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Saturday, March 28, 2009

Why Seattle Police Misconduct Cannot Be Fixed In Seattle

What I'm about to tell you might be hard to swallow, but it is entirely truth. The problem of police misconduct in Seattle, and most cities in fact, cannot be solved at a local level alone.

Specifically, no matter how much pressure you put on local politicians and officials. No matter how bad a reputation the city develops through damning story after story of egregious abuse landing on the front page of local papers. No matter how many videos of cops beating on innocent citizens make the rounds across the nation to draw condemnation from the world...

In fact, even if all the politicians and officials in the city wanted to fix the problem of police misconduct, even if we could make them want to change the way officers are investigated and disciplined... They are utterly powerless to do anything substantive about it.


First, we have to understand the currently flawed system that allows officer after officer to avoid discipline, even when the city does try to fire them.

The OPA:
Complaints are received and investigated by the Seattle Police Department Office of Professional Accountability (OPA). Once a complaint is received the OPA has 180 days to investigate or it's an automatic exoneration.

During that process the complainant is asked to make a recorded statement about the complaint and from there the accused officer is interviewed and has a right to present their side of the case during the investigation.

OPA investigators are rank and file officers who are pulled off the streets to serve in the OPA for a limited period of time, so often the complainant is interviewed in an aggressive manner while the accused officer is asked questions in a more favorable manner.

After all officers who may have witnessed an incident are interviewed, any other witnesses are interrogated, and any evidence is reviewed, the OPA investigators will issue a preliminary finding.

Once a finding has been reached, that result is reviewed by the civilian auditor who either approves the finding and disciplinary action that is recommended by the OPA or makes her own recommendation that is registered along side the recommendation made by the OPA investigation.

The Chief of Police:
After the OPA and auditor present their findings and recommendations, the chief of police reviews the file and makes his own tentative conclusion as to whether the allegations and findings are sustained or not and, if sustained, what disciplinary action will be pursued.

Ultimately, regardless of what the OPA, auditor, or anyone else suggests, the chief has final word and authority on what the findings will be and what disciplinary action will or won't occur. But, chiefs of police in Seattle quickly find that no matter what, they still don't have much control over departmental discipline, and that's because of all the protections officers find upon the multiple levels of appeal available to them.

The First Level of Appeal:
If the chief of police finds that the allegations were sustained the accused officer is provided a chance to appeal that finding with the chief during what is called a Loudermill hearing.

During the Loudermill hearing the accused officer can dispute any of the findings during his meeting with the chief with the assistance of a police guild representative. This is a one-sided appeal, the accusing party is not given a chance after the initial complaint and investigation to rebut any claims made by the officer.

If, after a Loudermill, the chief still finds that the complaint was sustained he can impose a disciplinary action of his own choosing, based on recommendations presented or he can change his mind and decide a different level of discipline.

This Loudermill hearing is actually a first level of appeal since the disciplinary finding had already been made and this is the officer's chance to challenge that finding directly to the chief without the complainant being represented in that hearing to offer a counter-argument or explanation.

Once the disciplinary action is decided upon, the officer and the police guild have at least 4 more additional layers of appeal they can proceed with to either appeal the sustained finding or appeal the disciplinary action.

The Second Appeal Level:
The next appeal layer is the police department's own Disciplinary Review Board which appears to utilize arbiters to determine who wins the appeal, but is otherwise not detailed in any way that the public can scrutinize.

The latest case overturned by the Seattle Police Department's Disciplinary Review Board involved officer Don George who won in arbitration with an arbiter who normally represents employees in labor rights cases, that hearing was binding for the city and resulted in his being rehired after he was fired. Again, only the officer gets to present his case, not the person filing the complaint.

The Third Appeal Level:
The third layer of appeal is the city's Public Safety Civil Service Commission which is comprised of four people. One appointed by the mayor, one by council, one by the union, and one by the other three members. Currently there are more police supporters on the board than anyone else, so appeals here generally rule in favor of the police. Again, while the city is represented, only the officer gets to present his or her side of events, not the actual complainant if that complainant is not the city itself.

The last publicized case
to be overturned by Seattle's Public Safety Civil Service Commission was that of Felton Miles who was fired after being indicted for felony harassment of his ex-wife and her then boyfriend. A jury deadlocked on convicting Miles for the felony charge and, before another trial started, he was allowed to plea bargain the charges down misdemeanor harassment.

The commission then reviewed the case and decided that the department would not have been able to fire Felton for a misdemeanor and shouldn't have fired him for being indicted for a felony. That ruling forced the city to rehire him and pay his back wages, benefits, and other penalties.

The Fourth Level of Appeal:
The fourth layer is the state of Washington's Public Employee Relations Commission (PERC). This commission consists of labor rights attorneys who generally favor employees and unions in disputes against government entities like the city of Seattle. Yet again, the person who filed the complaint is not represented here, just the officer and the city.

I'm not aware of any appeal that made it this far without already being overturned by an appeal to the department or city commission. However, union complaints about bargaining rights and civilian oversight are heard on this level as well and all of those complaints have gone against the city, forcing Seattle to keep police misconduct investigation records confidential from it's own civilian review board.

The Fifth Level of Appeal
Finally, the officer can file a civil suit against the city in federal court. Yet, even in these proceedings, the actual complainant is never represented or present to rebut any claims made by the accused officer, it's just the officer's word against the city's investigative findings and history of disciplinary actions in similar cases. So if the investigation was flawed, didn't ask the complainant the right questions, or the discipline doesn't fit with how the department disciplined other officers in such cases, the city will lose that suit.

When cities in Washington lose on a federal level it's commonly referred to as a matter of discrimination in that the officer will claim that they were singled out for termination when other officers guilty of similar or worse abuses were not disciplined in a similar manner, if at all. Given the lax history of discipline, this is a very easy case to make unfortunately. When officers win at this level they often win more than victims of police brutality win in civil rights violations cases brought before the federal court. (think millions for "wrongfully" fired officers vs the highest paid civil rights violation / police brutality case out of Seattle in the last decade was only $280,000)

As you might be able to figure out by now, even if the city had a very well thought out complaint process and disciplinary guidelines that excluded personal bias in favor of the officer that the current process is laced with, they still face the task of defending their findings through several layers of appeal through which an officer and their hired defense lawyers can hone their defense and get their story just right.

In the end, it is exceptionally rare that an officer is found guilty of misconduct that results in termination by the time the preliminary investigation is complete.

Even more rare is it that the recommended findings aren't overturned by the chief after a Loudermill hearing.

Exceedingly more rare is it that the disciplinary action isn't overturned by the department's own Disciplinary board.

Even more rare is it that a case making it to the city's board isn't overturned by the biased committee members there.

If, by some odd chance, the case makes it to the state's PERC appeal level, I've not heard of a case that wasn't overturned there by the labor rights activists who dominate that committee.

Finally, on the federal level, unless the city has consistently dealt with the same action with the exact same disciplinary action each and every time, the city stands to lose their case and may be forced to pay the officer's back pay and a punitive award in the millions.
During all these appeals the city has to pay for lawyers to represent the city and the union pays for the officer's lawyers in nearly every case, and when the city loses they have to pay costs for both sides, plus any punitive damages awarded to the officer upon successful appeal.

Obviously, this makes disciplining officers a losing proposition for the city, and makes covering up abuses a much more cost-effective choice.

After all, most civil rights cases against the city for police brutality only result in low-six figure settlements in the rare case that they win against a city motivated to hide evidence of abuse, often making a lost civil rights case far less expensive than it costs to try and discipline an officer and lose on appeal.

So, in the end, the problem of police misconduct in Seattle cannot be solved on the local level. There is no incentive for city officials to enact a real effective disciplinary process and ample incentive for the police department and city to work together to hide cases of abuse and leave the abused victims out to dry... It's just cheaper that way.

If Seattle Can't Fix It, Who Can?
The problem of police misconduct in Seattle must be solved at the state and/or federal level first by reducing the number of appeal options available to officers with sustained findings of misconduct and to make that appeal process more fair and balanced by offering the accused a way to present their case without fear of intimidation and false counter suits.

For the civil employment appeal system to be fair to victims of police misconduct, the victim must be represented at these appeals with lawyers of the same caliber as those hired by the union and must have the same access to evidence and witnesses that the police officers and the union have available to them... and the whole process must be transparent to the public to avoid any corruptible influence or bias that is currently embedded throughout all layers of appeal.

Only then is it possible for the city to create a real effective system that investigate complaints in a non-biased manner which gives the victim a chance to challenge testimony provided by officers who were involved in harming the victim and their accomplices.

Only then will the city have real incentive to do that, until then we're just spinning our wheels and will never see a true system of police accountability... police accountability in Seattle must start from the top, at the state level, before a local grass-roots effort can affect any real change.

Until then, police officers have no incentive whatsoever to not abuse the citizens of Seattle aside from their own consciences... and we've seen how ineffective relying on that can be.


Anonymous said...

Sir, police officers have the same rights, no more or no less than John Q Public.... Just because they are LE, and are held to a higher standard than John Q Public, they still enjoy the same right. Please accept this.

Packratt said...

That's an interesting perspective to have on the issue. After all, the appeals I'm talking about are as to what kind of employment related disciplinary actions will be taken against an employee. We're not even talking about criminal trial and appeals, this is just about employment.

In the real world, as it stands, John Q Public works in the private sector where we do not get to appeal why we were fired or laid off for any reason.

My employer, in fact, can fire me for any reason, with just cause or without... no Loudermill hearings for me to plead my case, no five levels of appeal, nothing... just out the door and that's it.

Five levels of appeal for keeping your job even when it's been found that you broke the rules of your employment is, in no discernible way, the same rights that John Q Public enjoy.

It just goes to prove just how out of touch and insular that police culture is, I'm afraid. It's hard to understand how anyone could see any parity between the rights police officers enjoy and the relative lack of rights the rest of us have in that regard.

Thank you for sharing your perception of the issue though, it is enlightening.

Anonymous said...

Packrat- You have a narrow view of a person's work rights. All government employees and employees that have unions, guilds, or labor rights have the same appeals process the police have. If you don't like that there is not much anyone can do about it. Even non-union employees can use fair labor standards rules to appeal unfair work issues, including being fired. If you took a position that is "at will" then that is exactly what you are, an "at will employee." That means your boss can dismiss you, read "fire you", no cause, no reason, no real challange on your part. The exception is if you believe your dismissalviolated the Federal Fair Labor laws. So, in my opinion 90% of the people employeed have some kind of recourse to being fired.
I do however respect your less then knowledgable perspective on this manner.
unemployeed because I choose to be.

Packratt said...


First, you're really comparing apples to oranges here. It's just not comparable to say that my limited rights to challenge perceived discrimination as a private-sector employee (which are limited to claims of racial, sexual, or religious bias) by way of federal court is in any way similar in scope to the employment protections Seattle police officers enjoy with five entirely distinct levels of appeal that they can turn to in order to challenge any disciplinary action for any reason whatsoever, not limited to racial, sexual, or religious bias.

Even comparing a police officer's level of job security to that of a private sector union-shop employee is a stretch of the imagination as they do not have five distinct and biased levels of appeal when they are subject to disciplinary action by an employer. The level of protections are, in no way, similar and I know because I've worked in a union shop before.

It's just more proof of just how skewed the perceptions of police officers are in light of how they just don't see how their labor actions and the level of protection from disciplinary actions are perceived by the general public.

Of course, I'm pretty sure you guys do know just how poorly it reflects on all of the police when the department is ordered to hire back officers who were fired for some pretty just causes.

Mind you, I've admitted in other articles that police officers do need some level of protection from politically motivated disciplinary actions or changes in employment status. But the level of protection they enjoy now has grown so far beyond that initial intent of protection from cronyism that it's hardly recognizable as such anymore.

Thanks for the reply, it was enlightening as always.

Anonymous said...

Five levels of appeal. Good grief! Is this safety net unique to Seattle or do other large cities give bad cops as many breaks as the corrupt hell you live in?

Packratt said...

Well, the best answer I can give is that it really does differ from department to department.

Seattle is unique in Washington state for two of those additional layers of appeal (the departmental review board and the city's review board). These were negotiated into being by the police union with the city back when the city caved into just about any demand the union put on the table. (which is something they still do to a large degree).

So, while Seattle police officers have five different chances to overturn a disciplinary finding/recommendation, an officer elsewhere might have as few as three (the chief, the state, and federal court).

This also varies from state to state. Some states offer the same kinds of protections for police officers while others don't. So it pays to research what the disciplinary rules are for your municipality's police force where you live.

Thanks for the great question, I appreciate it!

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