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United States v. City of Seattle

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

May 3, 2017

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

          ORDER APPROVING THE SEATTLE POLICE DEPARTMENT'S DRAFT BODY-WORN VIDEO POLICY

          JAMES L. ROBART United States District Judge

         I. INTRODUCTION

         Before the court is the Monitor's memorandum regarding the Seattle Police Department's (“SPD”) proposed body-worn video (“BWV”) policy. (Monitor Mem. (Dkt. # 370).) At issue is Paragraph 3 of Section 16.090-POL-2 of the policy, which prohibits SPD officers from reviewing BWV footage prior to making statements in cases involving high-level uses of force (such as force resulting in injuries like a broken bone or any use of deadly force), but permits SPD officers to review such footage prior to making statements in cases involving low-level uses of force (such as force used in handcuffing or that causes transient pain). (See Id. Ex. A (attaching proposed SPD policy) at 7-8.) The Monitor is concerned that Paragraph 3 of Section 16.090-POL-2 violates the Consent Decree[1] and recommends that the court adopt a modified version of the provision that prohibits SPD officers from reviewing BWV prior to making statements in any case involving an officer's use of force-including low levels of force.[2](See Id. at 10 (“[T]he Monitor takes issue with officers being able to review video of force incidents before they have provided their recollections of what transpired.”); see also Id. Ex. B (attaching the Monitor's proposed revision to the SPD policy) at 7-8).) Both Plaintiff United States of America (or the Department of Justice (“DOJ”)) and Defendant City of Seattle (“the City”) filed responses to the Monitor's memorandum in support of SPD's proposed BWV policy. (City Resp. (Dkt. # 379); DOJ Resp. (Dkt. # 378).) The Community Police Commission (“CPC”), on the other hand, filed a memorandum in support of the Monitor's position.[3] (CPC Resp. (Dkt. # 377).)

         The court has reviewed all of the materials submitted on the issue of SPD's proposed BWV policy and appreciates the thoughtful and thorough analysis contained in all of the memoranda. In addition, the court appreciates the steadfast and comprehensive work of the Monitor and recognizes his substantial contribution to SPD's success in moving toward constitutional and effective policing. Nevertheless, on the issue of SPD's BWV policy, the court declines to accept the Monitor's recommendation. Based on its review of the submitted materials, the terms of the Consent Decree, the relevant portions of the record, and the applicable law, the court concludes that SPD's proposed policy does not violate of the Consent Decree and hereby APPROVES SPD's proposed BWV policy without modification or amendment as discussed below.

         II. BACKGROUND & ANALYSIS

         A. Application of the Consent Decree

         In general, the parties agree that the Consent Decree does not expressly address the topic of BWV but that the Monitor may appropriately offer technical assistance to SPD on the topic under Paragraph 173(c).[4] (DOJ Resp. at 3; see City Resp. at 6.) When an issue falls within the purview of Paragraph 173(c), SPD has discretion to decide whether to utilize the Monitor's advice or not. (See Consent Decree ¶ 173(c).) The parties agree that the Monitor provided technical assistance to SPD on SPD's proposed BWV policy, and SPD decided to adopt most but not all of the Monitor's advice.[5] (DOJ Resp. at 3; City Resp. at 5-6.)

         However, the Monitor and DOJ generally agree that, irrespective of the applicability of the Consent Decree to the remainder of proposed BWV policy, Section 16.090-POL-2, Paragraph 3, of the policy falls squarely within the purview of the Consent Decree and thus is reviewable by DOJ, the Monitor, and the court. (DOJ Resp. at 4; see Monitor Mem. at 6-7; see also Id. at 3 (“The Monitor has examined the SPD policy provisions regarding review of video recorded by body-worn cameras and asserts that it does indeed conflict with the Consent Decree.”).) The City also agrees that “where any affirmative SPD action or policy touches on the areas of reporting, investigation and review, that portion of the action or policy is within the purview of the Monitor, ” but thinks that the court need not address the issue because its proposed policy comports with the Consent Decree anyway. (See City Resp. at 5-6.)

         Large portions of the Consent Decree are devoted to setting forth requirements for the review and reporting of uses of force by SPD officers. (See Consent Decree ¶¶ 100-26.) These provisions require SPD officers to promptly and accurately report force used in incidents. (See, e.g., id. ¶¶ 97, 100.) Thus, if a new, proposed SPD policy or program conflicts with the ability of officers to provide prompt and accurate reports of their use of force, the policy or program conflicts with the Consent Decree and should not be enacted or approved. For this reason, the court agrees with the Monitor and DOJ that both the Monitor and the court have the authority to examine whether Section 16.090-POL-2, Paragraph 3-which relates to officer reporting-conflicts with the reporting requirements set forth in the Consent Decree or any other Consent Decree provisions. Accordingly, the court now conducts its review based on the filings of the Monitor, the parties, and the CPC.

         B. Section 16.090-POL-2, Paragraph 3, of the SPD's Proposed BWV Policy

         The Monitor is concerned that Paragraph 3 of Section 16.090-POL-2 violates Paragraphs 70(h), 119, and 164 of the Consent Decree. (See Monitor Mem. at 2-3.) These paragraphs provide as follows: (1) SPD must “ensure that [any use of force] incident is accurately and properly reported, documented, and investigated” (Consent Decree ¶ 70(h)); (2) the Force Review Board (“FRB”) must “conduct timely, comprehensive, and reliable reviews of all Type II and Type III uses of force”[6] (id. ¶ 119); and (3) the Office of Professional Accountability (“OPA”) must “ensure that all complaints regarding officer conduct are fully and fairly dealt with” and “all investigative findings are supported by evidence.” (id. ¶ 164). In general, the Monitor objects to SPD's proposed policy because it allows officers to review video of low-level force incidents before the officers provide their recollections of what transpired. (Monitor Mem. at 10.) The Monitor believes that such review exposes officers to aspects of the incident that they might not have seen or could not recall, which will affect the investigators' ability to assess the officer's contemporaneous appraisal of circumstances that led the officer to use force. (Id.)

         As an alternative to Paragraph 3 of Section 16.090-POL-2, the Monitor proposes a policy that would prohibit SPD officers from reviewing video prior to making a report in any use of force situation. (Monitor Mem. at 12-13.) The Monitor further proposes that the policy governing BWV be silent on officer review of video prior to reporting and instead simply refer to the FIT Manual and Use of Force policies, which he suggests the parties could revise to refer to BWV. (Id. at 13-15.)

         Although the court is sensitive to the Monitor's concerns, the court disagrees that Section 16.090-POL-2, Paragraph 3, violates either the terms or the purposes of the Consent Decree. Paragraph 3 of Section 16.090-POL-2 prohibits SPD officers from reviewing BWV footage prior to making a statement regarding their use of force in instances involving serious uses of force, but permits officers to review such footage prior to making a statement in incidents involving low-level uses of force. The Consent Decree does not expressly address BWV, but it does require that officer use of force be “accurately” documented. (See Consent Decree ¶ 70(h).) The Consent Decree, however, also emphasizes that its goal is to “focus police resources on the most serious cases, while also requiring that all reportable uses of force cases are reported and not under-classified.” (Id. ¶ 91.) Thus, the Consent Decree seeks to strike a balance by requiring that all use of force cases are properly reported while at the same time focusing SPD resources on the highest level use of force cases.

         The court finds that Paragraph 3 of Section 16.090-POL-2 strikes that same balance with respect to officer review of BWV. SPD believes permitting officer review of BWV in low-level uses of force will increase the accuracy of use of force reporting and ease the administrative burden of notetaking and drafting reports. (See City Resp. at 7-11.) As the City points out, with respect to the accuracy of force reporting, there will inevitably be inconsistencies between reports written before and after review of BWV due to the inherent limits of human perception and memory. (Id. at 11 & n.57.) Allowing officers to view BWV prior to writing a report reduces officers' potential exposure to allegations of inaccuracy and dishonesty in those instances involving the use of lower levels of force. (See id.) The Monitor is correct that this procedure increases the risk of clouding the officer's contemporaneous appraisal of circumstances that led the officer to use the force employed. (See Monitor Mem. at 10.) However, it is important to note that “DOJ has seen no evidence (either during the course of the investigation or the enforcement of the Consent Decree) that indicates that permitting officers to view video footage before making a statement about low level uses of force undermines the accuracy of the reporting, documentation, or investigation of that use of force.” (DOJ Resp. at 7.) If such evidence emerges in the future, when the policy ...


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