Tag: use of force

Police Monitor Praises Progress, But Does Not Recommend Ending Federal Consent Decree (Yet)

Seattle’s court-appointed police monitor, Dr. Antonio Oftelie

By Erica C. Barnett

As soon as next year, US Judge James Robart could lift the consent decree with the Seattle Police Department that has been in place since 2012, when the US Department of Justice concluded that SPD routinely used excessive force, engaged in biased policing, and lacked appropriate structures to ensure accountability for bad actors.

But the department still has to make significant improvements to its accountability and crowd control practices before seeking release from federal oversight, according to a report released last week by the court-appointed monitor who oversees SPD’s reform efforts, Dr. Antonio Oftelie, and his three-person team.

Overall, the monitor’s report found that SPD is in compliance with the consent decree in key areas, including crisis intervention, stops and detentions, and use of force, “except during the waves of protests over the summer of 2020, in which the serious concerns from both the community and the Monitoring Team described herein evidenced a need for further work in the area of policy and training around use of force, force reporting, and force review in large-scale crowd management events.”

The report does not deal explicitly with police accountability, which Oftelie told PubliCola is “still very much an open area” in the consent decree that will have to be addressed in the future; however, it notes that Oftelie’s team will conduct an assessment of Seattle’s entire accountability system as part of a larger monitoring plan that could wrap up as soon as the end of this year.

“The accountability system in Seattle is one of the best in the country, but it does have certain gaps or areas that could use improvement,” Oftelie said.

SPD has been under federal oversight since 2012, after the US Department of Justice determined that the department routinely 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, the city has asked Judge Robart to release it from the consent decree on two occasions, both times unsuccessfully. The most recent request, from former city attorney Pete Holmes and former mayor Jenny Durkan, came in May 2020—just before protests in the wake of George Floyd’s murder in Minneapolis, when police targeted large groups of demonstrators with blast balls, tear gas, and other “less-lethal” weapons, leading to more than 19,000 complaints.

Setting aside the protests, which the report addresses separately, the monitor concluded that SPD has sustained its compliance with the consent decree on use of force, stops and detentions, and how the department responds to people experiencing a behavioral health crisis.

“SPD officers respond to nearly 10,000 people in crisis per year, and Crisis Intervention Teams have dramatically improved interactions and outcomes – with force used in only 1.5 percent of contacts with individuals experiencing crises and many improvements made in connecting individuals in crisis to supportive human services,” the report says. (Crisis Intervention Team officers have gone through special training to respond to behavioral health crisis.)

“And when officers stop or detain a person, they must now articulate the reason for a stop and provide justification for searches,” the report continues. “As a testament to this progress, policing organizations around the nation, to advance their own reforms, have come to Seattle to learn from SPD and adopt policies and best practices in crisis response, de-escalation, and critical decision-making models.”

In a letter to Oftelie shortly before the monitor released the report, City Council public safety committee chair Lisa Herbold noted that the report also found a sharp increase in the number of people contacted by SPD officers while in crisis more than five times, with the greatest increase among people contacted more than 16 times.

Chart showing police stops by race in Seattle

The report also notes that even when it’s impossible to prove officer bias, disturbing racial disparities persist in almost every kind of police contact the report covers. Black and Native American people “are disproportionately stopped, detained, subjected to force,” according to the report, which also notes that officers are more likely to frisk Black people than white people, even though “frisks of White subjects more consistently find weapons.” Officers are also more likely to stop and frisk people when they’re in a neighborhood with more people of a race other than their own, the report found, and more likely to point their guns at Black individuals than people of any other race.

“Significant and persistent racial disparities suggest that continued monitoring of implementation of biasfree policing could result in positive community outcomes,” Herbold wrote.

The report also notes a strikingly high percentage of people—23 percent of those subjected to force, 16 percent of crisis contacts, and 17 percent of people stopped by police—whose race officers recorded as “unknown.” (Excluding the 2020 protests reduces the proportion of “unknown” use-of-force subjects to 15 percent.) The percentage of people of “unknown” race SPD interacted with spiked dramatically starting in mid-2019, when SPD stopped recording “Hispanic” as a racial category, according to the report, and apparently started reporting the race of most Latinos as “unknown.”

The report incorporates findings from several preliminary assessments, which found that officers’ use of force declined 33 percent between 2015 to 2019 and 48 percent between 2015 to 2021, with a more significant reduction in the most serious types of force, such as shooting; that officers responding to people in crisis rarely resort to force, “a dramatic improvement from DOJ investigative findings that led to the Consent Decree”; and that although there are still troubling racial disparities in who gets stopped and detained by police, officers are generally able to articulate “sufficient legal justification” for their actions by establishing “reasonable suspicion” when stopping or frisking a person. 

“I would describe the challenge right now with the number of officers as a crisis from the consent decree perspective. Are officers being supervised, is data being analyzed, is force being analyzed at the right level? All those systems are near collapse.”—Seattle Police Monitor Dr. Antonio Oftelie

The consent decree, Oftelie says, does not define aspirational goals for SPD; it establishes a “floor,” not a ceiling, by setting minimum standards for constitutional policing. Although the city council has groused at times that the consent decree makes it hard for them to pass laws reforming the department—for example, by transferring some of its duties, and funding, to civilians outside the department—Oftelie argues that “the ceiling is relatively unlimited,” and that the city could impose new rules on SPD—requiring special training on how to deal with people who are walking brandishing knives, for example—without violating the terms of the consent decree.

“I don’t agree that the judge has put any limitations on polices and practice that the city can put in place,” Oftelie said. “It’s situational, but I think that issue has taken on a narrative in the city that’s overblown… I think the community, and maybe sometimes the council, has used the consent decree as an excuse not to innovate new things.”

The report cautions that that the final phase of the consent decree will be “challenging,” and notes that SPD still has work to do to build on the progress it has made and restore trust with Seattle residents, particularly when it comes to protest response and accountability.

“In the comprehensive assessment, we deemed SPD in sustained compliance with use of force exclusive of crowd management, stops and detentions, and crisis intervention—what I didn’t say is that I recommend that these paragraphs in the consent be closed out and terminated,” Oftelie said. “SPD will have to write a new policy for crowd management that takes into consideration state law and the less- lethal weapons ordinance, and that policy will need to be reviewed by the DOJ, the monitor, and ultimately the court.” Continue reading “Police Monitor Praises Progress, But Does Not Recommend Ending Federal Consent Decree (Yet)”

Legislation Will Allow Police to Use Force to Stop People from Fleeing

Rep. Roger Goodman (D-45, Kirkland) speaks during a meeting of the House Public Safety Committee in February.

By Paul Kiefer

The state Senate voted on Friday to allow police officers to use force to stop people from fleeing when police stop them on suspicion of a crime. The legislation was a sticking point in the legislature’s efforts to revisit and refine a set of sweeping police reform bills that passed last year, including a rule that officers can only use force when they have probable cause to make an arrest.

This year’s bill, sponsored by Rep. Roger Goodman (D-45, Kirkland) drew criticism from national police accountability organizations and split the Senate Democratic caucus. Some police accountability advocates argued the bill gives police permission to use force in situations that don’t call for it.

Goodman initially introduced the bill in response to pressure from law enforcement agencies around the state, who argued that last year’s reforms, which required officers to have probable cause to make an arrest before using force, unintentionally limited police officers’ ability to stop and question people while allowing suspects to simply run away from police when stopped for questioning.

In crafting this year’s bill, lawmakers had to step carefully around a 1968 US Supreme Court decision, Terry v. Ohio, in which the court ruled that while police can detain someone based on suspicion alone, they can’t use force during such stops. The bill specifically focused on the right for police force to stop someone from walking away from officers during a stop, which law enforcement groups argued would not run afoul of the ruling.

“This law gives officers more leeway to harm people, and it makes it harder to hold them accountable when they do escalate an encounter.”—Enoka Herat, ACLU of Washington

Steve Strachan, director of the Washington Association of Sheriffs and Police Chiefs, told PubliCola that so-called “investigative stops” usually end with officers letting a suspect walk away. “Most investigative stops I’ve done in my law enforcement career have ended with, ‘thank you, I appreciate the information and you’re free to go,” he said.

Since the legislature adopted stricter rules for when police can use force in 2021, Strachan added, officers have “felt unsure of what to do if the person they’re trying to talk to—a person who may have been involved in a domestic violence incident, for example—starts walking away.” As a result, Strachan said, officers have increasingly opted not to stop people who attempt to flee questioning.

There is no statewide data to demonstrate that pattern, and while Seattle Police Department data shows that officers made fewer investigative stops in the six months after the 2021 rules took effect than in the previous six months, that decline began at the start of the pandemic, during which SPD has seen hundreds of its officers retire or transfer to other law enforcement agencies.

In Strachan’s view, Goodman’s bill was an attempt to find an “appropriate balance” between enabling police to hold suspects for questioning and prohibiting officers from using excessive force to do so; the bill stipulated that officers could only use “reasonable and proportional” force to stop a person from fleeing from a stop, which Strachan called a “productive guardrail for accountability.”

But civil liberties groups say the new law will enable law enforcement to escalate otherwise minor encounters with civilians, possibly with deadly consequences. “There was already case law that would allow officers to use force to stop someone from fleeing if there’s a danger to the officer or the public, like if there’s reason to believe that a person is armed,” said Enoka Herat, the Police Practices and Immigration Counsel at the ACLU of Washington. “But this law opens the door wider than that. … It gives officers more leeway to harm people, and it makes it harder to hold them accountable when they do escalate an encounter.” Continue reading “Legislation Will Allow Police to Use Force to Stop People from Fleeing”

Bill to Allow Police to Use Force Against Fleeing Suspects Could Face Constitutional Challenge

Washington State Capitol (Flickr: SounderBruce)

By Paul Kiefer

Responding to pressure from law enforcement agencies, state lawmakers introduced a bill last week that would allow police officers to use force to stop people from fleeing when police detain them on suspicion of a crime. Currently, police can only use force when they have enough evidence to arrest a person.

During a public hearing Tuesday, dozens of commenters, including local and national police accountability advocates, testified against the bill, arguing that it would escalate otherwise minor confrontations between police and civilians. The bill’s supporters, most of them police, argue that the change is necessary to prevent criminal suspects from running away from police with impunity. Looming over the debate, however, is a 1968 US Supreme Court decision that could be the largest obstacle to the bill’s passage and, if it becomes law, spark a new fight over the constitutional limits on use of force by police.

The bill, sponsored by Rep. Roger Goodman (D-45, Kirkland), would have two key effects. First, it would define “physical force” in state law for the first time, a change supported by both police accountability advocates and police themselves, as well as the state attorney general’s office. Second, and more controversially, the bill would allow police to use force when someone runs away from a so-called “investigative detention,” a type of police stop that only requires an officer to suspect a person of a crime, a lower standard than having probable cause for arrest.

The bill is part of a broader effort by Goodman and other Democratic lawmakers to revisit and refine a set of sweeping police reform bills that passed in 2021. This year’s bills, which also includes a proposal to allow officers to use force to detain people for involuntary mental health treatment, are a response to a year’s worth of backlash from law enforcement and Republican lawmakers, who claim the reforms have emboldened criminals and hamstrung police. The most controversial of last year’s police reform laws outlined a strict standard for when police can use force, allowing force only when officers have probable cause to make an arrest or when necessary to prevent a serious physical injury to themselves or another person.

“We know people of color and young people are more likely to be stopped, and we know they’re more likely to run away, even when they haven’t done anything, because they are intimidated by police officers.”—Enoka Herat, ACLU of Washington

Goodman’s proposal to allow police to use force to stop someone from running away from an investigative stop wouldn’t restore a power that police had before 2021. Instead, it would allow police to use “reasonable” force in an entirely new context after attempts to de-escalate a situation have failed. “Irrespective of the situation, police cannot use excessive force,” Goodman said. “That isn’t changing.”

Police accountability advocates, however, say allowing police to use force to stop someone from running away from an investigative stop is a recipe for trouble. “Hinging the law on flight from a stop is especially problematic,” said Enoka Herat, a police policy specialist with the ACLU of Washington, “because we know who it would harm. We know people of color and young people are more likely to be stopped, and we know they’re more likely to run away, even when they haven’t done anything, because they are intimidated by police officers.” Herat also warned that the bill might give officers too much leeway to decide what counts as “fleeing,” making it difficult for civilians to successfully sue officers for using force inappropriately.

Goodman sees his proposal as a middle ground between protecting civilians and allowing police to enforce the law. He argues that since state law still allows police officers to use force to arrest someone for obstruction of justice, a crime that can include running away from an investigative stop, his proposal would make it possible for fleeing suspect to avoid adding an arrest for obstruction to their record, if police decide they did not commit any crime.

Brian Smith, the Chief of the Port Angeles Police Department, also testified on Tuesday that Goodman’s bill could help resolve the “angst and confusion” that has made some officers unwilling to arrest suspects for obstruction when they try to flee a stop; officers would more frequently prevent people from running away from stops, he said, if they could use force more freely. Continue reading “Bill to Allow Police to Use Force Against Fleeing Suspects Could Face Constitutional Challenge”

Judge Sanctions Seattle for Violating Order Limiting Use of Weapons Against Protesters

Protesters face Seattle Police officers at a protest in May 2020 (Creative Commons)

 By Paul Kiefer

On Thursday, US District Court Judge Richard Jones issued a decision on the penalties Seattle will face for violating a court order he issued last summer to restrict the Seattle Police Department’s use of “less-lethal” weapons at protests. Jones ordered the city to pay $81,997 to cover the attorneys’ fees for Black Lives Matter Seattle King County (BLMSKC), the plaintiffs who sued the city in September 2020 for violating the court order.

In his decision, Judge Jones rejected two of the city’s arguments—that SPD officers did not violate the injunction, and that if they did so, the violations were minor—while also barring the city from introducing “new facts justifying the violations” after Jones found the city in contempt of his order.

The city’s attorneys tried to introduce new evidence to justify their actions during the protests, a request Judge Jones wrote would turn the city’s control over the most relevant evidence—body-worn video and officer testimony— into “both sword and shield. A shield because, during the contempt proceedings, the City would only introduce the evidence that it sees fit and would ask the Plaintiffs and the Court to consider only that limited record.” Allowing BLMSKC, “out of fairness,” to obtain use-of-force reports and body-worn video that would support its point of view would mean “that these proceedings would be endless,” Jones wrote.

But Judge Jones’ ruling was not a resounding victory for BLMSKC and its legal team, which included attorneys from the ACLU of Washington, Seattle University Law School’s Korematsu Center, and the Seattle law firm Perkins Coie.

Though Jones swatted away arguments from the city’s attorneys that he should reverse his ruling that found the city in contempt of a federal court order, he also turned down sanctions BLMSKC proposed as tools to keep SPD in line with the court order in the future: requiring SPD to send BLMSKC use-of-force reports and body-worn video from “any incident in which SPD uses less-lethal weapons against protesters” within five days of the incident.

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Additionally, Jones slashed the city’s requested attorney’s fees by 65 percent, arguing that many of the attorneys’ hours were “excessive, redundant or unnecessary.”

Last June, BLMSKC filed the lawsuit that led Judge Jones to issue a temporary injunction prohibiting SPD officers from using blast balls, pepper spray, tear gas and other crowd control weapons against nonviolent protesters. After Judge Jones issued his initial injunction, BLMSKC returned to his court again in July to argue that SPD continued to use crowd control weapons against peaceful protesters; in lieu of a court hearing, the city’s attorneys and BLMSKC agreed to expand the injunction to explicitly forbid SPD officers from targeting journalists, medics and legal observers, as from using crowd control weapons to move nonviolent crowds.

But after SPD used crowd-control weapons, including flash bangs, against protesters in August and September, BLMSKC sued the city for violating the court order a second time. When Judge Jones ruled in BLMKSC’s favor in December, he pointed to four clear, documented cases in which SPD officers used blast balls and pepper spray in ways that violated his order by “a clear and convincing margin.” In that decision, he added that four well-documented violations were probably not the full extend of SPD’s breach of the court order; however, because the city didn’t provide body-worn video footage from several protests in August and September, he couldn’t confirm any other cases of misconduct. Continue reading “Judge Sanctions Seattle for Violating Order Limiting Use of Weapons Against Protesters”

Seattle Seeks Reversal of Contempt Order in “Less-Lethal” Weapons Case

By Paul Kiefer

On Monday, the office of city attorney Pete Holmes asked Federal District Court Judge Richard Jones to reverse his December 7 ruling that the city acted in contempt of a court order restricting the Seattle Police Department’s use of force at protests. In a motion filed with the Federal District Court of Western Washington, Holmes argued that Jones’ initial ruling held the city to an unreasonable standard for compliance with the court’s orders, and that the court lacked strong evidence to support the contempt ruling.

Judge Jones’ ruling was the result of a lawsuit filed in late September by a group of plaintiffs, chiefly Black Lives Matter Seattle-King County (BLMSKC), who alleged that SPD had failed to rein in its officers’ use of “less-lethal” weapons—particularly blast balls—at protests in the late summer and early fall. Specifically, the plaintiffs accused SPD of violating an injunction Judge Jones issued in July restricting officers’ use of force against peaceful demonstrators, journalists and legal observers.

In his December 7 decision, Jones didn’t accept the plaintiffs’ arguments outright, but he ruled that four clear instances in which SPD officers violated his injunction by using weapons such as blast balls “indiscriminately” against protesters was enough to place the city in contempt. Jones also noted in his ruling that these four documented cases were probably not the extent of SPD’s violations of his orders.

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Being fully independent means that we cover the stories we consider most interesting and newsworthy, based on our own news judgment and feedback from readers about what matters to them, not what advertisers or corporate funders want us to write about. It also means that we need your support. So if you get something out of this site, consider giving something back by kicking in a few dollars a month, or making a one-time contribution, to help us keep doing this work. If you prefer to Venmo or write a check, our Support page includes information about those options. Thank you for your ongoing readership and support.

After Judge Jones ruled the city in contempt, the court gave BLMSKC and the other plaintiffs four days to propose sanctions for the city. Their proposals were mild: the plaintiffs suggested that the court require the city to distribute copies of Judge Jones’ December 7th opinion to all SPD officers, “accompanied by clear instructions about what conduct is prohibited”; send use-of-force reports to the plaintiffs within five days of any incident in which SPD uses less-lethal weapons against protesters; and pay the plaintiffs’ attorney fees, which totaled $263,708.

Continue reading “Seattle Seeks Reversal of Contempt Order in “Less-Lethal” Weapons Case”