We are now in the thirteenth year of the consent decree between the City of Seattle and the U.S. Department of Justice to remedy various unconstitutional acts by the Seattle Police Department. In 2012 when this process began, it’s doubtful anyone imagined it would go on this long – especially not U.S. District Court Judge James Robart, who has overseen every moment of it. But Wednesday morning, at a status conference called by Robart, he and representatives of both the city and the feds seemed to agree that the end may finally be in sight.
In September of 2023, Robart issued an order laying out fifteen steps that SPD would need to complete before he would terminate the consent decree. This week both the DOJ and the city told him that only one item remains incomplete: submitting an updated crowd-control policy that incorporates learnings from the events of the summer of 2020.
SPD now claims that it knows the policy it wants to issue, but doing so requires changes to city law. That’s because in 2021 the City Council passed an ordinance broadly prohibiting SPD from using so-called “less lethal” weapons for crowd control (with only a few exceptions). The city argues that SPD officers must have less-lethal crowd control weapons available to them – and that public safety experts (and the DOJ) agree.
The 2021 ordinance also prohibited SPD’s partner agencies, such as the King County Sheriff’s Office and the Bellevue Police Department, from using less-lethal weapons when assisting SPD with an incident under a “mutual aid” agreement. According to Deputy Mayor Tim Burgess, all of SPD’s partner organizations have informed the department that they will not respond to mutual aid requests from the city with that rule in place. So the next time there is a large-scale protest in Seattle, SPD will get no help from its peer law enforcement agencies.
Earlier this week, Mayor Harrell sent a bill to the City Council for its consideration that addresses these issues. It would repeal the 2021 ordinance in favor of a new set of restrictions on SPD’s use of less-lethal weapons for crowd control that instead define the circumstances in which they may be deployed and that training and supervisor approvals are required in advance, rather than enumerating which specific weapons are allowed and prohibited. It also repeals the restrictions on “mutual aid” partners’ use of less-lethal weapons.
The 2021 ordinance also granted a broad “right of private action” allowing those who had been physically or emotionally impacted by SPD’s use of less-lethal weapons for crowd control to sue the city – for up to $10,000. Harrell’s bill would repeal that as well. According to Burgess, “The right of private action against the city is unnecessary since protections and options for seeking damages exist in Washington and federal law. The current right of action is very broad. For example, a person a block away—or more—could claim they were emotionally damaged because they learned of the use of less lethal tools and could begin a claim.”
These are issues that then-Mayor Durkan raised when she declined to sign the 2021 ordinance – but since it had passed the City Council with a supermajority, it became law anyway. And now it seems that a new City Council, much friendlier to SPD and to the Mayor, will likely roll back their legislation and set the stage for the completion of the updated crowd control policy and ultimately the termination of the consent decree.
That doesn’t mean there aren’t issues with Harrell’s plan. One big one: his new ordinance allows SPD almost complete freedom to choose its “less lethal” weapons. Officers may only use the ones explicitly authorized in SPD’s policy manual, but SPD is the sole author of the policy manual and can choose whichever weapons it wants. So despite multiple instances of SPD blatantly misusing blast balls during the summer of 2020, frequently causing injuries to protesters and bystanders (leading a federal judge to issue an injunction against SPD and then holding it in contempt for violating it), SPD would write its own rules for their use and the training that officers must have. No one outside of SPD, with the possible exception of the Mayor, would have approval over those policies. The city didn’t bother to share the details of Harrell’s new legislation with Judge Robart this week (and Robart, who in the past has shown little patience with the Seattle City Council, was distracted enough upon hearing that SPD’s crowd-control policy needed to wait until the Council took action that he didn’t bother asking about the details).
That said, Robart made it clear that there are a few other issues that continue to bother him. One is the state of “bias-free” policing in Seattle. The data clearly says – and all parties agree – that SPD’s overall use of force has dramatically decreased over the past twelve years. Nevertheless, the uses of force that remain are still disproportionately inflicted upon persons of color. SPD has studied this – and also hired outside researchers to study it – but to-date no one has found a compelling, actionable explanation as to why this remains true despite new training, increased supervision for officers, and new accountability measures. According to the DOJ, Seattle is not alone; other jurisdictions’ police departments have seen a stubbornly persistent pattern of bias. To Seattle’s credit, they argue that the most recent data on “stops and detentions” no longer show racial bias; the problem centers on use of force. But a solution remains elusive. The parties also point out that police reform in Seattle isn’t intended to end when the consent decree terminates, and to that end they are trying to put in place organizational structures that will live on and continue plugging away at these issues. Because of that, they argue, the fact that bias remains should not be seen as a sufficient reason to further extend the consent decree.
Robart also highlighted one more issue, a long-standing sore point for him, that also has not resolved: the collective bargaining process with SPOG, the union representing the officers, continues to be an impediment to reform. Specifically, the disciplinary system for officers is subject to bargaining. SPOG has played hardball in negotiations, and in so doing has undermined or explicitly blocked implementation of several of the accountability reforms legislated by the City Council years ago.
Unfortunately, it has become clear that under state and federal law there isn’t much the city, the DOJ, or Judge Robart can do about it. Under state law and court precedents, SPOG, on behalf of the officers it represents, is entitled to bargain for the disciplinary regime. SPOG is not a party to the consent decree so Robart has no direct power over it, and the DOJ has no standing to interfere in the union exercising its rights. A fix, if one is to be found, must come from the state legislature. In recent years the legislature started this process by codifying the arbitration process for disciplinary appeals (arguably in direct response to Seattle’s struggles with that issue) but that is just the tip of the iceberg when it comes to SPOG’s ability to block further reform to the police accountability system. Robart’s frustration is palpable: several years ago he asserted that he would not let SPOG hold police reform hostage, and yet that is exactly what is happening.
And yet, Robart seems resigned to wrapping up the consent decree in the next few months – despite the ongoing biased use of force by SPD officers, and the chasm that lays between the present and a reformed officer disciplinary system. Like it or not – and to be clear, the judge is clearly a fan of many of the other significant reforms SPD has enacted – he will most likely issue the termination order early in 2025.
And the person who might be happiest about that is Mayor Harrell, who is facing re-election next year and campaigned last time on ending the consent decree.
