Federal judge to Seattle City Council: Tread carefully with efforts to defund police or risk violating consent decree

The federal judge overseeing police reforms in Seattle fired a shot across the bow of the Seattle City Council and its efforts to defund the Police Department on Thursday, saying those actions could put the city at risk of running afoul of a federal consent decree.

U.S. District Judge James Robart said it appears the council, which imposed police budget and salary cuts in the wake of protests this summer, may have “lost sight of the fact” that the 8-year-old agreement between the city and Department of Justice (DOJ) is binding and must be followed.

Robart said he didn’t want to be put in the position of telling the council what to do and warned that its future decisions regarding defunding or stripping police of their responsibilities “need to be thought through carefully.”

Robart made his comments at a status hearing in which the new court-appointed monitor overseeing the DOJ-mandated reforms to the Seattle Police Department submitted his plan for 2021.

“I’m hearing a lot of words,” the judge said. “But I don’t measure progress by words. I measure it by action.”

The new monitoring plan and Thursday’s hearing made clear that the department will remain under court supervision for at least another year – a prospect the SPD has acknowledged and embraced, according to social media posts by interim Chief Adrian Diaz, who said unrest in the city last summer “presented unimagined challenges” for the department.

Robart also noted that the department is tasked with making these reforms without a permanent police chief at the helm, and the decision to wait until there’s a new mayor to fill the chief’s position permanently doesn’t help. And then there’s the pandemic, which has cut city revenues, he said.

“This is not a great time to be doing this,” the judge said, pointing out that the decision by Mayor Jenny Durkan not to seek reelection and the resignation of Chief Carmen Best have left a leadership vacuum that threatens the process.

The consent decree lays out specific training and policy goals aimed at reducing what the DOJ in 2012 found was a pattern and practice of excessive force by Seattle officers, and unsettling evidence of biased policing. Funding cuts could affect the department’s efforts to achieve those goals, in areas ranging from training, use of force, officer supervision and police stops to crowd control, crisis intervention and early intervention to identify troubled officers.

“The city is currently engaged in a process of re-imagining public safety,” the new monitor, Antonio Oftelie, wrote. The court, DOJ and monitoring team will be involved to “ensure that any innovations do not run counter to compliance with the consent decree.”

Oftelie, a Harvard fellow and professor, said his new monitoring plan sets deadlines and goals for the department in key areas, including the overall state of the city’s compliance with the 2012 consent decree; supporting the department’s efforts at innovation and risk management; and reimagining officer discipline and accountability, which has been a stumbling block for the department in the past.

The plan, Oftelie said, is designed to rebuild trust between the community and police following a summer of raucous protests and outrage over the death of George Floyd at the hands of Minneapolis police and other instances of excessive use of force by police.

The city had asked the court in early May to take the first steps toward dissolving the consent decree, arguing that it was in substantial compliance with sweeping reforms to SPD policies involving use of force, data collection, crowd-management, crisis intervention and officer training.

Robart earlier had found that the city had fallen out of compliance over the issue of officer discipline after an arbitrator reinstated a police officer fired for punching a handcuffed suspect. The chief’s ability to discipline an officer and have it stick remains an impediment to compliance.

Then came Floyd’s death on May 25. Officers responded to mostly peaceful protests with tear gas, blast balls, pepper spray and escalating violence.

Another federal judge found the department likely violated the civil rights of thousands of Black Lives Matter protesters, and then found the department in contempt when officers did it again and again.

The city withdrew the request to dissolve the consent decree in June, not long after the first of the clashes.

“I look on this summer as a pressure test” of the reforms to date, Oftelie said in an interview before the hearing. “We did not pass. Now, we have to identify what went wrong and work out how to fix it. There’s a lot of work left to be done.”

Oftelie described the coming 12 months as “a level-setting year” that, if the goals and deadlines set by his ambitious plan are met, could become a “bridge to ending the consent decree.”

But that depends on whether SPD, city leaders and the communities can pull in the same direction and come up with a common, workable vision for policing in Seattle, Oftelie said. He said he is hopeful, but acknowledges deep divides between the various players, which include the mayor’s office, the City Council, the Community Police Commission and various communities, businesses and organizations.

In the aftermath of the protests, “the parties and monitoring team have agreed that the development of revised SPD policies and programs are critical in at least three major areas: use of force, crowd management and active bystandership and peer intervention,” Oftelie wrote in a memo that accompanied the new monitoring plan.

That last bit, “active bystandership,” refers to a new program the department hopes will pierce the “thin blue line” that discourages police from reporting misconduct among officers. Over the next year, SPD’s officers will undergo training in a program that “recognizes that having officers actively step in and prevent misconduct or potential harm by one of their peers can help avoid or mitigate bad outcomes.”

Police are already required to report misconduct they know has occurred. The new program, called the Active Bystandership for Law Enforcement (ABLE) project out of Georgetown Law School, is aimed at “preventing misconduct in the first instance.”

The department must report to the monitor how many officers failed to complete the ABLE training.

The monitor’s report also acknowledges that the city is entering crucial contract negotiations with its police unions, the Seattle Police Managers Association (SPMA) and the Seattle Police Officers Guild (SPOG), both of which have filed unfair labor practice complaints against the city over its efforts to remove police discipline issues from collective bargaining.

Assistant U.S. Attorney Christina Fogg, representing the Justice Department, said that while the department fully supports the new monitoring plan, this summer’s police actions against protesters drew the DOJ’s attention and that the agency is monitoring a number of reviews of those incidents by the SPD and its accountability partners: the Office of Police Accountability (OPA), the Office of Inspector General (OIG) and the Community Police Commission.

One particular area of concern raised during the hearing was whether the breakdown in crowd control over the summer reflects the department’s overall adherence to sweeping use-of-force policies that are core to compliance with the consent decree. Fogg said the city’s progress between 2012, when the consent decree was signed, and 2020 has been “hard-earned, real and meaningful,” but that the agreement remains in effect and will continue until full compliance is met.

“It’s still here,” she said.

Seattle City Attorney Pete Holmes said the city supports and has worked cooperatively with Oftelie on the new monitoring plan and that the city’s “accountability structures” – the civilian-run OPA and OIG – “are living up to the challenge.” OPA received more than 19,000 complaints against police this summer and has conducted more than 140 investigations, according to the SPD.

“We can only restore public trust by fearlessly … getting to the root of what happened” this summer, Holmes said. “I believe the truth will come out, and that we will be stronger for it.”

In a post on the Seattle Police Blotter Wednesday night, SPD Chief Diaz said he embraced the monitoring plan and promised a “commitment to accountability and transparency.”

Diaz said in the five months since he was appointed interim chief he has fired four officers and ordered the department to “undertake a comprehensive review of how to ensure the department is not infiltrated by racism or extremism,” a move announced after the department revealed that at least five officers were in Washington, D.C., during the Jan. 6 insurrection at the U.S. Capitol.

Then, SPOG President Mike Solan came under fire for claiming that the “far left” and Black Lives Matter were responsible, in part, for the attack on Congress as it attempted to certify the election of President Joe Biden. Calls for Solan’s resignation have gone unheeded.

“This means engaging local, national and international experts on strategies for hiring, training and supporting employees so they are inoculated against the real trauma of this work that can make some vulnerable to radicalization,” Diaz wrote.