legislation would replace an ordinance the council passed in June 2020, which SPD never implemented, that would have prohibited police officers from using tear gas, pepper spray, blast balls and other ‘less-lethal’ weapons for crowd control.

Shortly after the ordinance passed, US District Court Judge James Robart—who oversees reforms to SPD as part of an ongoing agreement between the US Department of Justice and the city of Seattle known as the consent decree—issued a temporary restraining order preventing it from taking effect. The order came in response to a warning from the US Department of Justice that any law preventing officers from using ‘less-lethal’ weapons against crowds might make officers turn to more serious uses of force, including hitting protesters with batons.

In the aftermath of Judge Robart’s restraining order, city council members turned to Seattle’s police oversight bodies—the Office of Police Accountability (OPA), the Office of the Inspector General (OIG), and the Community Police Commission (CPC)—and the team appointed by the federal court to monitor the city’s compliance with federal court orders to rework the legislation.

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The updated bill that Herbold introduced on Tuesday reflects the latest round of feedback from the DOJ and court-appointed monitoring team, who began an informal review of the draft legislation in February. In their recommendations to the council, the monitoring team emphasized that SPD officers need to be able to use targeted crowd control weapons against people committing acts of violence within larger peaceful protests, and that SPD will need additional time to adjust to any new restrictions on less-lethal weapons.

In its current form, the bill would ban officers from using “disorientation devices” like blast balls or ultrasonic cannons under any circumstances, with the exception of flash-bang grenades, which would still be available to SWAT teams. It would also allow officers to use pepper spray and tear gas to move crowds of protesters, but only in response to a “violent public disturbance”—a legal term to describe violence committed by a group of twelve or more people. Continue reading “Council Reviews New Version of “Less-Lethal” Weapons Ban” →

City Council, Courts, Police

Federal Judge: Seattle’s Path to Compliance With Consent Decree Still Unclear

By Paul Kiefer

U.S. District Court Judge James Robart convened a hearing on Thursday afternoon to review the city of Seattle’s progress toward implementing police reform and address how Seattle’s path to compliance with the federal consent decree has changed in the wake of last summer’s racial justice protests.

During Thursday’s hearing, the first since the protests, Robart emphasized that the city is still out of compliance with the consent decree in the areas of discipline and accountability, and that Seattle’s path toward an end to federal oversight is still unclear. Robart added that the federal court is now reviewing another possible breach of the consent decree: specifically, whether SPD’s response to last year’s protests leaves the city out of step with the court’s standards for appropriate use of force.

The consent decree—the agreement between the city and the Department of Justice that empowers the federal court to oversee reforms to the Seattle Police Department—dates back to 2012, when the DOJ investigation found that SPD officers frequently used excessive force without consequences. To end federal oversight, the city first needs to achieve “compliance” with the terms of the consent decree and remain in compliance for two years; Robart uses input from the city, accountability experts, and a court-appointed monitoring team to decide what compliance entails.

The court-appointed monitoring team, led by Dr. Antonio Oftelie since last September, submitted a work plan Thursday morning to track the implementation of reforms to SPD and the efficacy of the city’s accountability structure in 2021. As SPD prepares to rework its use-of-force and crowd management policies, and while the OPA and OIG conduct follow-up investigations into protest-related police misconduct and systemic policy problems, the monitoring team will act as an auditor, said Monisha Harrell, the court’s deputy monitor. “Our ultimate goal is to not exist,” she told PubliCola. “If the system is working well, then we aren’t needed. So we look for cracks in the system.”

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The city has nominally met Robart’s standards before: In 2018, the judge ruled that Seattle was in “full and effective” compliance with the terms of the consent decree. But less than a year later, Mayor Jenny Durkan and the city council approved a contract with the Seattle Police Officers Guild (SPOG)—the largest police union in the city—that undercut an array of reforms to SPD  accountability. After outcry from accountability advocates, Robart decided that Seattle no longer met the court’s expectations for police accountability and discipline, leaving the city partially out of compliance with the consent decree.

In his ruling, Robart directed the City Attorney’s Office (CAO) to submit plans to restore the accountability reforms by July 2019. More than a year later, the city not submitted a plan. Nevertheless, in early May of 2020, City Attorney Pete Holmes filed a motion to cut back the court’s oversight of SPD, contending that SPD had “transformed itself” under the federal court’s oversight. But Robart never ruled on the city’s motion to end some portions of the consent decree, because the city withdrew the motion shortly after the killing of George Floyd by Minneapolis police officers on May 25 sparked citywide protests.

City Attorney Pete Holmes, who represented the city during Thursday’s hearing, told the court that the protests were a “stress test” for SPD’s accountability structure. However, Holmes pointed to a letter published by Interim SPD Chief Adrian Diaz on Wednesday—entitled “Surpassing Reform: SPD’s Commitment to Accountability and Transparency”—as evidence of the “spirited tenacity of SPD to provide safety and constitutional policing even in the midst of the pandemic.” Holmes also expressed his belief that the accountability agencies—the Office of Police Accountability (OPA), Office of the Inspector General (OIG), and the Community Police Commission (CPC)—are “living up to the test” presented by SPD’s protest response. Continue reading “Federal Judge: Seattle’s Path to Compliance With Consent Decree Still Unclear” →

Courts, Police

Police Accountability Agencies to Review SPD’s New Protest Policies

By Paul Kiefer

At the end of October, after months of criticism from the city council, police oversight bodies and protesters, the Seattle Police Department announced in a blog post that they had “undertaken significant changes” to their protest management tactics. The post promised that SPD would reduce its visible presence at demonstrations to help quell tensions; that their officers would respect the roles of journalists, legal observers and protest medics; and that their protest response would focus on de-escalation and, when necessary, target individual law-breakers instead of largely law-abiding crowds.

But for more than a month, that promise of changes to SPD’s use-of-force and crowd management tactics seemed hollow. To have any real significance or consequence, the changes need to be enshrined in SPD’s policy manual. An crucial early step in that process took place last Wednesday, when SPD Assistant Chief Lesley Cordner appeared before the Community Police Commission (CPC), the civilian oversight body tasked with providing input on police reform, to present a slate of proposed changes to SPD’s protest response and use-of-force policies.

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The proposed changes include an update to the manual emphasizing the importance of the right to protest and  acknowledging that “the unlawful acts of some members of a crowd do not automatically turn an assembly from peaceable to unpeaceable.” They would also create a special team to investigate use of force at protests; specifically forbid officers from placing their knee on the neck of a person they’re arresting (a response to a well-publicized incident at a protest on May 30th); and allow officers to use pepper-ball launchers to target individual protesters they believe are breaking the law as an alternative to blast balls, which can hurt protesters standing nearby.

Other proposed revisions would require SPD command staff who lead protest responses (incident commanders) to provide explanations after the fact for any decision to issue a dispersal order to a crowd, and requires the incident commanders a “reasonable effort to ensure that the order is heard or received.”

According to Cordner, the department brought the tactical changes into the field before consulting with Judge James Robart, the federal district court judge who oversees police reforms mandated by a 10-year-old settlement agreement between Seattle and the Department of Justice known as a consent decree. Any changes to SPD’s use-of-force or protest management policies require Robart’s stamp of approval. Cordner’s presentation to the CPC is a step in that direction: the CPC, as well as the Office of Police Accountability (OPA) and the Office of the Inspector General (OIG), will review the proposed changes and suggest edits before a final draft of the policy revisions goes before Robart.

In response to last summer’s protests, the CPC, OPA and OIG issued their own recommendations for changes to SPD policy. During her presentation, Cordner claimed that the proposed changes to SPD policy reflected many of the accountability partners’ recommendations, including those the CPC issued in August.

That is only nominally true:  the current draft revisions do not include many of the OPA and OIG’s most crucial recommendations, including a wholesale end to the use of tear gas for crowd control and greater restrictions on when SPD can declare an unlawful assembly. For its part, the CPC generally avoided suggesting specific policy changes; Cordner called the one clear policy proposal included in the CPC’s recommendations—that SPD document every decision to issue a dispersal order and make the documents public within 24 hours of an incident—an “infeasible” proposition.

The CPC will have a chance to ask Cordner questions about the current draft revisions during their regular twice-monthly meeting on December 16 and will respond and suggest their own changes next year. The OPA and OIG will also have opportunities to weigh in on the proposed changes. Both offices began reviewing SPD’s protest response policies to identify areas for improvement during last summer’s protests; those reviews will play a crucial role in shaping their suggested policy revisions.

After the CPC issues a response, they will work with SPD, the OIG, the OIG and other accountability leadership to piece together a final slate of policy revisions. That final draft will go before Judge Robart in early 2021; if he approves to the changes, SPD’s policies could catch up with what they say are already their current tactics next year.