Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 1 of 6 1 THE HONORABLE JAMES L. ROBART 2 3 4 5 6 7 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 13 14 15 No. 2:12-cv-01282-JLR UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER v. CITY OF SEATTLE, Defendant. 16 17 Plaintiff United States of America (“United States” or “DOJ”) hereby responds to the 18 19 20 Court’s May 21, 2019 Order Finding City of Seattle Partially Out of Compliance with the Consent Decree. (Dkt. 562) (“May 21, 2019 Order”). 21 In the May 21, 2019 Order, the Court found the City of Seattle (“City”) “has fallen 22 partially out of full and effective compliance with the Consent Decree” “in one of its additional 23 areas of responsibility—accountability.” Id. at p. 2. The Court directed the Parties, with 24 25 assistance from the Monitor and the Community Police Commission (“CPC”), to “formulate a 26 methodology for (1) assessing the present accountability regime, and (2) for how the City 27 proposes to achieve compliance.” Id. at pp. 13-14. In footnote 3 of the May 21, 2019 Order, 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 1 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 2 of 6 1 the Court also directed the Parties to submit a report addressing the Seattle Police 2 Department’s (“SPD”) use-of-force training related to defensive tactics, and whether that 3 training had fallen out of compliance with the Consent Decree and Constitution. Id. at p. 12 4 5 6 7 8 n.3. We address each of these issues in turn. I. The Proposed Methodology Following the May 21, 2019 finding that the City had “fallen partially out of full and effective compliance with the Consent Decree,” and the Court’s directive that “the City and the 9 10 United States, with the assistance of the Monitor and CPC, . . . formulate a methodology (1) for 11 assessing the present accountability regime, and (2) for how the City proposes to achieve 12 compliance,” id., at pp. 2, 13-14, the United States participated in several meetings with the City, 13 SPD, the Monitor, CPC, and other stakeholders concerning the City’s development of a proposed 14 15 methodology. See (Dkt. 566 at pp. 4-6) (describing the City’s timeline and meetings conducted 16 in developing a methodology ordered by the Court). 17 The United States maintains its position that the choices and decisions the City makes 18 with respect to its police accountability system (beyond those expressly stated in the Consent 19 Decree) are outside the scope of the Consent Decree. See Dkt. 422 at p. 2 (noting that the ten 20 21 initial assessments conducted by the Monitor constituted “all of the requirements of the Consent 22 Decree”); Dkt. 429 at p. 9 (explaining that all aspects of accountability required by the Consent 23 Decree, such as changes to the Office of Police Accountability, had already been completed); 24 Dkt. 291 at pp. 2-3 (highlighting that the Consent Decree “left many aspects of police 25 26 accountability to the discretion of the City and SPD,” that the Consent Decree was not intended 27 to “exhaustively address all aspects of SPD and the City’s police accountability systems” and 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 2 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 3 of 6 1 that DOJ’s “input is limited to [the accountability system’s] intersection with the negotiated 2 terms of the Consent Decree”). Furthermore, the United States defers to the City concerning its 3 obligations in conducting labor negotiations and the requirements for collective bargaining 4 5 mandated by Washington state labor laws. Cf. Consent Decree, ¶ 227 (“The City and SPD agree 6 to promptly notify DOJ if any term of the [Consent Decree] becomes subject to collective 7 bargaining consultation. DOJ agrees to work in good faith to accomplish the goals through 8 alternative means, if necessary.”). 9 10 Still, the United States has reviewed the City’s proposed methodology and has no 11 objection. The City’s methodology, including the work proposed and the anticipated outcomes, 12 is consistent with the requirements of the Consent Decree, and the United States therefore defers 13 to the City to implement its preferred approach. 14 15 16 II. Defensive Tactics Training In its Response to the Court’s December 3, 2018 Order to Show Cause, the United States 17 noted that testimony provided in the Officer Adley Shepherd arbitration raised a question 18 regarding whether certain training – namely, SPD’s “Defensive Tactics” training – included 19 content that ran counter to the requirements of the Consent Decree and resulting use of force 20 21 22 policies that have been approved by this Court and adopted by SPD. See Dkt. 528 at pp. 3, 7-9. Accordingly, the United States proposed re-attending the training to ensure that it 23 continues to be conducted in a compliant manner. Id. at 8-9. In its May 21, 2019 Order, the 24 Court agreed with this proposal and asked the parties to “ensure that the Monitor is also involved 25 26 in this re-examination.” See Dkt. 562 at p. 12 n.3. The Court also directed the parties to file a 27 report with the Court on this issue once the re-assessment is complete. Id. 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 3 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 4 of 6 1 Because the City of Seattle also agreed that a re-examination of Defensive Tactics 2 training was warranted and appropriate, it facilitated DOJ and the Monitor’s re-examination of 3 this training in advance of the Court’s May 21, 2019 Order. On March 21, 2019, representatives 4 5 from DOJ and the Monitoring Team attended the Defensive Tactics training course. See 6 Declaration of Christina Fogg at ¶ 2. The course involved hands-on instruction to SPD officers 7 regarding appropriate uses of force and tactics for facilitating such encounters as arrests of 8 resistant subjects. Id. It included instruction regarding placement of a handcuffed subject into a 9 10 patrol car. Id. At no point did any instructor state or in any way suggest that counter-assaultive 11 measures are always necessary when addressing an assaultive subject. Id. Indeed, 12 representatives from DOJ and the Monitoring Team in attendance at the training uniformly 13 agreed that all instruction provided during this training was consistent with SPD’s Court- 14 15 16 approved use of force policies. In follow-up to this training, DOJ also requested and received the written materials that 17 are used in the classroom portion of the Defensive Tactics training. Id. at ¶ 3. The written 18 materials contain statements consistent with the current handcuffing policy. Namely, the 19 materials state: 20 21 • Officers may only use reasonable, necessary and proportional force on restrained subjects (e.g. including handcuffed or contained in law enforcement vehicle); • Officers may use reasonable, necessary and proportional force to get subjects into or out of a law enforcement vehicle only after reasonable attempts to gain voluntary compliance have failed; and • Officers may only use force on restrained subjects that would foreseeably result in a Type II or Type III investigation under exceptional circumstances when the 22 23 24 25 26 27 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 4 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 5 of 6 1 2 subject’s actions must be immediately stopped to prevent injury, escape, or destruction of property. All such force shall be closely and critically reviewed. 3 Id. at Exhibit A (relevant portions of 2019 Operational Update). The United States and the 4 Monitor agreed that these statements are all consistent with the current, Court-approved use of 5 6 force policy found at Policy 8.200 #6, which became effective on January 19, 2019. 7 Accordingly, the United States is satisfied that SPD’s training on Defensive Tactics and, 8 in particular, with respect to force on restrained individuals, remains consistent with the 9 requirements of the Consent Decree and the related SPD policies. Id. at ¶ 4. The deputy 10 11 Monitor has authorized us to report that he agrees with the United States’ assessment. 12 13 14 DATED this 15th day of August, 2019. For the UNITED STATES OF AMERICA: 15 16 BRIAN T. MORAN 17 United States Attorney for the Western District of Washington ERIC S. DREIBAND Assistant Attorney General Civil Rights Division 18 19 s/ Christina Fogg 20 Kerry J. Keefe, Civil Chief Matt Waldrop, Assistant United States Attorney 21 Christina Fogg, Assistant United States Attorney 22 United States Attorney’s Office Western District of Washington 23 700 Stewart Street, Suite 5220 Seattle, Washington 98101-1271 24 Phone: (206) 553-7970 25 Fax: (206) 553-4073 s/ Jeffrey R. Murray Steven H. Rosenbaum, Chief Timothy D. Mygatt, Deputy Chief Jeffrey R. Murray, Trial Attorney United States Department of Justice Civil Rights Division Special Litigation Section 950 Pennsylvania Avenue, NW Washington, DC 20530 Phone: (202) 514-6255 26 27 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 5 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970 Case 2:12-cv-01282-JLR Document 574 Filed 08/15/19 Page 6 of 6 1 2 CERTIFICATE OF SERVICE I certify that on the 15th day of August, 2019, I electronically filed the foregoing with the 3 Clerk of the Court using the CM/ECF system, which will send notification of such filing to the 4 following attorneys of record: 5 6 Brian T. Moran bmoran@usdoj.gov 7 Christina Fogg christina.fogg@usdoj.gov 8 Matt Waldrop james.waldrop@usdoj.gov 9 Kerry Jane Keefe kerry.keefe@usdoj.gov Peter Samuel Holmes peter.holmes@seattle.gov Jeff Murray jeff.murray@usdoj.gov Ronald R. Ward ron@wardsmithlaw.com Timothy D. Mygatt timothy.mygatt@usdoj.gov Gary T. Smith gary.smith@seattle.gov 14 Hillary H. McClure hillarym@vjmlaw.com 15 David A. Perez dperez@perkinscoie.com 16 Anna Thompson annathompson@perkinscoie.com 17 Kristina M. Detwiler kdetwiler@unionattorneysnw.com 18 Merrick Bobb mbobb@pacbell.net 19 Bruce E.H. Johnson brucejohnson@dwt.com 20 Eric M. Stahl ericstahl@dwt.com 21 Paul A. Olsen paul.olsen@seattle.gov 10 11 12 13 22 23 DATED this 15th day of August, 2019. s/ Brittany Cirineo Brittany Cirineo, Legal Assistant (Contractor) 24 25 26 27 28 UNITED STATES’ RESPONSE TO THE MAY 21, 2019 ORDER Case No. 2:12-cv-01282-JLR - 6 UNITED STATES ATTORNEY 700 STEWART STREET, SUITE 5220 SEATTLE, WASHINGTON 98101 (206) 553-7970