Policing Reform and Other Public Health Necessities in the City of Seattle
With the advent of social justice movements like Black Lives Matter in recent years, the actions and conduct of police officers are increasingly commanding attention in the public consciousness. More specifically, the exponential rise in widespread use of cellphone cameras has made it significantly easier for the average American citizen to document instances of police misconduct. Many of these incidents have subsequently been circulated social media as viral videos. These videos and stories have attracted massive public outcry, starting contentious conversations about appropriate police conduct, the actual role law enforcement officers play in maintaining the rule of law, and how police officers guilty of misconduct should be disciplined or otherwise held accountable. Social justice activists have remembered many of the victims of police brutality as symbols of the immediate need for radical policy reform. In fact, it is not uncommon for community organizations’ reform campaigns and slogans to invoke the names of individuals killed by police officers — Trayvon Martin, Eric Garner, Tamir Rice, Philando Castile, to name a few. [1]
Citizens have, at their disposal, only a few tools in the legal system by which they can seek legal redress for incidents of police misconduct. One such tool is 42 U.S.C. Section 1983 (hereinafter §1983), a federal civil rights statute that provides a mechanism for individuals to claim a private cause of action and bring lawsuits against law enforcement officials for violations of federally protected rights. Several cases involving §1983 litigation have been decided by the Supreme Court. The Supreme Court, in considering these cases, has explored how police officers act under color of law and the limits of qualified immunity that law enforcement personnel enjoy. The history of §1983 litigation, particularly in the Ninth Circuit, follows a particular jurisprudential trend. That is, individual actions of misconduct tend to serve as more “successful” grounds upon which to bring a §1983 claim, rather than policies established within the police department or by the local municipality. In general, the jurisprudence also tends to favor sensible policies governing police conduct that considers the interest of public safety. Moreover, §1983 litigation is complex and difficult to navigate. The kind of relief that can be granted is often times limited. While §1983 litigation has the capacity to touch on procedural considerations regarding many constitutional rights, it seems to be very difficult to effect substantial change at the policy level through this mechanism.
Because of these shortcomings, I argue that there is merit to turning to other tools which seem to be better equipped to engage with issues of broader scope — police misconduct, policy reform, and community justice. Some have suggested that one such tool can be found in the recent history of consent decrees between the Department of Justice’s Civil Rights Division and municipalities. These consent decrees are often used to settle lawsuits against police departments associated with Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994. In particular, §14141 grants the U.S. Department of Justice (DOJ) the authority to investigate any police department that exhibit a pattern and practice of police misconduct. Today, the DOJ has three standard mechanisms by which it can pursue local policing reform. First, the DOJ can write a “technical assistance letter,” in which local agencies are encouraged to undertake specific revisions to departmental policies. Second, the DOJ can establish a “memorandum of understanding,” (MOU) with the local police department; such MOUs are not enforceable in court and do not result in official findings of wrongdoing. Finally, and perhaps most importantly, the DOJ — via the Office of the Attorney General — can file a lawsuit against the offending jurisdiction. [2]
Many cities that feature prominently in discussions about consent decrees are also places where communities of people of color and the poor tend to have a healthy (and, in my opinion, justified) distrust of the local police. In many ways, the deep history of police misconduct and brutality has undermined much of the legitimacy that law enforcement purports to wield as an institution dedicated to public service. [3] The response to this fraught relationship, at least within the realm of legal scholarship, has been to emphasize the importance of procedural justice. More specifically, many scholars argue that improving and ensuring procedural justice [4] — that is, fairness and equitable treatment in police officers’ interactions with the citizens of the communities they serve — is a vital aspect of maintaining police legitimacy in the eyes of the public as a whole. [5] Even outside the context of policing, the notion of procedural justice as fairness and a (theoretically) vital component of our justice system has existed for quite some time. [6]
Proponents of the consent decree mechanism argue that local law enforcement agencies, in entering into a consent decree with the DOJ, proactively reform their policing practices to ensure that their officers comply with certain standards of practice in their interactions with citizens of the community. Even if the pressure to maintain procedural fairness is imposed by the federal government by way of the consent decree (and the understanding that the local agency could be sued for failing to comply adequately), local police departments could reasonably expect to hold a substantial interest in investing in the same standards as well. Supporters of consent decrees have also begun to connect consent decrees with §1983 litigation, claiming that the investigative findings that result from the implementation of §14141 can positively influence the outcomes of §1983 litigation.
As discussed above, §1983 litigation tends to be more successful in seeking legal redress in response to civil rights violations that occur on the individual level. Part of the difficulty that §1983, as a mechanism for relief, faces in bringing suit against local governments is that it can be challenging to prove actual damages. However, §14141 investigations have the potential to be useful in successfully litigating §1983 claims. [7] Not only can §14141 investigations be used to assist the litigation of certain §1983 claims, the use of consent decrees seems to supplement §1983 as a private cause of action well, by virtue of their ability to address patterns and practices of police misconduct on the larger scale of the police department and its hiring, training, and procedural standards. [8]
Despite the potential of consent decrees as a community justice tool, I have some doubts as to their efficacy, particularly in the City of Seattle. The Seattle Police Department is no stranger to allegations of misconduct, excessive use of force, and improper policing policies. In fact, as recently as 2017, the city of Seattle faced intense scrutiny in the wake of the shooting and killing of Charleena Lyles, an African American woman who suffered from mental health issues, by two SPD police officers in front of her children. [9]
In 2012, the City of Seattle entered into a settlement agreement with the Department of Justice. This agreement stipulated that the city would create a temporary “Community Police Commission” that would be mandated to seek out and encourage local community input as a way of influencing the development or implementation of certain police department policies. Additionally, the Commission was tasked with developing actionable recommendations that the Seattle Police Department and the Seattle City Council could enact as tangible reforms. According to the City of Seattle’s website, the mission statement of the Community Police Commission declares that the Commission “listens to, amplifies, and builds common ground among communities affected by policing in Seattle. We champion policing practices centered in justice and equity.” [10]
Following the MOU and settlement agreement, the City of Seattle officially established the Community Police Commission (CPC) by ordinance and the Commission began work in 2013. The responsibilities listed in that ordinance included community engagement, accountability, public education and outreach, investigation, officer training, and transparency and public reporting. A few years later, the Seattle City Council voted unanimously to pass legislation regarding the Seattle Police Department that was designed to “bolster civilian and community oversight of the department’s internal disciplinary system” by way of establishing the civilian Office of Police Accountability (OPA) which would supervise internal investigations and made the CPC permanent, while simultaneously vesting greater authority and powers into the Commission. [11]
Unfortunately, the next year, the Seattle City Council voted 8–1 to approve a new labor contract for Seattle Police Department officers. During the negotiation process for the new contract, the CPC was a vocal opponent to the passing of the contract, arguing that the proposed contract included language that would make it more difficult to fire or dismiss officers for their conduct. Additionally, “[t]he commission also expressed frustration with the fact that the contract keeps open multiple avenues for officers to appeal discipline, which creates the potential for officers to pick and choose the path of least resistance. . . .the main point of contention is in the language that states the contract supersedes the 2017 reforms wherever there may be conflict.” [12] The CPC was not the only critic of the proposed SPD contract, with “24 community groups and the Seattle King County NAACP” all arguing that “the agreement undermined hard-fought reforms included in police-accountability legislation passed by the council last year.” [13]
After the City Council voted to approve the new SPD Contract, U.S. District Judge Robart was set to review the contract to assess its constitutionality and to evaluate the contract’s provisions do not conflict with the consent decree. Judge Robart had been presiding over the city’s compliance with the consent decree ever since it was signed in 2012 and has been particularly concerned with SPD officers’ use of excessive force and evidence of biased policing. Just recently, having completed his review of the contract, Judge Robart has declared that, by virtue of the new contract, the Seattle Police Department has fallen partially out of compliance with the consent decree on the basis of reforms centering police accountability. Judge Robart found issues with the appeal process for fired and/or disciplined police officers, the 180-day statute of limitations on internal investigations, and the limiting of subpoena powers granted to the Office of Police Accountability, which heads internal investigations. [14] Part of Judge Robart’s analysis involved the case of a Seattle Police Department officer who had been recommended for reinstatement after being fired for punching a woman while she was handcuffed; Judge Robart has since questioned whether the new contract with the Seattle Police Officer’s Guild (SPOG) would shield officers from being held accountable for unnecessary, unjustified, or excessive use of force.
Given these developments, it seems clear that the utility of consent decrees is limited. The CPC in Seattle established as a result of a §14141 investigation, DOJ lawsuit, and subsequent consent decree has found some success in pushing accountability and oversight mechanisms into the Seattle Police Department. In fact, according to criminologist and police reform scholar Samuel Walker, the Seattle consent decree and subsequent formation of the CPC is the first instance in the history of policing in the United States where community stakeholders had a formalized and institutionalized role in the development of law enforcement policies. Walker notes that the CPC managed to unify community stakeholders, local groups, and police representatives that resulted in a use of force, de-escalation policy that is now recognized as a best practice policy. [15] However, “despite praise from scholars and positive reports regarding the Seattle CPC’s involvement in shaping the direction of the policies implemented as part of the consent decree reform process, genuine concerns remain regarding the actual power granted to communities to shape police policies.” [16]
Pointing out these significant limitations in using legal mechanisms like §1983 litigation or consent decrees to address constitutional violations of citizens’ rights is important because policing practices, particularly in Seattle, pose a public health risk as well. We know that people of color, transgender people, the poor, and youth encounter police misconduct and face violations of their civil and constitutional rights at disparate rates. [17] This is particularly true for communities where policing policies are especially colored by the practice of Terry stops. [18] However, I would argue that policing practices in Seattle directly harm many other communities: houseless folks, people with disabilities, those seeking treatment for their addictions, and sex workers. Properly addressing the injustices these communities face will involve pursuing social change by other means outside of the law — constructing public housing, designing universally accessible and accommodating public spaces, establishing safe consumption sites, and stopping the arrests of houseless folks and sex workers. Turning away from arrests, incarceration, and violent encounters with police officers need to go hand in hand with social movements and programs that can actively and uncompromisingly seek community justice, health, and well-being.
ENDNOTES:
[1] Devon Johnson, Deadly Injustice: Trayvon Martin, Race and the Criminal Justice System (2015).
[2] Zachary A. Powell, Michele B. Meitl & John L. Worrall, Police Consent Decrees and Section 1983 Civil Rights Litigation, 16 Criminology & Public Policy 575, 605 (2017) at 576.
[3] Tom R. Tyler, Jeffrey Fagan & Amanda Geller, Street Stops and Police Legitimacy: Teachable Moments in Young Urban Men’s Legal Socialization, 11 Journal of Empirical Legal Studies 751, 785 (2014).
[4] Lawrence B. Solum, Procedural Justice, 78 S. Cal. L. Rev. 181, 322 (2004).
[5] Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 Law & Society Review 513, 548 (2003).
[6] John Thibaut, Laurens Walker, Stephen LaTour & Pauline Houlden, Procedural Justice as Fairness, 26 Stan. L. Rev. 1271, 1290 (1974).
[7] Matthew J. Silveria, An Unexpected Application of 42 U.S.C. 14141: Using Investigative Findings for 1983 Litigation, 52 UCLA L. Rev. 601, 638 (2004).
[8] The question of hiring is also pertinent to a related discourse on the issue of police diversity. More specifically, a more racially and ethnically diverse police force may improve issues of police misconduct, procedural injustices, and civil rights violations. However, ensuring a more diverse and representative police force would be an insufficient solution as a singular tactic designed to address unfairness in law enforcement policies and practices. Further research should explore police diversity as a potential response to patterns and practices of police misconduct involving racial discrimination, especially where vehicles for legal redress like §1983 litigation have failed. This question remains: should police diversity and representation of people of color and racial or ethnic minorities in police departments or law enforcement agencies be included in the scope of consent decrees or §14141 investigations? See also Devon W. Carbado & L. Song Richardson, The Black Police: Policing Our Own, 131 Harv. L. Rev. 1979 (2017).
[9] Matthew Haag, Fatal Police Shooting of Seattle Woman Raises Mental Health Questions, N.Y. Times (June 20, 2017), https://www.nytimes.com/2017/06/20/us/seattle-police-shooting-charleena-lyles.html.
[10] About Us — Community Policing Commission, Seattle.gov, https://www.seattle.gov/community-police-commission/about-us#visionandmission
[11] Steve Miletich, Seattle City Council Passes Historic Police-Accountability Legislation, The Seattle Times (May 23, 2017), https://www.seattletimes.com/seattle-news/crime/seattle-city-council-passes-historic-police-accountability-legislation/
[12] David Kroman, Seattle Approves New Police Contract, Despite Community Pushback, Crosscut (November 13, 2018), https://crosscut.com/2018/11/seattle-approves-new-police-contract-despite-community-pushback
[13] Steve Miletich, New Seattle Police-Union Contract Approved Despite Community Outcry That It Could Undermine Reforms, The Seattle Times (November 13, 2018), https://www.seattletimes.com/seattle-news/seattle-city-council-approves-police-union-contract-deal-faces-scrutiny-by-federal-judge-overseeing-reforms/
[14] Mike Carter & Steve Miletich, Federal Judge Finds Seattle Partly Out of Compliance With Police-Reform Deal — a Major Blow to City, The Seattle Times (May 15, 2019), https://www.seattletimes.com/seattle-news/federal-judge-finds-seattle-partially-out-of-compliance-with-police-reform-agreement-dealing-major-blow-to-the-city/
[15] Samuel Walker, The Community Voice in Policing: Old Issues, New Evidence, 27 Crim. Just. Pol’y Rev. 537, 546 (2015).
[16] Sunita Patel, Toward Democratic Police Reform: A Vision for Community Engagement Provisions in DOJ Consent Decrees, 51 Wake Forest L. Rev. 793, 880 (2016).
[17] Brett G. Stoudt, Michelle Fine & Madeline Fox, Growing Up Policed in the Age of Aggressive Policing Policies, 56 N.Y. L. Sch. L. Rev. 1331, 1372 (2011).
[18] Rachel A. Harmon & Andrew Manns, Proactive Policing and the Legacy of Terry, 15 Ohio St. J. Crim. L. 49, 71 (2017).
