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United States v. City of Seattle

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

May 21, 2019

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

          ORDER FINDING CITY OF SEATTLE PARTIALLY OUT OF COMPLIANCE WITH THE CONSENT DECREE

          JAMES L. ROBART UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On November 5, 2018, the court held a status conference in response to Defendant City of Seattle's (“the City”) notification that it had concluded labor negotiations with the Seattle Police Officer's Guild (“SPOG”) and entered into a tentative agreement. (See 11/5/18 Hearing Tr. (Dkt. # 499); Min. Entry (Dkt. # 498); 10/23/18 Order (Dkt. # 485); 10/26/18 Order (Dkt. # 487); City Notice (Dkt. # 484).) On December 3, 2018, the court ordered the parties to show cause “whether . . . [the City] has failed to maintain full and effective compliance with the Consent Decree.”[1] (OSC (Dkt. # 504) at 1.) The City, Plaintiff United States of America (“the United States”), and Amicus Curiae Community Police Commission (“CPC”) filed responses to the court's order. (See City Resp. (Dkt. # 512); U.S. Resp. (Dkt. # 528); CPC Resp. (Dkt. # 531); see also City Reply (Dkt. # 543).) In addition, on May 15, 2019, the court held a hearing on its order to show cause in which the parties and the CPC participated.

         For the reasons stated below, the court finds that the City has fallen partially out of full and effective compliance with the Consent Decree. The court does not find that the City has fallen out of compliance in any of the areas listed in the Phase II Sustainment Plan that are covered by the Audits (see Phase II Sustainment Plan (Dkt. # 444) at 4-10), but notes that a number of key assessments need to be completed. The court nevertheless remains hopeful that the City can complete these assessments and discharge these areas of the Consent Decree within the two-year sustainment period. The court, however, does find that the City is out of compliance with the Consent Decree in one of its additional areas of responsibility-accountability. (See Id. at 12-13.) With respect to this area, the City will need to come back into full and effective with the Consent Decree, and then maintain that compliance for two years.

         II. BACKGROUND & ANALYSIS

         On December 16, 2011, the United States Department of Justice (“DOJ”) released a report announcing that it had found reasonable cause, under the Violent Crime Control and Law Enforcement Act of 1994, 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141), to believe that the Seattle Police Department (“SPD”) had engaged in a pattern and practice of excessive force. (See DOJ Report (Dkt. # 1-1); see also Stip. Find. & Concl. (Dkt. # 14) ¶ 6.) On July 27, 2012, the United States filed a complaint against the City based on that report. (See Compl. (Dkt. # 1).) On the same day, the City and the United States filed a joint motion asking the court to approve a Settlement Agreement and a Stipulated Order of Resolution. (Stip. Find. & Concl. ¶ 12; see also Joint Mot. (Dkt. # 3) (attaching the Settlement Agreement).) On September 21, 2012, the court preliminarily approved the Settlement Agreement, along with certain agreed modifications. (See 9/21/12 Order (Dkt. # 13).) The modified agreement and order is now commonly referred to as “the Consent Decree.” See supra n.1. The Consent Decree requires SPD to comply with two phases: (1) SPD must attain “full and effective compliance” with the Consent Decree (“Phase I”), and then (2) SPD must sustain that compliance for two years (“Phase II”). (Consent Decree ¶¶ 229-30.)

         On January 10, 2018, the City and SPD reached an important milestone. The court entered an order declaring that they were in “full and effective compliance with the Consent Decree, ” fulfilling Phase I. (FEC Order (Dkt. # 439) at 16.) Nevertheless, on December 3, 2018, the court issued an order to show cause “whether the court should find . . . the City . . . has failed to maintain full and effective compliance.” (OSC at 1.) The court stated that two considerations prompted its order: (1) the City's completion of collective bargaining with SPOG, and (2) the decision by the Disciplinary Review Board (“DRB”) to overturn former Chief of Police Kathleen O'Toole's decision to terminate SPD Officer Adley Shepherd. (Id. at 5.) The court stated that the “decision to reinstate an officer who had violated three provisions of . . . SPD's use-of-force policies when he punched a handcuffed subject in the face while she was sitting in a patrol car, and the new [Collective Bargaining Agreement's (“CBA”)] rejection of reforms in the Accountability Ordinance that would have substantially changed the process and standard of review by which the decision was made” caused the court “to question whether the City and . . . SPD can remain in full and effective compliance with the Consent Decree.” (Id. at 8.)

         The court's January 10, 2018, “full and effective compliance” ruling was based, in part, on the Monitor's conclusion in his 2017 Compliance Status Report that the City had achieved “initial compliance” with assessments that the Monitor and the parties formulated for this purpose. (See FEC Order at 3-5 (citing 3d Year Monitoring Plan (Dkt. #195) and Compliance Status Report (“CSR”) (Dkt. # 416)).) The assessments include: (1) force reporting and investigation, (2) the Force Review Board (“FRB”), (3) community confidence, (4) the Office of Professional Accountability (“OPA”), (5) crisis intervention and the intersection with the use of force, (6) supervision, (7) Type II force investigation, (8) the Early Intervention System (“EIS”), (9) use-of-force, and (10) stops, searches, and seizures. (See FEC Order at 4 n.3; see also CSR at 3-17.)

         Although the ten assessments are “clearly important, ” they “do not constitute all the requirements of the Consent Decree.” (CSR at 3.) Indeed, in his Report, the Monitor expressly identified accountability and the conclusion of labor negotiations as additional areas of focus or concern for assessing SPD's compliance. (CSR at 17-18.) At the time that the court declared the City to be in “full and effective compliance” with the Consent Decree, the City had presented its original Accountability Ordinance for court approval. (See 7/11/16 Stip. Mot. (Dkt. # 297); 6/21/17 City Br. (Dkt. # 396).) Because the Ordinance at that time was still subject to alteration during the City's collective bargaining process with SPD's labor unions, the court declined to rule on a version of the Ordinance that was not the “final product.” (9/7/17 Order (Dkt. # 413) at 3; see also FEC Order at 15.) Indeed, the court's approval is still pending. Nevertheless, in adopting the Accountability Ordinance, the City indicated its intent to discard the old accountability regime. Thus, the original, unmodified Accountability Ordinance was the only accountability benchmark by which the court could assess the City's Phase I compliance in that area at that time.

         In its order finding the City in full and effective compliance with the Consent Decree, the court specifically warned:

[T]he court takes seriously, and so should the parties, the many ongoing concerns raised by the Monitor in his Compliance [Status] Report. If the City and SPD fail to satisfactorily address these concern, they may well fail to sustain the progress they have made. The court will not hesitate to restart the two-year sustainment period if SPD falls below the full and effective compliance standard set forth in the Consent Decree.
The court notes that the City still has not . . . concluded labor negotiations with all of SPD's unions. . . . The court previously indicated that it will not grant final approval to the City's new police [A]ccountability [O]rdinance until after collective bargaining is complete. . . . If collective bargaining results in changes to the [A]ccountability [O]rdinance that the court deems to be inconsistent with the Consent Decree, then the City's progress in Phase II will be imperiled.

(FEC Order at 14-15 (citations and footnote omitted).)

         In its order to show cause and in this order, the court is particularly concerned about provisions related to officer discipline and accompanying appeals that are found in the original Accountability Ordinance that SPOG's CBA altered. In its response to the court's order to show cause, the United States notes that the terms of SPOG's CBA related to the use of arbitration in an appeal and the burden of proof applied therein “are materially unchanged from the time period in which DOJ investigated SPD and the Consent Decree was entered.” (U.S. Resp. at 3.) The United States argues that because the Consent Decree did not expressly mandate changes to either of those specific items, the court should not find that the CBA's reversion to the old arbitration scheme and abandonment of critical aspects of the Accountability Ordinance conflicts with or undermines the Consent Decree. (See id.) In making this argument, the United States misapprehends both the ...


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