Case 2:12-cv-01282-JLR Document 585 Filed 10/15/19 Page 1 of 9

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

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ORDER REGARDING THE
CITY’S MOTION TO APPROVE
IT’S ACCOUNTABILITY
METHODOLOGY

Plaintiff,

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v.
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CITY OF SEATTLE,

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CASE NO. C12-1282JLR

Defendant.

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I.

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INTRODUCTION

On May 21, 2019, the court found that Defendant City of Seattle (“the City”) is

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partially out of compliance with the Consent Decree 1 regarding accountability. (5/21/19

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Order (Dkt. # 562) at 2.) As a result, the court ordered the parties “to formulate a

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The Consent Decree consists of the parties’ Settlement Agreement (Dkt. # 3-1), the
parties’ stipulation modifying their initial Settlement Agreement (Dkt. # 11), and the court’s
order approving and entering the modified Settlement Agreement (Dkt. # 13). The parties have
colloquially referred to these documents, together, as the “Consent Decree.” Thus, the court will
cite to these documents as the “Consent Decree” as well.

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methodology (1) for assessing the present accountability regime, and (2) for how the City

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proposes to achieve compliance.” (Id. at 13-14.) On August 15, 2019, Defendant City of

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Seattle filed a stipulated motion seeking the court’s approval of its accountability

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methodology. (Mot. (Dkt. # 576).) Plaintiff United States of America (“the

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Government”) does not object to the City’s proposed methodology. (See US Resp. (Dkt.

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# 574) at 3.) However, Amicus Curiae Community Police Commission (“the CPC”) 2

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does object and requests that the court deny the City’s motion. (See CPC Resp. (Dkt

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# 581)).

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Although the court ordered the parties to formulate and submit a methodology as

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described above, the court did not ask the City to seek the court’s “approval” of that

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methodology. (See generally 5/21/19 Order.) The import of the court’s order was not to

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“approve” a specific methodology but to set a deadline for the parties to formulate a plan

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to resolve the City’s non-compliance with the Consent Decree. Obtaining the court’s

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approval regarding accountability and returning to full and effective compliance with the

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Consent Decree is the ultimate issue on which the parties should focus. With this caveat

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in mind, and as more fully described below, although the court declines to “approve” the

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City’s methodology, it nevertheless authorizes the City to proceed subject to the court’s

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continuing supervision.

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On the same day that the parties executed the initial version of the Settlement
Agreement, they also executed a Memorandum of Understanding, which created the CPC.

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II.

ANALYSIS

Preliminarily, the court would like to address the Government largely unhelpful

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response to the court’s order. (See US Resp. (Dkt. # 574).) Instead of providing a

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substantive response on accountability and the City’s proposed methodology, the

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Government reiterated its position that considerations of police accountability “are

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outside the scope of the Consent Decree.” (Id. at 2.) Accordingly, the Government

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simply “defer[red] to the City to implement [the City’s] preferred approach.” (Id. at 3.)

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The court understands that this was the position of the Government prior to the court’s

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May 21, 2019, order. (See US Resp. to OSC (Dkt. # 528) at 3.) But the court ruled on

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that issue and concluded that the Government’s position was not well-taken (see 5/21/19

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Order at 5-10 (detailing the pertinent language within the Consent Decree and the myriad

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ways in which the parties have acquiesced to the court’s jurisdiction concerning the

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Seattle Police Department’s (“SPD”) accountability regime throughout these

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proceedings)), 3 and the Government’s penchant for relitigating the issue is unhelpful to

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the court and the process of reform.

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The court now turns to the City’s proposed methodology. (See Mot.; see also

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Katz Decl. (Dkt. # 577) ¶ 7, Ex. A (attaching final, proposed methodology).) First, the

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City forthrightly admits that its proposal addresses only the first portion of the court’s

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May 21, 2019, order—a methodology for assessing the present accountability regime—

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Moreover, in the Consent Decree, the parties expressly agreed that the court “has the
power, sua sponte, to issue orders . . . including, but not limited to, the construction . . . of [the
Consent Decree’s] terms and provisions . . . .” (Consent Decree ¶ 224 (as revised by the parties
and entered by the court at Dkt. ## 11, 13).)

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and leaves the issue of how the City proposes to achieve compliance until after the city

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completes that portion of the court’s order. (See Mot. at 3 (“With regard to part (2) of the

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Court’s Order, ‘how the City proposes to achieve compliance,’ the City will review the

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completed assessment, and with the input of the Monitor, [the] CPC, [the Office of the

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Inspector General (‘OIG’), the Office of Professional Responsibility (‘OPA’),] and other

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key stakeholders submit a plan to the Court based on that assessment.”).) To accomplish

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the first part of the court’s order, the City hired a group of subject matter experts with

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expertise in labor law, police discipline, and civilian accountability to develop a proposed

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methodology for assessing the City’s current accountability system. (See id. at 1.) The

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City represents that the experts will focus their assessment on: (1) calculation of the

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180-day timeline for disciplinary investigations; (2) lack of subpoena authority for the

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[OPA] and the [OIG]; and (3) the standard of review and quantum of proof in

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disciplinary appeals. (See id. at 2, 21.)

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In addition, the experts will also conduct a survey of accountability systems and

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gather data on disciplinary appeals in other “comparable police departments nationwide.”

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(Id. at 2, 21-22.) As discussed below, if the City intends to use the nationwide survey to

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justify its current accountability system (see Mot. at 17 (indicating that one purpose of

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the assessment is to “increase public confidence”)), then the exercise will be a failure,

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reform will be delayed, and full and effective compliance with the Consent Decree will

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recede further into the future.

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Finally, the City commits that its “top priorities” in the next round of collective
bargaining with the police unions will include: (1) calculation of the 180-day timeline for

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disciplinary investigations; (2) lack of subpoena authority for OPA and OIG; (3) the

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standard of review and quantum of proof in disciplinary appeals; and (4) features of

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grievance arbitration that affect public confidence, such as degree of transparency and the

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selection process for arbitrators. (Id. at 3, 24-26.) The City states that it can complete the

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survey and accountability assessment by November 29, 2019. (Id. at 23.)

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Although the Government offers no objection to the City’s proposal, the CPC

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urges the court to reject it. (See generally CPC Resp.) Many of the CPC’s objections

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center on the idea that the City’s proposed assessment is redundant of work the CPC has

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already done. (See CPC Resp. at 5-9.) The court acknowledges the CPC’s significant

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contributions over the life of the Consent Decree and the substantial reforms contained in

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the Police Accountability Ordinance, 4 which the City Council unanimously approved and

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the Mayor signed in 2017. For these reasons, the court understands that the CPC is

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highly invested in the Police Accountability Ordinance, which represents the culmination

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of the CPC’s work under the parties’ Memorandum of Understanding. 5 (See id. at 9

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(arguing that the Police Accountability Ordinance should be “the starting point” of any

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assessment).) However, the reality is that many of the reforms in the Accountability

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Ordinance did not survive the City’s collective bargaining with its police unions.

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Although some or all of the reforms contained in the Police Accountability Ordinance

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Seattle, Wash., Ordinance 125315 (June 1, 2017).

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See supra footnote 2.

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may be reinstated following additional collective bargaining in 2020 (see Mot. at 23-26),

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the court clarified in its May 21, 2019, order that it was “not ruling that—to be in full and

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effective compliance—the City must necessarily return to the provisions of the

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Accountability Ordinance . . . as those provisions existed prior to collective bargaining”

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(5/21/19 Order at 13). Indeed, the court acknowledged that there may be “other

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methods” for bringing the City into compliance on the issue of accountability. (Id.) In

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other words, new thinking on the issue may find pathways not yet considered that will not

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only satisfy the requirements of the Consent Decree but also survive collective

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bargaining. Full and effective compliance on accountability is not wedded to the Police

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Accountability Ordinance, and the court concludes that a methodical search for new

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ideas—as the City proposes—may further the work of reform.

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Further, as the City noted “[a]ll of the Consent Decree assessments conducted by

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the Monitor during Phase I were designed and conducted by national subject matter

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experts.” (Mot. at 17.) Thus, the City argues that a similar assessment of the current

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accountability system will enable the parties to “develop a methodology for measuring

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compliance with accountability” and setting corresponding standards. (Id.) The court

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agrees, and for this reason does not consider the assessment that the City proposes to be

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redundant of the CPC’s prior work. Indeed, in its May 21, 2019, order, the court

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specifically directed the parties to “formulate a methodology . . . for assessing the present

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accountability regime.” (5/21/19 Order at 13-14.) For these reasons, the court does not

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find the CPC’s objections based on redundancy to be well-taken.

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The CPC raises one concern, however, that mirrors a concern of the court. The

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CPC argues that a nationwide survey is not useful because “[e]quivalency to other cities

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is not a metric to determine compliance with the Consent Decree.” (CPC Resp. at 7

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(bolding omitted); see also id. at 8 (arguing that “Seattle should not aspire to the lowest

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common denominator”).) The court agrees. The court has already determined that the

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City is out of compliance with the Consent Decree on accountability. (See generally

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5/21/19 Order.) The City may not utilize its proposed nationwide survey as a stealth

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method of bringing an out-of-time motion for reconsideration of that ruling. If, however,

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the City intends to utilize the survey to formulate an appropriate compliance-related

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assessment process, develop new ideas or models related to accountability, and collect

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data that may be of assistance to the parties in collective bargaining, then the court

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believes that the exercise could be productive and further the cause of reform. The court

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is confident that the City will heed this warning, and thus, authorizes the City to

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implement its proposed methodology for assessing its present accountability regime.

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One issue remains: the role of the Monitor, as the court’s agent, in assessing the

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City’s compliance on accountability. The court remains hopeful that—except for

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accountability—the court will be able to discharge the remaining portions of the Consent

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Decree at the end of the two-year sustainment period—ending both the court’s and the

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Monitor’s role in assessing areas other than accountability. The court understands that

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the Monitor submitted a proposal to the parties concerning his role in assessing the City’s

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progress on accountability, which both the City and the Government rejected on grounds

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that accountability falls outside the duties assigned to the Monitor under the Consent

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Decree. As discussed above, the court takes a contrary view. 6 Accordingly, the court

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ORDERS the parties, in consultation with the Monitor, to submit a joint proposal from

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the parties (or, if necessary, separate proposals) concerning the Monitor’s role in

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assessing compliance with the Consent Decree on accountability. The court notes that

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once the two-year sustainment period is complete for all areas governed by the Consent

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Decree except for accountability, the OPA and OIG will presumably be fully operational

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and have primary responsibility for SPD oversight. Thus, the work of the Monitor in

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assessing accountability may at that time intersect with or overlap the work of the OPA

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and the newly created OIG. See, e.g., Accountability Ordinance § 3.29.240. The court,

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therefore, ORDERS the parties to consider how best to utilize these resources (the

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Monitor, the OPA, and the OIG) to assist the City in achieving compliance on

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accountability and the court in administering the Consent Decree in this final area and to

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include this analysis in their proposal(s).

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III.

CONCLUSION

Based on the foregoing analysis, the court authorizes the City to proceed with its

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proposed methodology for assessing the present accountability regime (Dkt. # 576). The

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court ORDERS the City to file its completed accountability assessment no later than

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November 29, 2019. (See Mot. at 23.) At that time, the City also must comply with the

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second portion of the court’s May 21, 2019, order and submit a “methodology . . . for

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The court notes that, in addition to his other duties, the Consent Decree states that “[t]he
Monitor will be an agent of the Court for purposes of assessing the City’s compliance with the
[Consent Decree].”. (See Consent Decree ¶ 172 (as modified by the parties’ stipulation and
entered by the court in Dkt. ## 11, 13).)

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how the City proposes to achieve compliance” on the issue of accountability. (5/21/19

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Order at 14.) The Government and the CPC may file their responses to the City’s

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accountability assessment and proposed methodology to achieve compliance no later than

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December 13, 2019.

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In addition, as described above, the court ORDERS the parties to submit a joint

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proposal (or, if necessary, separate proposals) concerning the Monitor’s role in assessing

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accountability compliance. The parties must submit their proposal(s) no later than

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November 29, 2019. The CPC may, but is not required to, comment on the parties’

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proposal(s) concerning the Monitor’s role no later December 13, 2019.

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Dated this 15th day of October, 2019.

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A

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JAMES L. ROBART
United States District Judge

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