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United States v. City of Seattle

United States District Court, W.D. Washington, Seattle

January 17, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF SEATTLE, Defendant.

MEMORANDUM SUBMITTING CONSENSUS SEATTLE POLICE DEPARTMENT POLICIES AND ORDER APPROVING SAME

JAMES L. ROBART, District Judge.

The Monitor hereby submits proposed Seattle Police Department ("SPD") policies on Terry stops and bias-free policing. All parties and the Monitor concur that the policies comply with the requirements of the Consent Decree. The policies will guard against the risk of discriminatory policing, as well as stops and searches, without the requisite reasonable suspicion or probable cause. The Parties and the Monitor respectfully request this Court's approval of these policies.

Importantly, the policies call for the collection of data from which assessments can be made as to the existence of discriminatory policing or disparate impact. The data collected will also include the specific reasons in a narrative form as to why a police officer decided to stop or search. The data will be collected in a relational database that will ultimately permit supervisors and managers to compare officer-to-officer performance, shift to shift, and precinct to precinct. The parties and the Monitor have committed to confer and add any additional data points by the Monitor's birthday on February 17, 2014.

These policies have been posted on the Monitor's website for review and comment by the public. Additionally, among other individuals and organizations, the Community Police Commission ("CPC")-which received the draft policies in May 2013 but did not provide final comments and suggestions until a few days before Christmas-met with the parties.

Finally, the Monitor and the Monitoring Team actively evaluated and considered these important policies. The Monitor and Monitoring Team researched and critiqued similar policies in place elsewhere, as well as model policies by leading police organizations and academicians. As we did with the respect to the use of force policies, we reached out to community representatives and civil rights, civil liberties, and grassroots organizations. The Monitor and the Monitoring Team considered at length whether these new policies dealing with stop and frisk and discriminatory policing will increase community trust and public confidence in the police. We determined that they would.

I. Terry Stops

Among the highlights of the new policy and the areas in which Consent Decree provisions open new ground are the following:

Under the new policy, a Seattle police officer must have a reasonable suspicion that a crime has or is about to occur before stopping a pedestrian or driver. Reasonable suspicion must be documented using specific articulable facts. (Policy 6.220-1.)

Not every reasonable suspicion of a crime may legitimately lead to a stop. For example, a reasonable suspicion of misdemeanors may not give rise to a stop unless the suspect's conduct itself poses a public safety risk or has the potential to escalate. (Policy 6.220-3.)

During a Terry Stop, officers will limit the seizure to a reasonable scope. Actions that would indicate to a reasonable person that they are being arrested or indefinitely detained may convert a Terry stop into an arrest requiring probable cause or an arrest warrant. Unless justified by the articulable reasons for the original stop, officers must have additional articulable justification for further limiting a person's freedom during a Terry stop, such as:

• Taking a subject's identification or driver license away from the immediate vicinity
• Ordering a motorist to exit a vehicle
• Putting a pedestrian up against a wall
• Directing a person to stand or remain standing, or to sit on a patrol car bumper or any other place not of their choosing
• Directing a person to lie or sit on the ground
• Applying handcuffs
• Transporting any distance away from the scene of the initial stop, including for the purpose of witness identification
• Placing a subject into a police vehicle
• Pointing a firearm
• Frisking for weapons
• De minimis force

(Policy 6.220-4.)

The policy specifically provides that merely because a Terry stop occurs in a high-crime area is not by itself sufficient to justify a frisk. A frisk is not a generalized search of the entire person. The decision to conduct a frisk or pat-down is based upon the totality of the circumstances and the reasonable conclusions drawn from the officer's training and experience. The frisk for weapons is strictly limited to what is necessary for the discovery of weapons which might be used to harm the officer or others nearby. Generally, the frisk must be limited to a pat-down of outer clothing. Once the officer ascertains that no weapon is present, the officer's limited authority to frisk must stop. (Policy 6.220-8.)

Under Washington state law, traffic violations may not be used as a pretext to investigate unrelated crimes for which the officer lacks reasonable suspicion. Pretext is stopping a suspect for an infraction to investigate criminal activity for which the officer has neither reasonable suspicion nor probable cause. The Washington State Constitution forbids use of pretext as a justification for a warrantless search or seizure. Officers must actually, consciously, and independently determine that a traffic stop is reasonably necessary in order to address a suspected traffic infraction. (Policy 6.220-9.)

Officers must be able to clearly articulate the objective facts they rely upon in determining reasonable suspicion. Officers must document all Terry stops and have a supervisor approve the documentation before they leave at the end of their shift. The data will be collected in an electronic form suitable for analysis. The documentation must contain at least the following elements:

• Original and subsequent objective facts for the stop or detention
• The reason (including reasonable suspicion or probable cause) and disposition of the stop (including whether an arrest resulted; whether a frisk or search was conducted and the result of the frisk or search; and whether the subject was moved or transported from the location of the initial stop)
• Demographic information pertaining to the subject, including perceived race, perceived age, perceived ethnicity and perceived gender.

As noted above, the Parties and Monitor will continue to confer about the full scope of the data to be collected on Terry stops. A more comprehensive list of data to be collected will be completed by February 17, 2014.

A supervisor shall approve the documentation of Terry stops. Absent extenuating circumstances, by the end of each shift, supervisors will review their officers' reports that document the Terry stops made during the shift to determine if they were supported by reasonable suspicion and are consistent with SPD policy, federal, and state law. (Policy 6.220-10, 11.)

II. Bias-Free Policing

The Parties negotiated at length, in meetings facilitated by the Monitor and the Monitoring Team, to determine how best to encapsulate in policy the concerns about possible discriminatory or biased policing described in the Department of Justice's Findings Letter and in the Consent Decree. The policies described below define expansively on persons and characteristics which may not be discriminated against.

Bias-based policing is the different treatment of any person by officers motivated by any characteristic of protected classes under state, federal, and local laws as well other discernible personal characteristics of an individual. Such "discernible personal characteristics" include, but are not limited to, the following:

• Age
• Disability status
• Economic status
• Familial status
• Gender
• Gender Identity
• Homelessness
• Mental illness
• National origin
• Political ideology
• Race, ethnicity, or color
• Religion
• Sexual Orientation
• Status as a veteran

(Policy 5.140.)

Employees shall not make decisions or take actions that are influenced by bias, prejudice, or discriminatory intent. Law enforcement and investigative decisions must be based upon observable behavior or specific intelligence. Officers may not use discernible personal characteristics in determining reasonable suspicion or probable cause, except as part of a suspect description. Employees shall not express-verbally, in writing, or by other gesture-any prejudice or derogatory comments concerning discernible personal characteristics. Employees who engage in, ignore, or condone bias-based policing will be subject to discipline. Supervisors and commanders who fail to respond to, document and review allegations of bias-based policing will be subject to discipline. (Policy 5.140-2.)

The policies place responsibility and accountability not only on the officer who engages in discriminatory policing but also on supervisors, managers, and executives:

Employees who have observed or are aware of others who have engaged in biasbased policing shall specifically report such incidents to a supervisor, providing all information known to them, before the end of the shift during which they make the observation or become aware of the incident. Supervisors, commanders and civilian managers have an individual obligation to ensure the timely and complete review and documentation of all allegations of violation of this policy that are referred to them or of which they should reasonably be aware.

(Policy 5.140-4.)

An officer or other SPD employee who hears a complaint of discriminatory policing must call a supervisor to the scene to review the circumstances and determine the appropriate course of action. Policy 5.140-5 The officer must fully document the encounter and collect identifying information from the complainant. (Policy 5.140-6.)

The new SPD policies are distinctive in their approach to disparate impact. These policies are noteworthy for the lack of rigidity or ideological bias:

The Seattle Police Department is committed to eliminating policies and practices that have an unwarranted disparate impact on certain protected classes. It is possible that the long term impacts of historical inequality and institutional bias could result in disproportionate enforcement, even in the absence of intentional bias. The Department's policy is to identify ways to protect public safety and public order without engaging in unwarranted or unnecessary disproportionate enforcement.
This policy requires periodic analysis of data which will assist in identification of SPC practices - including stops, citations and arrests- that may have a disparate impact on particular protected classes relative to the general population. When disparate impacts are identified, the Department will consult as appropriate with neighborhood, business and community groups... to explore equally effective alternative practices that would result in less disproportionate impact. Alternative enforcement practices may include addressing the targeted behavior in a different way, de-emphasizing the practice in question or other measures. Initially, disparate impact analysis will focus on race, color, and national origin.

(Policy 5.140-9.)

III. Conclusion

The task of the Monitor was to duly consider if the proposed SPD policies on Terry stops and bias-free policing policies embody the requirements of the Consent Decree. The Monitor and the Monitoring Team have determined that the proposed SPD Terry stops and bias-free policing policies do so. Accordingly, the Monitor respectfully requests that this Court accept these policies and order them effective forth with.

The Court hereby approves the consensus SPD Policies filed herewith as Exhibits A and B and orders them effective forth with.

EXHIBIT A

Seattle Police Manual

6.220 - Voluntary Contacts & Terry Stops

Effective Date: TBD

6.220-POL

This policy applies to all voluntary contacts and Terry stops conducted by officers.

1. Terry Stops are Seizures and Must Be Based on Reasonable Suspicion in Order to be Lawful

A Terry stop must be based on reasonable suspicion and documented using specific articulable facts as described in this policy.
This policy prohibits Terry stops when an officer lacks reasonable suspicion that a subject has been, is, or is about to be engaged in the commission of a crime.
Searches and seizures by officers are lawful to the extent they meet the requirements of the 4th Amendment and Washington Constitution Art. 1, Section 7.[1], [2], [3]
A Terry stop is a seizure for investigative purposes. A seizure occurs any time an officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen. A seizure may also occur if an officer uses words, actions, or demeanor that would make a reasonable person believe that he or she is not free to go.

2. Officers Must Distinguish Between Voluntary Contacts and Terry Stops

a. Voluntary Contacts Defined

There are two categories of ...


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