Federal Judge Concerned about Future of Seattle's Consent Decree

by Paul Faruq Kiefer

(This article was originally published at PubliCola and has been reprinted under an agreement.)

U.S. District Court Judge James Robart convened a hearing Thursday to address how Seattle's path to compliance with the federal consent decree has changed in the wake of last summer's racial justice protests. The consent decree — the agreement between the City and the Department of Justice (DOJ) that empowers the federal court to oversee reforms to the Seattle Police Department (SPD) — dates back to 2012, when the DOJ investigation found that SPD officers frequently used excessive force without consequences.

In Thursday's hearing, Robart made clear that Seattle's path toward an end to federal oversight is still murky and that SPD's response to protests last year added another obstacle. To end federal oversight, the City first needs to achieve compliance with the terms of the consent decree and remain in compliance for two years; Robart uses input from the City, accountability experts, and a court-appointed monitoring team to decide what "compliance" entails.

The City has nominally met Robart's standards before: In 2019, the judge ruled that Seattle was in "full and effective" compliance with the terms of the consent decree. But less than a year later, Mayor Jenny Durkan and the Seattle City Council approved a contract with the Seattle Police Officers Guild (SPOG) — the largest police union in the city — that undercut an array of reforms to SPD accountability. After outcry from accountability advocates, Robart decided that Seattle no longer met the court's expectations for police accountability and discipline, leaving the City partially out of compliance with the consent decree.

In his ruling, Robart directed the City Attorney's Office (CAO) to submit plans to restore the accountability reforms by July 2019; more than a year later, the City has yet to share those plans with the federal court. Nevertheless, in early May 2020, City Attorney Pete Holmes filed a motion to cut back the court's oversight of SPD, contending that SPD had "transformed itself" under the federal court's oversight. But Robart never ruled on the City's motion to end some portions of the consent decree because the City withdrew the motion shortly after the killing of George Floyd by Minneapolis police officers on May 25 sparked citywide protests.

During Thursday's hearing — the first since the start of those protests — Robart emphasized that the City is still out of compliance with the consent decree in the areas of discipline and accountability. He added that the federal court is now reviewing another possible breach of the consent decree: Whether SPD's protest response leaves the City out-of-step with the court's standards for appropriate use of force.

Holmes, who represented the City at the hearing, told the court that the protests were a "stress test" for SPD's accountability structure. However, Holmes pointed to a letter published by Interim SPD Chief Adrian Diaz on Wednesday — entitled "Surpassing Reform: SPD's Commitment to Accountability and Transparency" — as evidence of the "spirited tenacity of SPD to provide safety and constitutional policing even in the midst of the pandemic." Holmes also expressed his belief that the accountability agencies — the Office of Police Accountability (OPA), Office of the Inspector General (OIG), and the Community Police Commission (CPC) — are "living up to the test" presented by SPD's protest response.

Robart echoed Holmes' praises of the accountability agencies, particularly OPA's investigations into thousands of protest-related police misconduct allegations and OIG's review of systemic problems in SPD's protest response. He added that his praise may be out of step with public opinion, commenting that the work of the OPA and OIG is "never going to be enough, and nobody's going to agree on whether they made the right decision or not."

The court-appointed monitoring team, led by Dr. Antonio Oftelie since September of last year, submitted a work plan on Thursday morning to track the implementation of reforms to SPD and the efficacy of the City's accountability structure in 2021. As SPD prepares to rework its use-of-force and crowd management policies, and while the OPA and OIG conduct follow-up investigations into protest-related police misconduct and systemic policy problems, the monitoring team will act as an auditor, said Monisha Harrell, the court's deputy monitor.

"Our ultimate goal is to not exist," she told PubliCola on Thursday. "If the system is working well, then we aren't needed. So we look for cracks in the system."

Harrell added that the monitoring team won't be reviewing individual OPA investigations but instead looking at whether the office's decisions "build community trust." She also noted that the monitoring team is working with the CPC to determine how the commission can more effectively take community feedback and pass that feedback to SPD. The work plan does not name any specific deliverables related to the disciplinary reforms undercut by the 2018 SPOG contract, and the City's plans for returning to compliance with the court's expectations for accountability and discipline remain to be seen.

Robart also told the court that it will be difficult to ensure SPD commits to reforms when the City's leadership is in flux and while the department is led by an interim chief.

"We're going into a stormy period," he said, "and we need some steady hands."

He added that the City's expired contracts and upcoming negotiations with the two police unions — the Seattle Police Management Association (SPMA) and SPOG — add even more uncertainty to the future of police reform in Seattle.

"I've watched labor contracts undo a lot of positive work," he added.

The judge reserved some criticism for the City Council's support of a 50% cut to SPD's budget as well as cuts to both SPD staffing and salaries in 2020. Robart contended that the council did so without conferring with SPD leadership and that the decisions risked undermining Seattle's compliance with the consent decree even further.

"When they decide to take matters into their own hands in contravention of the consent decree," he said, "they drag me into a situation that I don't want to be in, which is telling them, 'No, you can't do that.'"

Councilmember Lisa Herbold, the chair of the Council's Public Safety & Human Services committee, told PubliCola Thursday evening that the Council did work with SPD during last summer's budget deliberations and that the council ultimately chose not to reduce the department's budget by 50%.

"The budget we passed included sufficient funding to support SPD's hiring plan for 2021," she said. "So if you're thinking about the consent decree and adequate policing, we provided sufficient funding to do what SPD says they can do."

Herbold added that Durkan, not the Council, instituted the 2020 hiring freeze for SPD that prevented the department from replacing the record-breaking number of officers who retired or transferred to other police departments at the end of last summer. Herbold said she reached out to the court's monitoring team in the fall to share SPD's projections for attrition and hiring for 2020 through 2022.

"I asked if the attrition would put the City at risk of violating the consent decree," she said, but she didn't get a response.

The next step in Seattle's path toward an end to federal oversight is official approval of the monitoring team's work plan, for which both Robart and Holmes voiced enthusiastic support. The federal court will consider the work plan for approval on Feb. 19.

Paul Faruq Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work withKUOW,North Carolina Public Radio, andThe Progressivemagazine, and he is currently working on a podcast forKUAFin Fayetteville, Arkansas. Paul reports on police accountability for PubliCola.

Featured image by Alex Garland.