Can the Seattle Police Department Consent Decree Be Fixed?

by Paul Faruq Kiefer

(This article was previously published on PubliCola and has been reprinted with permission.)

On Tuesday, the Seattle City Council rejected a proposal to cut $2.83 million from the Seattle Police Department (SPD) budget, bringing an end to a months-long debate and raising questions about whether federal oversight is the right path toward reforming the department.

For almost a decade, SPD has been under federal oversight through an agreement with the U.S. Department of Justice called a consent decree. The consent decree, which Seattle entered in 2012, was supposed to ensure that SPD corrected a pattern of using unjustified force and racially biased policing, among other reforms.

But after nearly a decade, a growing contingent within city government and activist circles are questioning whether the consent decree is capable of changing SPD for the better.

Earlier this week, Councilmember Lisa Herbold was unable to pass legislation cutting millions from SPD's budget thanks in large part to opposition from SPD and the court-appointed monitor tasked with tracking reforms, Dr. Antonio Oftelie. Herbold initially proposed cutting $5.4 million from the police budget to offset SPD overspending in 2020, and to channel resources to next year's participatory budgeting program.

When the plan finally fizzled on Tuesday, many who support additional cuts to the department's budget blamed Oftelie and the consent decree. "We are seeing the consent decree being wielded as an obstacle to community demands to divest from policing and invest in community safety," said Anglica Chzaro, a University of Washington professor and organizer with the activist group Decriminalize Seattle. "When in reality the surest way to address issues of racial profiling, use of force, and other violations of constitutional rights by cops is to reduce police power and contact and ensure that communities have what they need to be safe, survive, and thrive."

Herbold has occasionally joined those critics. During a public safety committee hearing on May 25, for example, she commented that she "often feels hampered by the consent decree because it requires us to get court approval before making any changes."

Oftelie, however, argues that dismissing the consent decree as an obstacle overlooks its unused potential. At its most basic level, Oftelie told PubliCola, the agreement establishes "a floor" for new policies, better training, and more 'constitutional' policing. "Everything can be built on that floor. If Seattle wants to be innovative and transformative, there's room," he said. Those reforms could include the creation of a larger-scale civilian unit to respond to mental health crises, or stricter regulation of police officers' off-duty work.

And while the consent decree outlines a way to add new language to an agreement that reflects newer priorities for reform, Oftelie says that Seattle hasn't taken advantage of that provision.

"Seattle, as a city, has never come forward to the monitoring team to offer a new solution to a problem," he said. "Some parties in Seattle say, 'we can't do something because the consent decree won't allow it.' Or they'll say, 'we want the consent decree to do something that it's not doing at the moment.' My sense is that if the city could design some alternative response solutions and had plans to show how those were real solutions, then the court and DOJ would be amenable to that."

In order to propose a revision to the consent decree, the mayor and the council would need to agree about the goals and details of the change. Some simpler changes, like replacing out-of-date and ineffective technology used to flag officers who are more likely to use excessive force, would only require the city to identify better software; others, like adjusting the consent decree to require a large-scale civilian crisis response program, would require lengthier debates and pilot programs to produce a workable proposal for the court and DOJ.

Seattle Mayor Jenny Durkan's office did not respond to PubliCola's request for comment about whether her office would support any changes to the consent decree. Herbold, however, said that she is open to proposing changes to the consent decree — so long as the changes aren't up to the council or the mayor's office.

Instead, Herbold argued that Seattle's Community Police Commission would be better suited to gather feedback from the public about how to re-work the agreement, and that the community groups who initially advocated for the consent decree —including the NAACP of Seattle-King County, Northwest Immigrant Rights Project, and United Indians of All Tribes — should take a lead role in deciding how the agreement should change.

"If the plans for amending the consent decree are generated inside the halls of city government, we might prompt some people to wonder if we're just trying to get out from under federal oversight," Herbold said. "There's still so much division in the community about the usefulness of the consent decree, so if we were to seek modifications to it, it should be led by stakeholders who initiated the consent decree."

PubliCola has reached out to the Community Police Commission to ask whether they think amending the consent decree could create new opportunities for reform.

There are limitations to what changes the city could propose to the consent decree. For instance, from Oftelie's perspective, reducing SPD's budget without offering a viable civilian alternative would violate the consent decree's guidelines for providing "constitutional policing" — a central pillar of the agreement, he said.

"Constitutional policing doesn't mandate a particular size for the police department — that's for the city to grapple with," Oftelie said. But police departments can only shrink so much, Oftelie says, before their ability to train officers and "do real community-based policing" is compromised. As a result, he said, Seattle would likely see more cases in which police officers overreact or fail to de-escalate, not fewer.

Oftelie doesn't believe that any civilian crisis response model exists that could replace police officers at large scale, and argues that in cities that are trying to replace some officers with mental health workers or crisis intervention teams, those civilians "want police as backup in case something goes sideways. So this discussion of reducing police workload with civilian responders becomes a theoretical exercise."

Chzaro, from Decriminalize Seattle, argues that the consent decree's emphasis on "constitutional policing" is a fundamental problem with the agreement.

"Consent decrees are based on legitimizing policing so long as departments meet a certain set of metrics [of] 'constitutional policing,'" she said. "But the Constitution, as interpreted by a Supreme Court that has been eroding constitutional protections in the context of policing for decades, permits many forms of racial profiling and discriminatory policing, use of force, and killings. This is why efforts to reduce police harm must not be limited to the limited protections provided in federal law."

Seattle remains partially out of compliance with the consent decree because of terms in the most recent contract with the Seattle Police Officers' Guild (SPOG), the city's largest police union, that undercut an array of oversight reforms passed by the council in 2017.

But Oftelie is still unsure how or whether the court can play a role in the next round of negotiations with SPOG, which are supposed to start by the end of 2021 at the earliest. For example, even though the federal district court judge who oversees the consent decree, Judge James Robart, might refuse to release the city from the agreement if the next union contract fails to address all the accountability problems in the previous one, Oftelie believes that he can't dictate the terms the city agrees to in its next contract with SPOG,

Many in Seattle's police accountability circles are frustrated that key questions about what the consent decree does and does not allow are still unresolved nearly a decade after the agreement went into effect. For Oftelie, the solution is relatively straightforward: the mayor and city council need to propose changes to the consent decree itself. And for others in Seattle's police accountability sphere, the consent decree is inherently too inflexible to support serious changes to how the city approaches public safety.

"Seattle could achieve the goals set out in the consent decree by decreasing police contact, power, and funding," said Chzaro. "We need to stop throwing good money after bad. We need to stop investing millions in investigations, failed reforms and consent decree oversight that could be spent on building genuine and lasting safety through community-based safety strategies and supportive services."

For now, the Seattle Police Department is still out of compliance with a binding federal agreement, and the consent decree isn't going anywhere.

Paul Faruq Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work with KUOW, North Carolina Public Radio, and The Progressive magazine, and he is currently working on a podcast for KUAF in Fayetteville, Arkansas. Paul reports on police accountability for PubliCola.

📸 Featured Image: Screenshot of Dr. Antonio Oftelie speaking to the Seattle Community Police Commission in May 2021. Photo courtesy of PubliCola.