Hon. Ken Schubert, Chief Civil Judge Applic. for Writ of Review or Certiorari Noted for: 1/10/2019 1 2 3 4 5 6 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON FOR KING COUNTY 7 8 CITY OF SEATTLE, SEATTLE POLICE DEPARTMENT, Petitioner, 9 10 11 12 No. APPLICATION FOR WRIT OF REVIEW OR CERTIORARI vs. SEATTLE POLICE OFFICERS’ GUILD, ARBITRATOR JANE WILKINSON and ADLEY SHEPHERD 13 Respondents. 14 I. INTRODUCTION 15 Petitioner City of Seattle, Seattle Police Department (“SPD”) respectfully requests that a Writ 16 of Review or Certiorari issue to Arbitrator Jane Wilkinson directing her to fully certify to this Court the 17 records and files of the Disciplinary Review Board (“DRB”) regarding the appeal and decision in the 18 matter of Officer Adley Shepherd. Officer Shepherd’s employment with SPD was terminated after he 19 punched and fractured facial bones of a handcuffed suspect as she sat in the back of a patrol car. The 20 Seattle Police Officer’s Guild (“SPOG”) challenged the termination pursuant to its collective bargaining 21 agreement (“CBA”) with SPD. The matter proceeded to a hearing before a DRB comprised of an 22 SPD officer appointed by SPOG, a management representative, and a neutral arbitrator, Jane 23 Wilkinson. Following a five-day hearing in June 2018, Arbitrator Wilkinson issued the DRB’s APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 1 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 Opinion and Award (the “Decision”). The Decision confirmed that Officer Shepherd violated SPD 2 policy, but nevertheless reduced the discipline from termination to a 15-day suspension. Because 3 this Decision is contrary to the established public policy against use of excessive force in policing, 4 SPD now seeks a writ of review or certiorari vacating the Decision. II. 5 6 A. GROUNDS FOR APPLICATION The Incident 7 Officer Shepherd encountered Miyekko Durden-Bosley around 2:30 a.m. on June 22, 2014. 8 See Ex. A to the Declaration of Sarah Tilstra, at 1. Officer Shepherd responded to a domestic 9 violence call in which another woman alleged that Ms. Durden-Bosley had threatened her son. Id. 10 at 2. Ms. Durden-Bosley arrived at the scene after Officer Shepherd. Id. at 3. After extended, 11 unpleasant interactions among several people, “Officer Shepherd exclaimed, ‘My patience is done. 12 It’s done. It’s, it’s over. So, somebody’s going to go to jail. Who’s it going to be?’” Id. He taunted 13 Ms. Durden-Bosley, saying “we can do eenie, meenie, miney” before arresting her, placing her in 14 handcuffs, and escorting her to a patrol car. Id. at 3-4. While sitting in the car, Ms. Durden-Bosley 15 kicked at Officer Shepherd while yelling an expletive. Id. at 4. Officer Shepherd stepped back and, 16 about two seconds after being kicked, dove into the car and punched Ms. Durden-Bosley’s right eye 17 with his fist.1 Id. at 5. 18 As a result of the blow to her face, “Ms. Durden-Bosley suffered a serious, but not permanent 19 injury to her right eye,” described in the medical report as “a very small, minimally displaced orbital 20 floor fracture (right) along the infraorbital canal and similarly minimally displaced medial wall 21 fracture right eye.” Id. at 6. Both Officer Shepherd and Ms. Durden-Bosley were taken to 22 23 1 In-car video of the interaction is available at https://www.youtube.com/watch?v=xdZkFO_5jvA (last viewed December 13, 2018). APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 2 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 Harborview Medical Center. Id. B. Investigation and Termination 2 3 The Office of Professional Accountability (“OPA”) investigated Officer Shepherd’s conduct, 4 and sustained charges that he violated SPD policies prohibiting unreasonable use of force, prohibiting 5 use of force against restrained subjects except in exceptional circumstances, and requiring use of de- 6 escalation tactics. See Tilstra Decl., Ex. B at 10-13. SPD prepared a recommendation for Officer 7 Shepherd’s termination (id. at 14), and Officer Shepherd met with then-Chief of Police Kathleen 8 O’Toole for a Loudermill2 hearing. Ex. A at 7. Chief O’Toole was disturbed by Officer Shepherd’s 9 unwillingness to acknowledge that he did anything wrong when punching Ms. Durden-Bosley. Id. at 7- 10 8. Chief O’Toole concluded that termination was the only appropriate level of discipline, and noted that 11 the violation of SPD’s policy on treatment of subjects in handcuffs was serious enough to warrant 12 termination. Ex. B at 17. C. SPOG’s Appeal and the DRB’s Decision 13 14 SPOG appealed Officer Shepherd’s termination. See Tilstra Decl., Ex. C at 10. The issues 15 before the DRB were (1) whether Officer Shepherd used excessive force in violation of SPD’s use of 16 force policy, and (2) if so, whether discharge was the appropriate penalty. See Ex. A at 18, 21. After 17 the June hearing, the parties submitted briefs on the issues. See Exs. B and C. Arbitrator Wilkinson 18 issued the Decision on November 18, 2018, which concluded that “Officer Shepherd violated the 19 City’s use of force policy, particularly 8.100 subsection 2 (which allows force on a handcuffed suspect 20 only to prevent escape, injury or destruction of property) when he struck Ms. Durden-Bosley in the 21 22 23 2 Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 547-48, 105 S. Ct. 1487, 84 L. Ed. 2d. 494 (1985) (public employee has due process right to pre-termination hearing). APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 3 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 eye, causing injury.”3 Ex. A at 21. However, she also concluded that several mitigating factors 2 (including testimony that Officer Shepherd acted as trained, the lack of progressive discipline, and the 3 length of his employment) required reinstatement of Officer Shepherd, coupled with a 15-day 4 suspension. Id. at 22-31. The City contends that returning Officer Shepherd to duty as a police officer 5 in these circumstances is a violation of Washington public policy. III. 6 AUTHORITY FOR ISSUING WRIT OF REVIEW OR CERTIORARI 7 A superior court has the power to issue statutory or constitutional writs of certiorari.4 Chapter 8 7.16 R.C.W., Const. art. IV, § 6. “Both the statutory and constitutional writs share a common purpose: 9 to enable limited appellate review of a judicial or quasi-judicial action when the remedy of appeal is 10 unavailable.” Coballes v. Spokane County, 167 Wn. App. 857, 865, 274 P.3d 1102 (2012). Here, 11 there is no right to appeal the Decision, as the CBA provides that the DRB’s decision is final and 12 binding, and that additional appeals through the grievance process or the Public Safety Civil Service 13 Commission are foreclosed. See Tilstra Decl., Ex. E at 9. Because there is no plain, speedy, or adequate 14 remedy at law (see RCW 7.16.040), a writ is therefore the only avenue for review.5 15 This Court should grant a writ because the Decision violates the public policy against excessive 16 use of force in policing. Washington courts recognize that an arbitration award arising out of a collective 17 18 19 20 SPD’s revised use of force policy arose from a Consent Decree entered into between SPD and the U.S. Department of Justice (“DOJ”), and approved by a federal district court judge in 2012. See Ex. A at 14-15; see also Tilstra Decl., Ex. D. DOJ believed SPD engaged in a pattern or practice of constitutional violations regarding police use of force. See Ex. D, ¶ 15. SPD’s revised use of force policy was approved by the court monitor and took effect in January 2014, months before the incident in question here. See Ex. A at 15, Ex. B at 31-32. 3 4 21 King County Local Rule 98.40 sets forth the requirements for an application for a writ. These requirements are met in this application and the pleadings filed herewith. 5 22 23 A statutory writ is available when an inferior board or officer, exercising judicial functions, exceeds its jurisdiction, acts illegally, “or to correct any erroneous or void proceeding, or a proceeding not according to the course of the common law.” RCW 7.16.040. A constitutional writ of certiorari requires the petitioner to allege facts that, if true, show that the lower tribunal’s decision was arbitrary and capricious or illegal. Clark County Pub. Util. Dist. No. 1 v. Wilkinson, 139 Wn.2d 840, 846, 991 P.2d 1161 (2000). Given the public policy violation, SPD has met the requirements for either type of writ. APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 4 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 bargaining agreement can be vacated if it violates public policy. Kitsap County Deputy Sheriff’s Guild 2 v. Kitsap County, 167 Wn.2d 428, 436-36, 219 P.3d 675 (2009). The court treats the decision as if it 3 were part of the agreement, and will vacate the decision if it violates an “explicit, well defined, and 4 dominant public policy, not simply general considerations of supposed public interests.” Int’l Union 5 of Operating Engineers, Local 286 v. Port of Seattle, 176 Wn.2d 712, 721, 295 P.3d 736 (2013) 6 (internal quotations omitted). If an arbitrator’s award is so lenient that it does not impose sufficient 7 discipline to deter future violations of the public policy at issue, it must be vacated. See id. at 723. 8 Here, there is an explicit, well-defined, and dominant public policy against the excessive use 9 of force in policing. This public policy is drawn from numerous sources. First, the Fourth 10 Amendment of the U.S. Constitution requires that a police officer’s use of force be reasonable. 11 Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989). Second, the 12 Consent Decree entered into between SPD and the DOJ, pursuant to the DOJ’s findings that it had 13 reasonable cause to believe that SPD had a pattern or practice of using unnecessary or excessive 14 force in violation of the Fourth Amendment and the Violent Crime Control and Law Enforcement 15 Act of 1994, 42 U.S.C. § 14141, requires the use of force to be consistent with Graham, and 16 specifically prohibits reportable use of force against handcuffed suspects except in certain 17 circumstances. See Ex. D, ¶ 70. Third, SPD’s own use-of-force policies, revised in January 2014 18 pursuant to the Consent Decree, require objectively reasonable force and prohibit the use of physical 19 force against handcuffed suspects except in exceptional circumstances. See Tilstra Decl., Ex. F. 20 Fourth, Initiative 940, approved by Washington voters in November 2018, includes a requirement 21 that police officers receive violence de-escalation training, further codifying the public policy 22 against excessive use of force. See Tilstra Decl., Ex. G. Finally, other jurisdictions have recognized 23 the public policy against excessive force. See, e.g., City of Richfield v. Law Enforcement Labor APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 5 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 Servs., Inc., 910 N.W. 2d 465, 474-75 (Minn. Ct. App. 2018) (“It is undisputed that in Minnesota, 2 there is a well-defined and dominant public policy against police officers using excessive force.”), 3 rev. granted June 19, 2018. These sources establish the explicit, well-defined, and dominant public 4 policy against excessive use of force in policing. The Decision to reinstate an officer who punched 5 in the face a handcuffed suspect seated in a patrol car was so lenient as to violate this public policy. 6 This Court should grant SPD’s request for a writ. 7 III. APPLICATION FOR WRIT OF REVIEW OR CERTIORARI AND PRAYER FOR RELIEF 8 SPD asks this Court to issue a Writ of Review or Certiorari to Arbitrator Wilkinson directing 9 her to return to this Court her records and files relating to the Decision. SPD further asks that this Court, 10 having reviewed the record, enter judgment in favor of SPD, conclude that reinstatement of Officer 11 Shepherd violates the well-established Washington public policy against excessive use of force in 12 policing, and vacate the Decision. 13 IV. ORDER 14 SPD submits a Proposed Order with its application for a Writ of Review or Certiorari. 15 DATED this 14th day of December, 2018. 16 PETER S. HOLMES Seattle City Attorney 17 22 s/ Sarah Tilstra SARAH TILSTRA, WSBA #35706 PAUL OLSEN, WSBA #29873 Assistant City Attorneys Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 Ph: (206) 684-8200 sarah.tilstra@seattle.gov / paul.olsen@seattle.gov 23 Attorneys for Petitioner 18 19 20 21 By: APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 6 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200 1 CERTIFICATE OF SERVICE 2 I certify under penalty of perjury under the laws of the State of Washington, that on this date, 3 I electronically filed the foregoing document, along with a Case Information Cover Sheet, Notice of 4 Court Date, and supporting Declaration of Sarah Tilstra, with the Clerk of the Court using the ECR 5 E-filing Application, and caused a true and correct copy of those same documents, along with a 6 Proposed Order, to be served on the following in the manner(s) indicated: 7 8 9 10 11 12 Hillary McClure Vick, Julius, McClure, P.S. 5506 Sixth Ave. S., Suite 201A Seattle, WA 98108 hillarym@vjmlaw.com Via email Jane Wilkinson, Arbitrator 4677 Oakridge Rd. PMB 211 3 Monroe Parkway, Suite P Lake Oswego, OR 97035 jane.wilkinson@gmail.com Via email and U.S. Mail Adley Shepherd c/o Hillary Hillary H. McClure Vick, Julius, McClure, P.S. 5506 6th Ave. S., Suite 201A Seattle, WA 98108 hillarym@vjmlaw.com Via email 13 14 15 16 17 DATED this 14th day of December, 2018, at Seattle, Washington. 18 19 20 s/ Kim Fabel KIM FABEL Legal Assistant 21 22 23 APPLICATION FOR WRIT OF REVIEW OR CERTIORARI - 7 Peter S. Holmes Seattle City Attorney 701 Fifth Avenue, Suite 2050 Seattle, WA 98104-7097 (206) 684-8200