SEATTLE CONSENT DECREE 2013-2020 For more than seven years, the Monitoring Team and I, as Monitor, worked with District Court Judge James Robart to oversee implementation of the consent decree and to help the Seattle Police Department (SPD) achieve full and effective compliance. This Monitor and Monitoring Team’s job thus is done. Because I am no longer Monitor, I can now speak my mind more freely. 1 Let me then first speak soberly about the recent demonstrations and protests. SPD’s performance left many observers disappointed and crestfallen, if not disturbed profoundly by what looked like multiple instances of excessive force, as if lessons learned and techniques trained under the consent decree were lost, or, at least, set aside. It is thus the right time for a new team and new monitor to help the SPD rebuild itself, return to full, effective, and sustained compliance, and move forward, perhaps in new directions, preferably under a new, well-experienced, and progressive outside Chief. I move forward from being the Monitor with appreciation for the Monitoring Team and the contributions it made to the reform of the Seattle Police Department and the city of Seattle. The Monitoring Team should take pride in the scale and depth of reform. This Team went farther in a shorter time to reach the most thoroughgoing reform that has been possible under any of the prior consent decrees to date. Yet as much credit as we would like to take, we must also acknowledge a human tendency to look upon one’s own successes myopically. So this Monitoring Team (“Team”) must take care not lose sight that the major component of success was the SPD itself which did most of the hard work to turn itself around. SPD deserves the victor’s laurels, and, 1 I write this document solely to reflect my own opinions. I no longer speak as monitor, and nothing I say should imply Judge Robart’s agreeing or disagreeing with me. 2 after recovery from events of the last months, will rightly deserve those laurels again. I was appointed Monitor on April 26, 2013. As I look back on the last seven years, I recall how difficult and frustrating the first two years turned out to be. Indeed, it is notable that the Team achieved reform within five years from then, given the intensity of the opposition the Team faced during the first two. We had a hostile mayor and an angry, resentful police department run tightly by a small coterie of men who had worked together for years to thwart reform. Rank-and-file as well as executives looked with disdain on the US Department of Justice (DOJ), refusing to acknowledge a pattern or practice of excessive force and the possibility of biased policing. Police beatings and shootings, exemplified by the killing of woodcarver John T. Williams (the tenth anniversary of whose death was August 30), led to the community as a whole, represented by more than 20 civil rights and civil liberties organizations, to write for redress to US Attorney Jenny Durkan, who in turn called upon the Civil Rights Division of DOJ to intervene. Without an advocate like Jenny Durkan, the chain of events leading to the consent decree and ultimate reform of the police department might not have occurred, and we gladly extend to her our ongoing appreciation. We also recognize and appreciate the contributions of her staff, including her successor, Annette Hayes, and Kerry Keefe, Mike Diaz, and Christina Fogg. When I was nominated as Monitor, I was immediately seen as a threat and was strongly opposed by the Mayor, the SPD, as well as by the police officers’ union. Led by Tim Burgess,2 Sally Clark, Nick Licata, Bruce Harrell, and others, the City Council, by an eight to one vote, nonetheless approved my selection on behalf of the City and, with the Tim Burgess is always the adult in the room. He is s a wise counselor and mentor, an able mediator, a farseeing prognosticator, and the indispensable man in any public role. 2 3 strong backing of City Attorney Pete Holmes3 and DOJ,4 I was nominated and ultimately selected by Judge Robart as Monitor. For a while, I was watched by the Administration hoping to find something to make me look bad, but those efforts soon stopped.5 Use of force policy. The strong Monitoring Team was not cowed by the cold SPD reception, and the first major achievement of the reform process, a new use of force policy that comported with the requirements of the consent decree, came about with the technical assistance and drafting skills of the Team. That use of force policy opened new ground that has become common as time has gone on—the policy recognized that the most important job of the police is preserving the sanctity of life, that force needs to be objectively reasonable, necessary, 6iand proportional The City throughout has been represented extraordinarily well by its able and honorable City Attorney, Pete Holmes, a man of conviction and compassion, and the admirable temperament to remain steady and capable in the face of conflicting demands. He has served Seattle with distinction. 3 The staff of the Special Litigation Section of the Civil Rights Division— among whom were Steve Rosenbaum, Jonathan Smith, Tim Mygatt, Michelle Leung, Emily Gunston, Sharon Brett, Puneet Cheema, and Jeff Murray— advocated in Seattle in the most honorable tradition of great civil rights lawyers. 4 Steve Rosenbaum, who has led that section on and off for most of the past years, has an indelible record of excellence and fortitude in defense of the rights of all people living in America to be free of police brutality and racial injustice. He has protected the mentally ill and disabled. He has brought to account the failures of prisons, jails, juvenile facilities, hospitals, nursing homes, and police and sheriff’s departments failing to afford individuals their inalienable rights. He and appointees Eric Holder, Loretta Lynch, Jocelyn Samuels, Tom Perez, and Vanita Gupta rightly deserve our thanks and appreciation. There were those Egyptian cotton sheets I bought at Costco and a corkscrew that I purchased, not realizing that anything that facilitated the drinking of wine with the monetary support of Seattle was impermissible. 5 6 Necessary: “Necessary” means that no reasonably effective alternative to the use of force appeared to exist and that the amount of force used was 4 to the threat, and that efforts to de-escalate, buy time, negotiate, and warn need to precede the use of force.7 Also, of great importance was the insistence of the Monitoring Team that the definition of deadly force be broader than shooting with a firearm alone. Consequently, the definition was expanded to include serious head injuries. A corollary of the definition of the use of force was that force would no longer be evaluated solely when the force was applied. Rather, SPD would examine the chain of events that led to the force and ask whether different avenues or techniques could or should have been applied to obviate the use of force or result in a less serious or injurious use of force being applied. This approach was first articulated by former NYPD Deputy Commissioner of Training Jim Fyfe, who died in 2005. This important corollary became the touchstone of force analysis advocated by the Monitor across the country and in Seattle. Seattle’s Use of Force Board, as structured by the SPD with the technical assistance and drafting of the Team, uses that wider perspective ultimately to produce thoroughly analytic and thoughtful examination of shootings and serious use of force.8 To be sure, from time to time it stumbles, but the successes significantly outweigh its failures. reasonable to effect the lawful purpose intended. SPD Police Manual §8.050. 7 8 The SPD did not believe at first that Monitoring Team lawyers could help police officers analyze force, and the SPD loudly and repeatedly moaned that the Monitoring Team’s Peter Ehrlichman was being disrespectful and abusive. Putting aside the obvious ironies inherent in police making such complaints, Peter, although not the most gentle and politic individual, nonetheless was masterful and very smart, teaching a great deal about dispassionate analysis, logic, cross examination, and respectful skepticism to all those willing to listen. 5 The Monitoring Team prevailed on the Department to adopt best practice when dealing with the aftermath of an officer- involved shooting. The SPD Manual now articulates best practice, as quoted below 9 Co-drafted by SPD and the Team, this new policy took a long jump over prior police practice. Importantly, an officer should not have the ability to review videotapes of an incident prior to giving testimony as to the officer’s best recollection. Of great importance also was that years before the horrendous death of George Floyd, the Team insisted over the objection of an SPD use of force trainer that all chokeholds and neck holds be banned, and they were. As soon as Judge Robart approved the SPD’s new use of force policy, 125 police officers filed suit in federal court against Attorney General Eric Holder, Seattle Mayor Ed Murray, Seattle City Attorney Pete Holmes, the Seattle police chief, and me on claims of the use of force policy endangered officers and should be thrown out. The court dismissed the lawsuit and, in September 2017, the appellate court confirmed, concluding that the SPD’s use of force policy was constitutional under the Second Amendment. Following delivery of a brief public safety statement, both shooter officer(s) and witness officers should be immediately sequestered. • All officers should be separately transported back to Headquarters or the station. All other necessary measures should likewise be implemented to preclude the shooter and other involved officers from discussing the incident by the shooter and other involved officers. • Representatives sent to the scene to provide moral support to the involved officer(s) should not be permitted to discuss the details of the shooting itself, the events leading up to the shooting, or anything else related to how the shooting occurred. • A union representative or lawyer should be provided as quickly as reasonable to SPD officers who request such assistance or representation. Those representatives should be informed of and agree to be compliant with the SPD’s policy against sharing incident information with the involved officer prior to obtaining of the involved officer’s oral statement from the involved officer. • The voluntary or compelled interview of the involved officers, including the shooter, should be fully recorded on videotape or its equivalent prior to the involved officer being relieved of duty. 9 6 Use of Force Declined. Once the new use of force policy was put into practice, and police officers were trained, force began to drop rapidly. As we noted in the Ninth Systemic Assessment, “overall use of force by the SPD is down – both across time under the Consent Decree and compared to the time period studied by the original DOJ investigation. Overall, use of force has gone down even as officer injuries have not gone up and crime, by most measures, has not increased.… The significance and importance of this finding cannot be understated, as this report makes clear. It represents a singular and foundational milestone on SPD’s road to full and effective compliance – and represents Seattle crystallizing into a model of policing for the 21st century.” Ninth Systemic Assessment, June 2017. The trend continued, and force maintained its downward slide. DOJ reported that between January 2017 and April 2019, SPD experienced a 63 percent decline in force from eight years prior, before the consent decree began. Fox.com, Nov. 23, 2019. The Team should take pride in the part it played in bringing about the dramatic drop in force and in the number of persons who thereby did not suffer pain, injury, serious impairment, or death. Of course, much greater accolades go to the women and men of the SPD who learned how better to stop the use of excessive force. Data and data analysis. The Team learned early on that the SPD lacked the data with which to manage the risk of police misconduct. As we noted in our First Semiannual Report, SPD’s then-existing capacities to track, analyze, and use data were, at best, weak. The data produced by the IT Department was error-ridden and inadequate: The SPD simply did not have the data required to implement the Consent Decree, to manage unconstitutional conduct, to respond to the Monitoring Team’s requests for data in order to measure progress, to enable the Court to assess the speed and good faith of implementation, or to respond to routine inquiries by City Council for data needed for legislative purposes. 7 In our Second Semiannual Report, the Team repeated its criticism of the frequently erroneous and incomplete information about officer performance. The Team was blunt: “the absence of timely, trustworthy data [ was] a substantial impediment to progress, efficient management, and effective policing. A business intelligence system properly conceived and developed, [was] pivotal to SPD’s ability to hold itself accountable for constitutional policing and to test whether performance outcomes [were] consistent with the Settlement Agreement’s goals and ends. The Monitor cannot certify full and effective compliance until the Business Intelligence System is producing the data needed and the SPD is using that data in a manner consistent with the Settlement Agreement.” The Monitor faced strong opposition to developing a business intelligence system, particularly because although the SPD was incapable of doing it in-house, it would not so concede until an outside independent consulting firm confirmed the SPD’s incapacity. At that point, a highly qualified firm was selected to build the Data Analysis Platform or DAP. As we noted in February,2019, the DAP can measure officer performance on a historical and comparative basis; can analyze patterns, trends, and statistics on a historical and longitudinal basis; and can discover failures of supervision, discipline, and training. Its analytical work and reporting improved public transparency into core consent decree areas. The DAP is not only impressive when compared to where the SPD was at the commencement of the consent decree but in comparison to most major police departments today. 8 iThe Disciplinary System. As early as June 2014, in our Third Semiannual Report, the Monitoring Team recognized that the disciplinary system the was a failure. "Events during the last six months have made clear that SPD’s disciplinary system is byzantine and arcane. Providing SPD officers and the Seattle community with a rational, reasonable disciplinary system will require swift and sustained effort. It is difficult to envision the SPD reaching full and effective compliance with the Consent Decree without a well- functioning system for imposing discipline on police officers found to have violated SPD policy." The Team agreed to remain available for technical assistance with respect to the discipline system. The Department never requested that technical assistance despite our conclusion that "an irrational and convoluted system cannot be allowed to systematically undo the accountability that a host of other policies and practices are intended to foster." Judge Robart correctly saw how the disciplinary system failed in the Adley Shepherd case. The consent decree will not end until the "bizarre and arcane" discipline and accountability systems are fixed. This will perforce necessitate statesmanship and compromise by the police unions to restore proper management prerogatives. Stop and Frisk. Starkly and sadly, the likelihood that an individual will be stopped in the first instance and, when stopped, will be frisked, varies substantially by race —even after controlling for other potential influences like crime and neighborhood. Certainly, when comparing the incidence of stops by race, the share of Black subjects far outweighs their representation in the Seattle population. The Team used a variety of statistical methods to account for whether these potential influences and significant explanations might account for or explain any racial disparities. Thus, the Monitoring Team did more than simply compare who was stopped to the overall Seattle population. It went deeper and expressly tested whether some of the race-neutral reasons typically provided for why law enforcement activity might affect persons of some races more than others do. The Team nonetheless discovered that the racial disparity with respect to who is stopped and who is frisked in Seattle cannot be explained in terms of underlying societal or social disparities in crime, demographics, or socioeconomic factors manifesting in neighborhood or geographic trends. Even after incorporating those factors, an individual’s race alone helps to predict the likelihood of being stopped and the likelihood of being frisked by an SPD officer. Additional study by the Department and others to determine the underlying causes of the disparity and how such disparities might best be addressed is still necessary. The phenomenon of Black youth in particular being repeatedly stopped must end. Chief Kathleen O'Toole On June 23, 2014, Kathleen O'Toole became Chief of the SPD. Thereafter, there was a sea change in the attitude of the SPD executives toward the consent decree, the court, and the Monitor. Chief O'Toole, under the direction of Mayor Murray, had as her overriding goal full implementation of the consent decree as rapidly as practicable. She achieved that goal. A major milestone was reached on January 10, 2018 when federal Judge James Robart found that the department was in "full and effective" compliance with the terms of the Consent Decree. The SPD then entered a two-year Sustainment period. If after those two years it had maintained full and effective compliance, the SPD could expect the consent decree to be over. Chief O'Toole and the Monitor were most often of one mind and were in constant communication. As Monitor, I spoke with the Chief on close to a daily basis. When I was in Seattle, as I was every 2 to 3 weeks, I would meet the Chief for breakfast along with other members of the Team, and we would frequently meet her also for dinner. Likewise, I met with the Mayor and shared meals with him and his partner. Unquestionably, Mayor Murray had the best of intentions and helped the SPD to achieve substantial compliance. He thus realized one of the principal goals of his administration, At the end of the day, however, no one on the city side was more critical to this process than Kathy O'Toole. She was the pivot around which all the progress turned. If there ever was an ideal of a progressive police chief who understood and embraced reform at the same time as she could put herself in the shoes of the rank-and-file officer and understand him or her completely, it is Kathleen O'Toole. Following Kathy was Chief Carmen Best, Seattle’s first African American Chief, a warm, engaging person with a charming public presence and the enthusiastic support of the Black community and its leaders. Following efforts to cut the SPD budget and her pay, she recently resigned. For the Monitor and the Team, the acme of the last seven years was the Judge's finding that the SPD had achieved substantial compliance. This is thus the right time for my monitoring and this Monitoring Team to end. There are new challenges for a new team to assist Judge Robart. The SPD is at its nadir. It desperately needs a new chief from outside the organization to put it back together. It needs leadership. It can get back to the place where Kathy O'Toole left it and Carmen Best took over. Many of the same excellent people are still there. A wise chief of police will gather them up; empower them; bring in new good people, sworn and civilian, from around the country to leadership positions, like Chief O’Toole did with Mike Wagers; and get the job done. The SPD must move forward from the recent protests. There is undoubtably waste and inefficiency in the SPD that should be eliminated. There are roles that persons other than sworn officers can perform without a law enforcement orientation. But 50 percent or even some lesser cuts to the police budget smack of ideology rather than the reality of maintaining the peace. Nonetheless, the SPD set itself up to criticism. Its performance during the recent demonstrations and protests betrayed a lack of adequate preparation and training, an apparent absence of an overall strategic plan or foreknowledge how to deal with violent interlopers without cutting off legitimate First Amendment activity by peaceful protesters, even if loud and challenging; inadequate subtlety and sophistication about the use of powerful and injurious nonlethal weaponry; a seeming lack at times of sensitivity to the First Amendment role of journalists and the moral and ethical role of medics; a willingness to call something a riot when it might have met some technical definition but was a far cry from a rebellion or stampede or even a melee merely so the SPD could use tear gas, a chemical agent banned for use in warfare after World War I. There should be an outpouring of Seattle gratitude to federal Judge Richard Jones, who, upon an extraordinarily powerful showing by plaintiffs represented exceptionally ably by David Perez, established fair and meaningful rules of engagement for less-lethal weaponry during the protests, and to federal Judge James Robart, who at a critical time did not allow a misguided City Council ordinance to deprive the SPD of the use of less-lethal weaponry under the rules established by Judge Jones. A final word about the endless squabbling at the top of Seattle leadership: As Rodney King said, "Can we all just get along?" The Mayor, City Council, City Attorney, CPC, and other community groups and organizations must really try to work together and not at cross purposes. I will not miss the endless jockeying and some runaway egos. Finally, the Monitoring Team expresses its thanks, admiration, and affection for Judge Robart, who guided the implementation of the consent decree and was always there to get the train back on the rails when it was about to slip off. He will get the consent decree fully achieved, letter and spirit. He always spoke plainly and forthrightly, and litigants learned he always meant what he said. He is a wise and exemplary Article III judge. The members of the Monitoring Team Merrick Bobb, Monitor 2013-20 Ronald Ward, Assistant Monitor 2013-20 Jeffrey Yamson, Executive Assistant 2013-20 Marnie Carlin MacDiarmid, Esq. 2013-20 Peter Ehrlichman, Deputy Monitor 2013-19 Pat Gannon, Senior Police Expert 2013-19 Joseph Brann, Senior Police Expert 2013-15 Nicholas Armstrong, staff 2013-14 Christopher Moulton, staff 2013-15 Julio Thompson, Esq. 2013-19 Ian Warner, Esq. 2013-16 Ellen Scrivner, PhD 2013-19 Matthew Barge, Deputy Director 2013-18 Brian Center, Esq. 2014-19 Joseph Doherty, Prof. and staff 2015-17 Hassan Aden, Deputy Monitor 2016-19 Karlene Goller, Esq. 2016-19 Jim Newton, Writer 2018-20 Andrea Yang, Esq. 2016-17 Luis Perez, Accountant 2014-17 Bruce E H. Johnson, Esq. Davis Wright Tremaine 2019 Florence Finkle, staff 2019 Elana Dean, staff 2019 Meg Olsen, staff 2015-20 Carole Carona, staff 2013-18 Melissa Bretz, staff 2016-18 Tammy Hooper, Police Expert 2019 Tim Shugrue, Accountant 2017-19