Tag: police misconduct

Anne Levinson: For Real Police Accountability, Here Are Two State Laws We Must Change

By Anne Levinson

In early June, as Seattle residents protesting police brutality were being met daily with disproportionate and seemingly indiscriminate force by law enforcement, several current and former elected officials reached out to me asking what state legislators could do in the next session to strengthen accountability in law enforcement.

It was a question I welcomed. During two terms providing independent oversight for Seattle’s police accountability system, I had reviewed thousands of misconduct complaints and investigations, observed dozens of police trainings, conducted a special review of Seattle’s police disciplinary system, issued reports highlighting needed accountability system reforms, identified for the city in detail the provisions in the police contracts that had tilted the system and were detrimental to the public, and helped draft and secure passage of the 2017 police accountability ordinance.

And when a new Seattle Police Officers Guild (SPOG) contract was ratified in the fall of 2018, over the unanimous objections of more than 30 community organizations, I provided expert witness testimony, explaining to the judge overseeing the federal consent decree the ways in which the contract threatened to corrode community trust and confidence. The judge agreed, finding the City partially out of compliance with the consent decree in May 2019 and directing the City to tell the court by that July how it planned to remedy the identified barriers to accountability.

A year later, in May 2020, the city had still not submitted its plan to the court and yet it asked the court to largely end the consent decree. Then the demonstrations began.

So when I was asked that question last June—with a governor, Senate and House leadership, committee chairs, and other legislators interested in police reform; many labor leaders no longer accepting the proposition that they couldn’t be both pro-police reform and pro-labor; and the city still out of compliance with the consent decree—it was clear that the time had come for the state to lead.

Several potential state-level reforms were already garnering public attention in our state and elsewhere, including truly independent investigations of deadly-force incidents; qualified immunity reform; demilitarization of police; reforms to the inquest process; elimination of no-knock warrants; and establishing a statewide public database on use of force.

But there are two other reforms I had  recommended that have not gotten much public attention until recently: (1) Removing police accountability from the collective bargaining process; and (2) Strengthening the law for officer decertification to address serious misconduct. Each is critically important and long overdue.

First, the state must clearly exempt police misconduct and disciplinary systems from Washington collective bargaining law so that every local and state law enforcement agency can establish strong, effective, and transparent accountability mechanisms that serve the public as they should, rather than continuing to provide only as much accountability as police unions will accept.

Police are not the same as other public sector employees. Others aren’t required to carry and use guns. They haven’t been given broad discretion to take your liberty and sometimes your life. It’s why there is a separate accountability system to address misconduct. And it’s why there is a consent decree. The provisions in police contracts can have very different impacts on the public than similar provisions in other public sector contracts.

Across the country, police contracts no longer just address wage, benefits, and other subjects traditionally thought of as “working conditions,” as other labor contracts do. Instead, police contracts have been used to shield officers from accountability when misconduct occurs, diminish transparency, and preclude or weaken civilian oversight. It’s why I so strongly opposed ratifying Seattle’s police contracts in 2017 and 2018 and weighed in on behalf of the community to the federal court.

These barriers to accountability—and others—were brought to the attention of city officials, and many were addressed in the ordinance. And yet, unbeknownst to the public, the reforms never took effect because of what the city later agreed to in the police contracts.

Here are a few examples of provisions in Seattle’s police contracts that impede accountability and walk back reform efforts.

The contracts reinstated officers’ ability to appeal discipline through multiple routes, including to an outside arbitrator. (Eliminating this ability was a priority in the 2017 accountability ordinance). As reform advocates, chiefs, and local elected officials have seen in thousands of cases across the country, arbitrators routinely substitute their own judgment on discipline, overturning chiefs’ decisions, ordering officers who committed serious misconduct to be reinstated.

This weakens the chief’s power to hold officers accountable in line with public expectations, allowing arbitrators to overturn disciplinary decisions for any number of reasons, including minor procedural issues, even in cases where the chief’s decision is supported by a preponderance of evidence. It allows hearings to be closed to complainants, the public, and the media, and allows months, if not years, of delay before appeals are resolved. As of August, Seattle has 80 appeals pending, some going as far back as 2016.

What other barriers to accountability are buried in Seattle’s police contracts? If a complaint of misconduct involving dishonesty or excessive force is not made within a certain period of time, or if a complaint isn’t fully investigated within 180 days, the officer cannot be disciplined, regardless of the misconduct or the reason for the delay. How the days are counted is filled with vague conditions constantly subject to challenge.

There’s more. The burden of proof required to prove misconduct has been raised to an undefined “elevated” standard for any termination that results from misconduct that could be considered “stigmatizing” to the officer. Only certain misconduct complaint and investigation files are retained; others must be purged. Civilian oversight is limited when the alleged misconduct is criminal, even though these cases often involve the most serious types of misconduct. Civilian oversight subpoena authority has been narrowed. Officers are allowed to use vacation and sick leave when the discipline is supposed to be days without pay. Officers under investigation – and their union representatives – are allowed to withhold relevant information during the investigation and raise it later, as evidence to challenge discipline. Officers’ names must be redacted when case information is made available to the public.

And more. The long-recommended oversight of secondary employment (off-duty work as an officer) by independent, civilian management was never implemented. Instead, it was included in the SPOG  contract and then rolled back. There are limitations on the number of civilian investigators. Different ranks are treated differently. And there are even contract provisions that require the public to pay for a large part of the union president’s salary.

These barriers to accountability—and others—were brought to the attention of city officials, and many were addressed in the ordinance. And yet, unbeknownst to the public, the reforms never took effect because of what the city later agreed to in the police contracts.

In court filings, the city argued that all these types of police contract provisions are commonplace. The success of police unions in embedding structural barriers to accountability across the country is thus ironically used as a reason to stifle reforms. The city also argues that the public and the judge should understand that police contracts continue to have these provisions because the nature of bargaining requires give-and-take. That is exactly the problem.

Police, like all employees, deserve contracts that provide for fair wages, benefits, and good working conditions. But there is no reason to continue to accept the argument that standards and practices to address police misconduct must be considered “working conditions” that cannot be determined by police management and local government leaders outside the bargaining process.

Police have been granted extraordinary powers to use discretion in a range of ways that have enormous impact on the public, including taking away liberty and the use of deadly force. Legal and procedural safeguards against police abusing these powers in ways that undermine public trust should not be subject to the give and take of bargaining. Nor should the public have to pay so that their community can receive constitutional, effective, and respectful policing.

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Second, the state must completely overhaul the law enforcement decertification law.

Washington is one of 45 states that require law enforcement officers to be trained and licensed (“certified”), with standards for revoking that license (“decertified”), as many other professionals must be

How and when decertification happens is fundamentally important to accountability. If an officer is fired or convicted of a crime, but not decertified, the officer can simply go to another law enforcement agency. Washington’s law for decertifying officers is limited in scope and riddled with loopholes that allow problematic officers to move from department to department with impunity or to avoid accountability if their agency does not act.

Back in early 2014, when providing independent oversight of Seattle’s police accountability system, I recommended that Seattle work with other cities and counties and the state legislature to overhaul the law. We also included reform of the decertification law in the city’s 2017 accountability ordinance. But the city never really took it on. So when asked what police reform the legislature should prioritize in the next session, significantly overhauling the decertification law was also at the top of my list. Senator Jamie Pedersen, Chair of the state Senate’s Law & Justice Committee agreed, and in early June offered to be the prime sponsor of a bill that will enact a wide range of reforms.

To really remedy the gaps and loopholes that make Washington’s law—and most all decertification laws in other states—so ineffective, improving one or two elements of the law is not enough. So I’ve recommended many changes, starting with making sure that the grounds for decertification cover the wide range of misconduct that should result in an officer losing their license.

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The City and County Keep Lists of Cops with Credibility Issues. Many of Them Remain on Patrol.

Image from SPD Detective Franklin Poblocki’s body camera

By Paul Kiefer

In early April, a pair of Seattle Police lieutenants from the West Precinct spotted a man rolling a bike and a garbage can down Main Street in the International District. Large coils of copper wire hung off the bike’s handlebars, and the garbage can was packed with more of the same wire. In their report, the officers noted that the wire appeared to have been torn or quickly cut; the officers concluded that the man had probably stolen it from a nearby construction site. When they stopped the man to question him, he quickly admitted that he had taken the wire from a site near Yesler Terrace. The officers then booked the man into the King County Jail.

By most standards, the arrest was unremarkable. But if one of the officers who arrested the man had been called to testify, her name—Lora Alcantara—would have triggered an alert that could have prompted prosecutors to drop the case.

Alcantara is one of 24 SPD officers on the so-called “Brady Lists” kept by the King County Prosecutor and the City Attorney’s Office. The lists, named after a 1963 US Supreme Court ruling called Brady v. Maryland that required prosecutors to present any evidence that might benefit the defendant, are formally known as Potential Impeachable Disclosure (PID) lists. They include the names of officers with sustained findings of dishonesty, evidence of racial bias, or criminal charges or convictions.

Alcantara was in added to the KCPO’s PID list in 2016 after a Seattle Office of Police Accountability Investigation found her guilty of misconduct for calling a Black driver a “fucking Negro” during a car chase in 2013. [UPDATE] A subsequent OPA investigation found that Alcantara also lied about her interaction with a KIRO-TV news crew she encountered during the chase when debriefing the incident with her supervisor, leaving her with an additional mark on her record for dishonesty. Former police chief Kathleen O’Toole suspended Alcantara for five days without pay for violating the SPD manual’s “prohibitions concerning derogatory language.” 

 

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In practice, those lists limit the ability of officers with a record of misconduct to testify. If a listed officer is the sole witness in a case, both prosecutors’ offices say they are far less likely to file charges, limiting the officers’ abilities to work alone. However, though listed officers are often unable to give testimony—a key responsibility of law enforcement officers, especially those working in patrol operations—salary and assignment data show that the department has continued to give the 24 officers annual raises and has left the vast majority in patrol positions. 

When a prosecutor from either office finds that an officer they subpoenaed to testify in a case is on their Brady list, their offices have to disclose that information (and additional details about the officer’s misconduct record) to either the defense attorney (if the officers are on the list because of a record of dishonesty) or the trial judge. Defense attorneys can use this information to impeach an officer’s testimony, and being on a Brady list “can be a factor in whether a prosecutor chooses to file charges,” Dan Nolte, the communications director for the city attorney’s office, said. “If a Brady List officer is on a case and no other officers can corroborate their account, we’re likely to seek additional evidence confirming the situation before choosing to file.”

Over the past decade, the lists have grown to include dozens of SPD officers, and they continue to grow.

Over the past decade, the lists have grown to include dozens of SPD officers, and they continue to grow. Most of the 75 SPD officers on the lists are no longer employed by the department: some, like 31-year SPD officer Ernest Hall (for whom the OPA found a lengthy record of dishonesty), the department fired outright; others, like former officer Alex Chapackdee (arrested in 2017 on federal drug trafficking and money laundering charges) resigned in lieu of termination; and others, like former Detective Ron Smith (charged for shooting a rival biker gang member at a South Dakota bar in 2008), retired from the department.

OPA Director Andrew Myerberg says it’s rare for officers who land on the lists to keep their jobs. Still, it is common enough that of the 75 SPD officers who prosecutors have added to their lists over the past 15 years, nearly a third remain employed by the department.

Four active SPD officers are on both lists because of dishonesty. One—Officer Christopher Garrett—landed on the KCPO list 15 years ago after lying about his availability to testify in a drug trial; he was among the first officers to be added to the list. Another, Detective Franklin Poblocki, somewhat famously spent forty minutes waiting outside a Black man’s workplace in the Central District in a rolling chair after the two exchanged barbs over a towed car in 2018. Poblocki told a passerby that he was waiting for an apology but claimed to his coworkers that he had merely been engaged in “community-oriented policing stuff.” In the wake of the incident, the OPA concluded that Poblocki had lied to investigators and now-outgoing SPD Chief Carmen Best demoted him from sergeant to detective for inappropriate behavior that “degraded” the department’s community policing efforts.

At least two current SPD officers on the CAO’s list have criminal charges on their records: Officer Caleb Howard was charged with misdemeanor assault in 2018 after punching a coworker and strangling his 17-year-old son at a backyard barbecue in 2018; 33-year SPD veteran (and one-time officer of the year) Officer Felton Miles was charged with felony harassment after bursting through the door of his ex-wife’s home and threatening to kill her and her boyfriend in 2007. SPD fired Miles, but a Seattle judicial board overturned Miles’ firing in 2008 and ordered the department to reinstate him.

This year, the salaries of all the officers on the lists add up to roughly $3.3 million, not including overtime.

Several on the list are fairly high-ranking. Captain Randal Woolery, for instance, was placed on the CAO’s list in 2019 after an undercover SPD prostitution sting caught him soliciting a sex worker in North Seattle (he has been charged for the incident but not convicted). Seven others on either list hold ranks of sergeant or higher, including Lieutenant Alcantara.

This year, the salaries of all the officers on the KCPO and CAO’s lists add up to roughly $3.3 million, not including overtime. Based on the city’s 2020 wage data, two of those officers—Captains James Dermody and Randal Woolery—will make over $200,000 this year before overtime. Others, like Lieutenant Alcantara, were promoted after the events that landed them on the Brady lists.

Just as notably, though their presence on the lists renders them vulnerable to impeachment as trial witnesses, SPD have left most of the officers on the lists to roles in patrol positions. As patrol officers, they are more likely to interact with the public and make arrests; therefore, the prosecutors are more likely to need their testimony when filing charges against those they arrest. Nolte says the city attorney’s office would rather turn to security camera footage or not file charges than have a case fail because the police witness appeared on their Brady List. KCPO Communications Director Casey McNerthey, however, noted that his office has not yet seen a case dismissed because an arresting officer was on their Brady list — after they disclose that information to the defense council, the court can adjust as necessary.

But that hasn’t stopped the listed officers from making stops and arrests. Detective Poblocki, for instance, has continued to make so-called “Terry Stops“—stopping someone based on an officer’s “reasonable suspicion” that the person is involved in criminal activity—for the past two years as part of the West Precinct’s burglary and theft squad, despite his dubious presence on the KCPO and CAO’s lists. In effect, the prosecutors (and police) have deemed Poblocki not credible enough to give testimony, but credible enough to conduct arrests, carry a gun, and earn a full salary.