I recently set out to write a long-form article on police accountability in the City of Seattle. I meant to break from my usual way of protest writing – more feelings journaly than newsroomish – to finally write a real piece of no nonsense journalism. I quoted the policy manuals of different police oversight organizations with an objective tone, offered historical anecdotes and observed professional journalistic standards as well as I know how. But after reading my own deadpan objectivity, I thought, why would anyone read this shit? My fact-based, objective reporting left a lot to be desired. It would’ve been cooler to just call bullshit bullshit. So that’s what I’m doing now. Because that’s what police accountability is in Seattle, a smokescreen of worthless bullshit.
As a writer, I feel like a Saturday slut falling for the idea that I’d do better to bite my tongue. That’s stupid. I know that when I read about police accountability I appreciate it when the writer shares personal judgments about cryptic subject matter. Like, say, the integrity of the “governmental interests” at stake in police use of force scenarios, as they’d be represented in a court of law by the conceptual framework outlined in Graham(1989).
“Graham(1989)” is a reference to the US Supreme Court case Graham V. Connor, which established in 1989 that police use of force should be analyzed with respect to a 4th Amendment reasonableness standard. But don’t worry about that right now, I’ll fill you in later if you’re unfamiliar. Before we get into that, I’ll offer a rant about journalistic objectivity which will bleed into an introduction of police accountability as a general topic. Then I’ll talk about police accountability in Seattle specifically and then close on the 4th Amendment jurisprudence on police use of force.
Journalistic objectivity, which seems to mean different things to different people, can add a veneer of legitimacy to our increasingly lawless legal culture when it’s done incorrectly. This benefits people like lil chad wolf, the trumpian tool running the fascist department of homeland security (DHS). wolf, who doesn’t appear to have ever heard of Nuremburg, is so invested in objective reporting that he recently took time away from overseeing politicized state violence to chide a celebrated journalist for her ostensible lack of it in a series of text messages he sent to her mobile phone.
By demanding objectivity, I expect wittle chad wolf wants the conduct of DHS to be evaluated with respect to what’s permissible by law, where law is loosely defined as whatever DHS agents are doing. But therein lies a serious dilemma for journalistic objectivity. wolf’s expectation is not without precedent. Nonetheless, we’re a nation founded under law. The idea behind this founding principle is that the equal application of law can unite the diverse group of people that comprise our population. The legitimacy of our law, indeed the integrity and viability of our state, therefore, uniquely depends on the Rule of Law, which is simply the idea that everyone is similarly subject to the legal code.
Meanwhile, top DHS officials stand accused of politicizing intelligence reports to appease trump, apparently emboldened by a legal culture that predates the current administration, which has already resulted in real political violence against US citizens. Sadly, the legal culture in the US has lost sight of the relationship between the Rule of Law and the legitimacy of authority and, in doing so, has imperiled the nation in a deep identity crisis that’s arguably contributed to the recent violence in Kenosha and Portland.
This judicial complacency confuses expectations of what it means for a journalist to remain objective. Insofar as wolf seems to believe, objectivity means entertaining the fantastic but popular delusion that law enforcement standards and best practices are sufficiently informed by the Rule of Law. As if to say, law enforcement organizations in their current form, with the institutional memory they hold, are legitimate in the first place. But that’s an absurd proposition by any objective interpretation of the term objective. I mean, how do you objectively entertain the legitimacy of unaccountable authority in a system where the premise of authority is the Rule of Law?
Truth is, the law’s not equally enforced. In fact, enforcement outcomes vary predictably along lines of race and class. Meanwhile, the police themselves are not similarly subject to the legal code, thanks to qualified immunity and higher evidentiary standards enshrined in police union labor contracts. Not to mention the horrors permitted by federal case law, like the summary execution of Tamir Rice, for example, or the complete lack of accountability structures for prosecutorial misconduct. These should be recognized as credible challenges to the legitimacy of law enforcement’s authority to pursue “governmental interests” where such interests conflict with our constitutional rights.
You see, we have good reason to believe that it is, in fact, not legal for cops to murder us on justifications based on imagined “facts” or tense circumstances imposed by their own carelessness or ineptitude. I know the Supreme Court’s weighed in here but the current jurisprudence is simply wrong if words have objective meanings, don’t be thick. Yet, journalistic objectivity, as a demand from authorities like wittle-wolfie and as a standard in corporate media, means overlooking a glaring legitimacy crisis to frame the Rule of Law as something that depends exclusively on the unrelenting, industrial-scale prosecution of low and mid level “crime,” at a huge cost to rights and life. That’s bullshit because it rhetorically frames, and moralizes, law as an object of discriminatory power totally inconsistent with our nation’s founding principles, given the real and persistent disparities in law enforcement, criminal prosecution and sentencing. Objectivity, I contend, is not the validation of authority’s subjective delusion. Ya, hur.
Objective reporting on police accountability, so far as I can tell, should begin at the question of whether or not standing law enforcement organizations, and industrial criminal punishment more broadly, are legitimate in the first place. Not only because there’s a growing consensus that they’re not, but also because law enforcement culture is marked by ideological subscriptions that preclude any reasonable expectation that these institutions can be successfully reformed; even among those who don’t support full scale abolition, the need for police reform is widely recognized due to the failure of past reform efforts.
Furthermore, acknowledging the possibility of illegitimacy changes what it means for police to be accountable by expanding the focus of accountability from the actions of individual officers to the structure of entire law enforcement institutions. Accountability in a system where law is lawless, which tends to focus on individual officers, means something entirely different than accountability framed contextually by the Rule of Law, which tends to consider the performance of law enforcement as an institution.
Of course, as an ideal, the Rule of Law has never been achieved in practice and we’ll always struggle to smooth out rough edges. That’s not to say, however, that police accountability structures informed by the Rule of Law are in any way enigmatic, they simply require a disciplined judiciary and effective representation in the courts. Not to downplay our historical failings but, ya know, by now we have a pretty good idea of where we’re fucking up, and we’re well informed about how to fix the worst of it. Nevertheless, with friction between our reality and ideal guaranteed by design, charges of illegitimacy against government institutions are hardly new.
Consider, for example, this excerpt from a review of Thoreau’s writing recently published by the New York Review:
It is not government in general that fails to command legitimacy but unjust government, and a government that legally sanctions slavery is rotten at its core:
“If one were to tell me that this was a bad government because it taxed certain foreign commodities brought to its ports, it is most probable that I should not make an ado about it, for I can do without them. All machines have their friction.”(Thoreau, Disobedience)
Slavery, by contrast, is a machine designed wholly for the production of “friction.” This makes any strategic, limited refusal to participate impossible. Most citizens, he argued, were simply bodies in the service of this machine whose main function seemed to be the expansion of slavery. “There are thousands,” he writes, “who are in opinion opposed to slavery and to the war [in Mexico], who yet in effect do nothing to put an end to them.” In fact, most people do much worse than nothing: they actively “postpone the question of freedom to the question of free trade… They hesitate, and they regret, and sometimes they petition,” but they are too invested in the notion of reform through a legal structure that is broken and, more to the point, too deeply invested in a slave economy, to do anything about it.
Those social dynamics feel familiar?
With focus on institutional efficacy, contextually framed by the Rule of Law, reporting on police accountability wants to become a process of accounting for the relationship and interplay between law enforcement and other institutions in society, both public and private. This type of accounting reveals a police accountability approach focused on the actions of individual officers to be completely inadequate, for all the ways police do considerable harm while operating within the “law” and despite the best of intentions.
For instance, while non-punitive slavery was banned by the 13th Amendment, it also secured slavery within the law “as a punishment for crime.” An individual use of excessive force, or a harmful social media post, pales in comparison to the systematic damage done by an institutional structure that postures police between the lobbying interests of profit motivated incarceration, it’s clients in private industry, and the communities police are meant to “serve.”
Police are also used to capture revenue for cash strapped governments. This was the case in Ferguson, Missouri, where tickets and fines were aimed disproportionately, nearly exclusively, at the Black community. Discriminatory law enforcement also works to shape the electorate, as felony convictions can compromise an individual’s right to vote in many states.
There’s a compelling body of evidence that policing institutions have been deliberately structured to shape the electorate for the protection white supremacy and elite economic interest. Not only do we have hard evidence of a treacherous institutional design but also decades of results perfectly in line with that intentionality, and an institutional memory in policing organizations that makes it unreasonable to expect different results in the future, absent the total abolition of the institution.
The current state of police accountability in Seattle reflects this history of judicial complacency and institutional treachery quite nicely. Despite the fact that the Seattle police department (spd) has been under federal consent decree since 2012, the department still exhibits unconstitutional behavior in a procedural capacity, though with an increasingly overt expectation of impunity alongside increasingly political use of discretionary enforcement power.
For instance, after spd indiscriminately attacked police brutality protesters September 7th, unprovoked, the president of the Seattle police officers guild (spog), mike solan, took to social media to taunt an independent reporter after the reporter’s press passed was found by, or delivered to, solan after it was lost in the preceding mayhem. After complaints about the twitter post were lodged with Seattle’s Office of Police Accountability, solan denied any wrongdoing and the tweet, as of September 12th, remains online.
solan became spog president after campaigning on a platform of violence and impunity aimed at overcoming the “anti-police activist agenda that’s driving Seattle’s politics.” As spog president, solan achieved a labor contract for his constituents in spd that “waters down accountability measures for officers that were passed through legislation in summer 2017.”
Most recently, solan used his position as spog president to paint protesters as “terrorists” while lobbying for militarized federal intervention against police brutality protests, such as we’ve seen in Portland. If solan’s use of terminology is framed by recent US history, it’s not a stretch to imagine that he’s actively lobbying for protesters to be classified such that they can be “legally” subjected to torture, indefinite detention, and extrajudicial assassination. Such bombastically radical sentiments are not uncommon among leaders in law enforcement, regardless of jurisdiction.
solan’s recent shit-talking follows months of indiscriminate, excessive force used against protesters by spd, without any indication that standing police oversight and accountability organizations are capable of, or even interested in, providing proportional redress for the harms they’ve caused. This is troubling because it’s validating the lawlessness of police at a moment of national reckoning. Seattle is hardly unique in this regard. Without a swift and appropriate response from local and national leaders, policing is at risk of entering a space where the mission of law enforcement becomes explicitly antithetical to the Rule of Law, with respect to constitutional constraints on police behavior.
Having now covered police accountability as it pertains to institutional performance, let’s dig into specifics of Seattle’s system of police accountability.
An introduction to police accountability at the administrative level
How is spd held accountable? Well, it depends. On one hand, they’re not. Not enough, anyway. On the other hand, we’ve got a triad of accountability institutions right here in the City of Seattle, with the soon-to-be-defined CPC, OPA and OIG, not to mention city and county prosecutors. Then there’s state law, such as I-940 and it’s progressive “objective good-faith test,” and the US constitution and federal prosecutors beneath that.
But how do you make sense of all that? Like, what becomes relevant when? Obviously, it depends but, after reading for this article, I think I’ve got a defensible overview of police accountability in the city of Seattle. On the issue of excessive force specifically, I think the best way to introduce police accountability is by recognizing how different venues of accountability afford defendant officers different means of defense.
Overall, what I’ve found is a system of accountability where defendant officers enjoy adjudication structures that grow increasingly favorable to the officer, the more serious the offense becomes. This is because of the relative strength of Seattle’s local accountability systems, which cover small-fry misconduct, and the weakness of federal law to hold officers accountable; federal law becomes more explicitly relevant in serious use of force cases, such as deadly police shootings. In the most extreme cases, federal case law affords defendant officers a defense that supersedes the capabilities of local accountability systems, judicial or administrative, to deliver meaningful accountability for uses of force not permitted by policy. This dynamic, which is not entirely unique to Seattle, was just put on display when St. Louis County Prosecutor Wesley Bell failed to bring charges against Darren Wilson for shooting Michael Brown in 2014, after quietly reopening the case for review. Though Bell considered the case with respect to state law, the federal law works to afford officers leeway in the use of force that cannot be restricted at the state level. *Lawyers, please let me know if this narration is incorrect.
The more extreme a hypothetical use of force becomes, the more likely proportional accountability for the defendant officer will depend on the fourth amendment exclusively. While that may seem like a good thing, it’s not. Because the 4th amendment jurisprudence on use of force found the execution of Tamir Rice to be a “reasonable one.”
Say, for example, that a Seattle officer uses minor but unnecessary force, but only to the effect of hurt feelings and a marginal loss of community trust. Accountability in that circumstance might be achieved through administrative channels on the basis of a policy violation, conceivably in proportion to the offense, with the chief of police acting as the final arbiter of punishment. In this circumstance, a defendant spd officer may appeal per union contract but, because of recent history, the local judiciary is keen to ensure the appeals process produces results that conform with the terms of Seattle’s 2012 consent decree. But such attention from the judiciary may fade over time, in which case there would be no check on the ability of police union labor contracts to overcome accountability measures.
But if an officer uses so much force that it becomes a criminal matter, the officer’s defense will likely be dictated by the terms of Supreme Court case Graham V Connor (1989), which affords officers broad latitude to use force by the terms of their testified perceptions. For example, if you recall, Darren Wilson saw a “demon” in Michael Brown, and that factored in favor of his defense (even if the specific term demon was saved for media interviews). That’s why cops have gotten fired for uses of force outside departmental policy, while still free of criminal liability for questionable deadly shootings. Local accountability structures can’t offer proportional redress for unnecessary killings, even if they wanted to, because federal case law leans so far in favor of officers accused of excessive force.
To be clear, the characterization of police accountability I just offered is tailored to Seattle and the specific issue of excessive force, though components therein are relevant nationwide. For example, the “U.S. Supreme Court has historically drawn a sharp distinction between constitutional torts, such as excessive force, and common-law torts, such as assault, battery and negligence.” While I still have basically no idea what that means, I’ve surmised that the specific nature of a claim of police misconduct holds significance for the way prosecutors charge defendant officers. Of course, that consideration only becomes relevant within the context of criminal charges.
The finer intricacies of law are a bit beyond this analysis. I’m focused specifically on Seattle, and only intend to provide a surface level overview of our system of police accountability.
To provide that overview, I’ll review the accountability structures relevant to Seattle with respect to their individual organizational objectives, their place in, and relationship with, the broader accountability system, and their effectiveness individually and overall.
Federal and state law aside, Seattle has a system of police accountability that’s referred to colloquially as a three-legged stool, with each leg equal length. Each “stool leg” represents a specialized organization that works cooperatively with the other legs to hold spd accountable. These include the Community Police Commission (CPC), Seattle Office of Police Accountability (OPA), and the Seattle Office of Inspector General(OIG).
But before we dig in, we should take a minute to consider police accountability as an institutional objective. Regardless of venue, every entity charged with delivering accountability to police will approach the issue as a matter of balancing the state’s interests to uphold the law against the public’s constitutional rights. But how that balance is conceived depends on the venue. For instance, a federal prosecutor, when making charging decisions, would evaluate the balance between those competing interests within the scope of 4th amendment jurisprudence. Seattle’s OPA, on the other hand, would use spd use of force policy to guide their determinations about how well the officer in question struck the proper balance.
But that’s not to say OPA’s not interested in 4th amendment jurisprudence. spd use of force policy is written to conform with or exceed 4th amendment limitations on use of force, so it’s still relevant in that sense. Also, the “reasonableness test” set in Graham(1989) surely informs OPA’s epistemic approach when they’re making judgments about how well an officer’s use of force conforms with policy.
Some of this might not make a whole lot of sense to readers new to the topic but it should become clearer as things progress. To summarize this introduction, to understand how accountability can be delivered by any particular accountability agent, it’s necessary to understand how that agent is situated in law and authority. For example, Seattle’s OPA cannot bring federal charges against an officer just like a federal prosecutor is not particularly concerned with departmental policy.
OK, I think we’re ready to dig in.
The Community Police Commission
“The Community Police Commission (CPC) provides…community input on needed reforms.” The CPC was mandated in 2012, and began working in 2013, after a federal investigation into spd’s unconstitutional policing practices resulted in a consent decree between the City of Seattle and the federal government. A city ordinance in 2017 made the CPC permanent and expanded it’s authority and responsibility to include “community-based oversight of spd and the police accountability system.” That 2017 legislation is important to our local history so for the sake of reference I’ll refer to it as “ORD-17” from here out.
The CPC’s mission statement: “The Community Police Commission listens to, amplifies, and builds common ground among communities affected by policing in Seattle. We champion policing practices centered in justice and equity.”
The CPC has the following responsibilities. Review the reports and recommendations of the Seattle Police Monitor, and issue its own reports on implementing the settlement agreement. Review and issue reports or recommendations on the implementation of spd’s 20/20 initiative and other city initiatives. (spd’s 20/20 initiative was an internal reform effort undertaken in response to the 2012 federal consent decree.) CPC “may consider” other issues referred by DOJ and the city, such as community engagement, accountability, investigatory stops and data collection, officer assistance and support, and transparency and public reporting. The CPC may also propose legislation related to constitutional policing, public and officer safety and the promotion of public confidence in spd, and make budgetary proposals.
The CPC originally consisted of 15 commissioners appointed by the mayor and confirmed by city council, including a Chair selected by the mayor. But ORD-17 increased the number of commissioners to 21, with seven selected by the mayor, seven by the CPC and seven by the city council. As of August 2020, there appears to be five vacancies, with 16 active commissioners currently serving.
Basically, the CPC just speaks for the community. Specifically, it means to speak for the “communities affected by policing in Seattle.” But how’s that working out? To me, it seems the CPC’s not great at manifesting community will. For instance, in response to public outcry for spd’s treatment of George Floyd protesters, the CPC, OPA and OIG, were each asked to review spd’s crowd control policies by both the terrible mayor Durkan and the slippery city council. Those separate requests follow from the ostensible community perception that spd was, and is, unaccountable for it’s procedural use of disproportionate force at protest sites. Seven years after it began its work, the CPC does not appear to have achieved any meaningful impact on officer behavior.
It’s flagship achievement, ORD-17, was based on recommendations that the CPC itself had produced. But it took three years for city council to translate those recommendations into legislation. This institutional lag might be more tolerable if the accountability items ORD-17 achieved, namely moving spd oversight further into civilian hands while also restructuring disciplinary and appeals processes for officers accused of misconduct, were not effectively overcome by a union contract championed by the Seattle Police Officers Guild (spog), and passed by city council 8 to 1, in 2018.
The CPC continues its work representing the community but it’s influence is clearly weak and it’s recommendations are not always well received.
For instance, in 2019, the CPC worked as a friend of Judge Robart’s court, the federal judge in charge of enforcing spd’s compliance with the federal consent decree, in an effort to compel the city to unwind the accountability evasions achieved by the passage of spog’s 2018 labor contract. In a resistant maneuver, mayor Durkan brought in outside consultants to evaluate Seattle’s system of police accountability, ostensibly to attain an evaluation favorable to spd. Durkan’s effort has been characterized as an attempt to “deny…weaknesses exist…ignore the court’s direction, and argue that Seattle’s system is better than other cities.” CPC’s permanence is no guarantee that it’s recommendations will be met kindly by the administration.
More recently, the CPC has weighed in on issues related to the ongoing unrest. For one, CPC lobbied to undermine spd’s effort to subpoena local journalists for access to media files relevant to investigations related to the protests. It also issued a report, concurrently with reports also delivered by the OPA and OIG, as mentioned above, concerning spd’s use of “less lethal” weapons at recent protests. The CPC report notes that previous CPC recommendations have been not been implemented. Then it goes on to make more recommendations. That’s about all it can do.
The Office of Police Accountability
“The Office of Police Accountability (OPA) has authority over allegations of misconduct involving Seattle Police Department (spd) employees relating to spd policy and federal, state, and local law,” and investigates complaints and makes recommends to the Chief of Police about it’s findings. OPA came under civilian leadership and conducts its investigations with a mix of spd sergeants and civilian investigators as a result of ORD-17.
The specific authorities and responsibilities of OPA are as follows. Establish and maintain processes related to the investigation of allegations of police misconduct. Promote public awareness of, and trust in, the complaint investigation process by providing “full access” to the public. Identify spd systems improvement needs and recommend effective solutions. Help reduce police misconduct and enhance police conduct.
In the three-leg stool paradigm, OPA is specifically intended to oversee accountability. But understanding how OPA operates requires some familiarity with spd use of force policy, OPA policy, and federal and state law. For instance, OPA’s role in the accountability process depends on the nature of the incident in question. In some instances OPA works in an investigatory capacity while other times they do not. Given that OPA’s is structurally limited to making punishment recommendations to the chief of police, independent investigatory authority (which it doesn’t always have) is central to it’s ability to operate effectively within the timid bounds of it’s structure.
For example, per policy, if spd shoots someone to death an spd Force Investigation Team (FIT), which includes one OPA representative, will be responsible for investigating the use of force. But here’s the catch. While the OPA representative embedded with FIT is tasked with identifying potential misconduct by the officers in question, they have no investigatory responsibility in the circumstance of a deadly police shooting. In the event that the FIT captain identifies possible criminal conduct by the officer(s) in question, OPA must be notified and, if OPA concurs, investigatory authority is referred to the homicide unit for special investigation. However, if the FIT captain identifies serious policy violations by the officer(s) involved, OPA will be notified and it will conduct an investigation into the alleged policy violation and pass its findings and recommendations along to the chief of police.
The division of investigatory labor and authority in the event of a deadly police shooting should be a target for an organization like OPA. Normally, Washington Initiative 940 would require an “…independent investigation be completed in cases where the use of deadly force resulted in death, substantial bodily harm, or great bodily harm…” But I-940 was amended by Washington HB-1064 to exclude departments under federal consent decrees, such as Seattle, from that requirement. Nonetheless, regardless of who carries primary responsibility for investigating a deadly police shootings, it makes sense that OPA should have a discretionary independent investigatory authority in every conceivable circumstance.
OPA also handles citizen complaints, and follows a well defined protocol when doing so. When OPA receives a complaint about officer misconduct, a preliminary investigation is initiated, the event is reviewed and classified and then the complaint proceeds into an administrative investigation, “supervisor action” or mediation.
An administrative investigation with sustained findings culminates in OPA making disciplinary recommendations to the chief of police, though officers may appeal by terms set in the labor contract spog championed in 2018.
For instance, officer Adley Shepherd, originally fired for punching a handcuffed woman, was reinstated on appeal. Shepherd’s reinstatement, however, was vacated by King County Superior Court Judge John McHale after a judge overseeing the federal consent decree found that Shepherd’s reinstatement brought Seattle out of compliance. spog, in turn, released a statement of intent to appeal McHale’s ruling, arguing it’s “an affront to Binding Arbitration.” Though, as Kevin Schofield notes on his blog, courts do not typically review arbitration awards, to prevent damage to “the freedom of contract.” Courts may, however, intervene to “vacate an arbitration award in the rare situation that it violates an explicit, well-defined, and dominant public policy.”
Shepherd’s reinstatement was achieved through the terms of spog’s labor contract, which are still relevant today. That Shepherd’s reinstatement was vacated, however, should not be taken to suggest that our structures for accountability are strong. The trouble is, had Seattle not been overseen by a federal monitor, whose objection likely compelled the King County Superior Court to act, it’s not clear that Shepherd’s reinstatement would have been vacated.
Moving on, “supervisor action” occurs when the OPA director believes appropriate redress for a complainant would be best delivered by the supervisor of the spd employee in question. In the event of a supervisor action type resolution, OPA delivers a punitive or corrective recommendation to the relevant supervisor and the supervisor carries out the action. But it’s unclear to what extent the supervisor is obliged to observe OPA recommendations, except to the extent that the chief of police demands compliance. Mediation occurs when both the complainant and spd employee agree to participate.
Mapping out the intricacies of OPA’s investigatory and recommendation procedures in full detail may be less productive than simply taking an overview of the limitations of OPA’s structure. For instance, the chief of police ultimately retains the authority to impose non-criminal punishments on spd officers. The OPA only makes punishment recommendations to the chief. However, if there’s a disagreement between the chief and OPA director about OPA recommendations, the chief and director will hold a “supplemental meeting” to discuss the disagreement. But it doesn’t appear that OPA has any real leverage over the chief, except for the power of persuasion.
Also, as stated in the OPA manual, “the City and spog agreed to specifically prohibit OPA from conducting criminal investigations. Further, there ‘shall be no involvement between OPA and specialty unit investigators conducting the [criminal] investigation.'” While I haven’t explored spd policy well enough to know exactly how or when potentially criminal matters are referred to King County Prosecutor’s Office or City Law Department for review, a reference in the OPA manual suggests that the authority to make those referrals is retained by spd, and is therefore subject to spd discretion.
Also, as recently noted by twitter account @DivestSPD, spog’s labor contract includes language that “elevates the standard of review” beyond a “preponderance of the evidence…where the alleged offense is stigmatizing” to the officer. This to prevent it from being difficult “for the employee to get other law enforcement employment.” At this link here, @DivestSPD outlines how this language makes it difficult for OPA to hold spd officers accountable for systematic time fraud. Of course, as citizens, if we engaged in similar behavior we’d be subject to arrest with no regard for how it might affect our employment prospects. And if we resisted arrest, we could be killed.
Another example of OPA’s ineffectiveness, this one related to it’s investigative authority, is illustrated by spd’s killing of Terry Caver, which occurred May 19th, 2020. spd has said very little about this killing publicly. As outlined above, an OPA representative was present with the spd FIT team the night of the killing. Though a thorough account of the incident has yet to be publicly revealed by spd, it appears, by accounts outlined by local reporting here and here, that spd’s use of deadly force may have conflicted with spd use of force policy. In the event of a policy violation, OPA has the authority to investigate. But OPA did not open any such investigation on its own and only did so in response to numerous citizen complaints. With spd unusually silent on the matter, OPA’s inaction gives the appearance that it’s more concerned with serving spd’s PR objectives than delivering accountability. Without transparency, one can only wonder.
In conclusion, OPA’s ability to deliver on accountability, retroactively, is limited to making recommendations to the chief of police on non-criminal matters of police misconduct. That’s a pretty narrow operational scope. The nature of OPA’s involvement on the most serious matters, where accountability is most needed, is limited by virtue of structure. Even within the limited scope of it’s authority, OPA’s capabilities are further restricted by spog’s labor contract. On the front end of misconduct, OPA may assert influence over spd policy and procedure. This may impact officer behavior to preclude misconduct, but recent events demonstrate the limitations of this approach. By virtue of structure, if not disinterest, it seems OPA is largely ceremonial.
Seattle Office of Inspector General
The Seattle Office of Inspector General (OIG) “ensures the fairness and integrity of the police system as a whole in its delivery of law enforcement services by providing civilian auditing of the management, practices, and policies of the [Seattle Police Department (spd) and Office of Police Accountability (OPA)] and oversee ongoing fidelity to organizational reforms implemented pursuant to…the 2012 federal Consent Decree…” The OIG was established by in 2017 by ORD-17.
The OIG provides spd with “systematic oversight” that falls into three main categories, auditing, OPA oversight and policy work.
Each year, the OIG releases an annual work plan that lays out it’s goals for the coming year, though the plan is subject to change as different items rise in priority. While reviewing the 2020 work plan one particular audit item jumped out as relevant to concerns I raised in the previous section about OPA’s handling of spd’s killing of Terry Caver. The OIG plans to examine a “specific case” where policy violations were not identified in the review process. The plan mentions specifically that it may conduct an assessment of interactions between the Force Investigation Team, spd chain of command and OPA.
While the CPC and OPA are meant to act in real time, or at least within the scope of a predetermined timeline, the OIG moves slower by design. This might not be a problem for an organization with fewer public trust issues than spd but, things as they are, I don’t have the patience to extensively review OIG’s work for a lack of faith that it will produce anything worthwhile. If you would like to learn more about the OIG and it’s work, begin here. Moving on…
Seattle’s 3-leg Stool in Summary
The Fourth Amendment and Excessive Force
The current 4th amendment jurisprudence on police use of force began with a 1985 Supreme Court case called Tennessee V Garner, which approached police use of deadly force as a seizure, subject to a 4th amendment “reasonableness” standard.
In Garner(1985), the Court reasoned that to “determine whether such a seizure is reasonable, the extent of the intrusion on the suspect’s rights under (the 4th) Amendment must be balanced against the governmental interests in effective law enforcement.” This means that the Court sought to balance a cops “right” to use force against your 4th Amendment right to be “secure…against unreasonable searches and seizures.”
The Garner decision was initially taken to impose greater restrictions on police use of deadly force than what much of the common law imposed at the time. Specifically, Garner(1985) established that the government’s interest to apprehend a fleeing felony suspect with deadly force did not outweigh the suspect’s interest to maintain his own life, granted the officer has no reason to believe the suspect poses any immediate threat to the officer or public. Further, Garner(1985) established that the level of force applied to make an arrest has to be proportional to the threat faced by officers or the public, given the “totality of circumstances” as understood by the officer on the ground.
Many common law regimes in 1985 allowed police to shoot and kill felony suspects to prevent them from escaping. But as the Court noted in Garner(1985), felony crimes had expanded considerably in scope since the common law was established. So the Court found it inappropriate to hold that deadly force could be applied to prevent a felony suspect’s escape on the basis of a felony charge alone.
Later, in Graham V Connor (1989), the Supreme Court affirmed that excessive force claims “are properly analyzed under the Fourth Amendment’s ‘objective reasonableness’ standard, rather than under a substantive due process standard.” Insofar as I can tell as a non-lawyer, Graham marked a hard turning point for the jurisprudence on police use of force, which had formerly evaluated excessive force with respect to eight and fourteenth amendment considerations as well, which concern cruel and unusual punishment and due process, respectively.
The Supreme Court developed a three-point test for evaluating the constitutionality of police use of force in Graham(1989). It was noted, however, that a “test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application.” With that in mind, the facts and circumstances of “each particular case,” the court decided, should be evaluated with respect for “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” This was an attempt to establish an objective basis for the evaluation of excessive force claims, per the 4th Amendment reasonableness standard.
But here the Supreme Court set the stage for a legal paradox that persists to this day. The court argued in Graham(1989) that the “‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Obviously, the subjective perceptions of an individual officer can never be described as objective. But the court found it sufficiently objective to compare the actions of a defendant officer against the actions of a hypothetical “reasonable officer.” But how this hypothetical “reasonable officer” should be expected to behave, is necessarily dependent on the perceptions testified by the officer involved, given that hindsight is irrelevant. Remember the demon Darren Wilson saw in Michael Brown? Graham(1989) is what gave it value to Wilson’s defense.
That pretty much sums up this basic review of the 4th Amendment jurisprudence on excessive force. Also noteworthy on the federal scene is judicial doctrine “qualified immunity” and 42 USC Section 1983, a federal law allowing lawsuits for civil rights violations. I’m not going to cover those. Because there’s a lot written elsewhere about qualified immunity and apparently Section 1983 is notoriously tricky and I’m already in over my head in legalese.