by Paul Kiefer

(This article was originally published by PubliCola and has been reprinted under an agreement.)

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The Washington State Court of Appeals issued a ruling on Monday, April 5, upholding the Seattle Police Department’s (SPD) 2016 decision to fire Officer Adley Shepherd for punching a woman while she was handcuffed in the back of a patrol car.

After then-Seattle Police Chief Kathleen O’Toole announced she was firing Shepherd, Shepherd and his union, the Seattle Police Officers’ Guild (SPOG), appealed her decision to an arbitrator — in this case, an attorney who can approve, adjust, or overturn disciplinary actions for police officers. In 2018, the arbitrator sided with Shepherd, directing SPD to rehire him and offer back pay.

But Seattle City Attorney Pete Holmes stood by Shepherd’s firing, asking the King County Superior Court to vacate the arbitrator’s decision — a rare challenge to the authority of arbitrators in police disciplinary cases, whose decisions are typically final. The Superior Court agreed with Holmes; after another appeal by SPOG, so did the Court of Appeals.

The City’s success in the Shepherd case could have broader implications for police discipline in both Seattle and Washington State as a whole. The ruling underscores the importance of consequences for misuses of force by police; it also casts a spotlight on efforts to reform the arbitration process itself, which many reformers argue is biased in police officers’ favor.

In June 2014, Shepherd arrested 23-year-old Miyekko Durden-Bosley after stepping into an argument between Durden-Bosley and her daughter’s father, Robert Shelby. At the time, Durden-Bosley was drunk and agitated, but she hadn’t committed any obvious crimes — Shelby’s mother had called 911 to report that Durden-Bosley had threatened her son over the phone, and Shepherd arrived to investigate.

When Shepherd handcuffed Durden-Bosley and pushed her into the back seat of his patrol car, she kicked him in the jaw. Two seconds later, Shepherd retaliated by punching Durden-Bosley in the eye, leaving her with two small fractures in her eye socket. Shepherd himself was mostly uninjured by the kick. After investigations into the incident by several oversight agencies, including Seattle’s Office of Police Accountability (OPA), O’Toole decided to fire Shepherd for the unnecessary use of force. Throughout the investigations, Shepherd refused to acknowledge that he had made a mistake; after his firing, he maintained his innocence and appealed O’Toole’s decision.

The arbitrator who later reviewed Shepherd’s appeal didn’t dispute that Shepherd violated SPD policy when he punched the handcuffed Durden-Bosley. However, the arbitrator also concluded that the circumstances surrounding Shepherd’s punch — both the argument and kick that preceded it, specifically — had “mitigate[d] somewhat the seriousness” of his policy violation, and that firing Shepherd was an excessive response to his actions. Before Shepherd, the arbitrator noted, SPD had never fired an officer for using “unreasonable non-lethal force on a suspect.”

Instead, the arbitrator ordered SPD to rehire Shepherd and offer him back pay for all but 15 days of the time that had passed since his firing; those 15 days, the arbitrator decided, would suffice as a punishment for his policy violation. According to Seattle’s contract with SPOG, the arbitrator’s decision was final.

Nevertheless, Holmes decided to challenge the arbitrator’s ruling, arguing that reinstating Shepherd would violate the “public policy against excessive use of force in policing.” Despite SPOG’s objections, the Superior Court agreed that Shepherd had unambiguously breached an “explicit, well-defined and dominant public policy” and that a 15-day suspension wouldn’t suffice as a consequence.

In response, SPOG accused the Superior Court of overstepping its authority by overturning the arbitrator’s decision and argued that no “well-defined” public policy exists that prohibits the use of excessive force.

In its ruling on Monday, the Court of Appeals took the unprecedented step of outlining an “explicit, well-defined and dominant public policy” prohibiting the excessive use of force by police rooted in the U.S. Constitution and underscored in Seattle’s 2012 agreement with the Department of Justice that requires SPD to address “unconstitutional practices” by its officers.

The court also dismissed SPOG’s argument that the doctrine of qualified immunity, which protects public officials from being sued for their on-the-job behavior, protects officers’ rights to use force, writing that “whether an individual officer should be held criminally or civilly liable for the use of force is an entirely different question than whether there exists an explicit, dominant, and well-defined policy condemning the use of excessive force in policing.”

The court also harshly criticized the arbitrator for minimizing the severity of Shepherd’s actions, writing that the decision to overturn his firing “sends a message to officers that a violation of a clear and specific policy is not that serious if the officer is dealing with a difficult subject, losing patience, or passionate in believing that he or she did nothing wrong — however mistaken that belief may be.”

From OPA Director Andrew Myerberg’s perspective, the importance of the court’s efforts to outline a clear public policy against the use of excessive force by police “cannot be understated.” The court’s decision, he said, will play a vital role in the outcomes of an array of upcoming disciplinary appeals, including those of two SPD officers fired for shooting at a fleeing car in Eastlake in October 2017. Myerberg told PubliCola that he’s “optimistic that this public policy will be uniformly applied moving forward to uphold well-reasoned and legally sufficient disciplinary decisions reached by OPA and the Chief of Police,” which he believes will help improve public confidence in the department’s leadership.

The decision also gives fodder to longstanding criticisms of the arbitration process itself. Compared to other routes available for officers to appeal disciplinary decisions — in Seattle, the alternative is a three-person, quasi-judicial body called the Public Safety Civil Service Commission (PSCSC) — arbitrators are more likely to side with police officers facing discipline: In the past decade, arbitrators have reduced or overturned disciplinary actions in more than half of the cases brought to them by police officers and their unions, often ordering departments to rehire officers fired for misconduct.

In their ruling, the court asserted that because the arbitrator’s decision in Shepherd’s case was “so lenient as to violate the public policy against the use of excessive force,” the Superior Court had the ability to vacate that decision. If a police union contract requires the decisions of arbitrators to be binding even when those decisions violate “public policy,” they concluded, that contract is also “contrary to public policy.”

In a press release on Monday afternoon, Seattle Mayor Jenny Durkan said she welcomed the court’s decision, but she cautioned that the process for overturning an arbitrator’s decision will remain unnecessarily demanding without additional reforms. “Seattle should not be forced to go to court to overturn an arbitrator’s decision,” she wrote.

“This important decision underscores that arbitration decisions must not be used to undermine existing public policy against the use of excessive force in policing,” Seattle City Councilmember Lisa Herbold said in the same press release. “Further, the court’s decision points to a pressing and urgent need for arbitration reform.”

Herbold later told PubliCola that she hopes the court’s decision will reignite support for legislation proposed earlier this year by Sen. Jesse Salomon (D-32, Shoreline) that would have effectively eliminated the arbitration track for police disciplinary appeals, instead requiring officers to bring appeals to a civil service commission like Seattle’s PSCSC. Despite support from Durkan, Holmes and Herbold, the bill failed to pass out of the Senate’s Labor and Tribal Relations Committee.

Shepherd and SPOG could still challenge the Court of Appeals ruling. In Monday’s press release, Holmes wrote that he would be willing to “defend [Shepherd’s firing] through the Supreme Court if necessary.”

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Paul Faruq Kiefer is a journalist, historian, and born-and-bred Seattleite. He has published work with KUOW, North Carolina Public Radio, and The Progressive magazine, and he is currently working on a podcast for KUAF in Fayetteville, Arkansas. Paul reports on police accountability for PubliCola.

Featured Image: Screenshot of Seattle Police Department (SPD) body cam video of an incident in which an officer punched a woman in handcuffs during an arrest in 2014. On Monday, April 5, the Washington State Court of Appeals issued a ruling upholding the SPD’s 2016 decision to fire Officer Adley Shepherd.

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