Seattle police had some issues. Use of force issues. Too much force issues. DoJ issued a report in 2011 that concluded there was a pattern of excessive use of force. It may have been somewhat underwhelming in its breadth for those who found themselves on the wrong end of a gun, but some members of the police force were not amused.
Now that new use of force rules have been announced, the unhappy cops have taken to the court to protect their turf:
In a highly public rejection of federally mandated reforms, more than 100 Seattle police officers filed a lawsuit Wednesday asking a federal judge to block what they called “mechanical” and unrealistic use-of-force policies imposed on them under a court-ordered consent decree.
The 43-page suit alleges policies stemming from an agreement between the city and the U.S. Department of Justice (DOJ) stoked a “bold, new disregard for police authority in the streets of Seattle,” putting officers and the public in unreasonable danger.
The civil-rights suit, filed in U.S. District Court, contends the changes have effectively created “hesitation and paralysis” among officers, stripping them of their constitutional and legal right to make reasonable, split-second judgments in the line of duty.
You read that right. These cops are complaining about “their constitutional rights and legal right to make reasonable, split-second judgments.” Of course, there is nothing about the rules of engagement that bears upon the cops’ “constitutional rights,” unless one elevates the First Rule of Policing to a right to a liberty interest. Perhaps if you squint a bit, you can see a right to use excess force if it means you are assured of your constitutional right to get home for dinner.
And it bears noting that the tropes courts employ to cover their euphemistic deference to police make their way into this “legal right”: reasonable, split-second judgments. They have been repeated often enough to justify turning a blind eye to police errors that cost people’s lives that they are now used as a sword rather than just a shield. It’s not enough that courts cover their mistakes up with this rhetoric, but that they have a legal right to do as they please and be protected by meaningless vagaries.
And what has gotten the Seattle cops so upset?
The new use-of-force policy, which went into effect Jan. 1, for the first time defined “force” as any physical coercion by an officer in the performance of their duties, and advised when it can be used and how much is appropriate under the circumstances.
Officers must report all but the most minimal use of force to supervisors, and shall “use only the force necessary to perform their duties” and “with minimal reliance upon the use of physical force.”
This, they claim, puts their lives at risk.
As a result, officers are afraid to do their job for fear of being second-guessed over burdensome, complicated and voluminous policies, the suit says.
“Aside from evidence that officers are hesitating and/or failing to use appropriate and lawfully justified force to address threats safely and effectively, there is evidence of a dramatic decrease in proactive police work to investigate and stop crime,” the suit alleges in a reference to what some have called depolicing.
The suit alleges officers have turned in Tasers in large numbers because of confusion about how and when to use them and will testify about an “insidious” reluctance to respond to backup calls, all out of fear of being exposed to unreasonable discipline or termination.
In other words, without the comfort zone of being able to use force as any officer deems it appropriate, they refuse to do their job. Curiously, the new “rule” is not to use any more force than necessary. This wouldn’t appear to be a hard concept to grasp, and for most of the sentient world, kinda what we all thought they should have been doing all along. After all, don’t the people for whom police serve have a constitutional right to make it home alive too?
While it’s hard to imagine that this lawsuit has any legs, it does raise a problem that merits some attention. When the rules of engagement are dependent on subjective limits, such as no more force than necessary, it creates a problem for those trying to live by them. Does this mean the cops must wait for the muzzle flash before shooting? If so, it’s a death sentence. That can’t be what they mean.
On the other hand, the use of tasers, because they’re non-lethal except for the people they kill, in lieu of patience or effort or thinking, as the tool of first resort whenever someone annoys an officer or makes him work by not complying with sufficient speed and a smile, presents no threat to the cop but has harsh consequences for the person on the receiving end of the darts.
Bright lines make for clarity and security. Let’s assume that some police situations require, as too often claimed, split-second judgments. Let’s assume that police do not want to kill a person unless they believe the must to save another, themselves included, from deadly force. This works with clear, trainable, easy-to-use rules. Some cops aren’t the sharpest knives on the Sam Browne, and even a thoughtful one will struggle under pressure.
It’s hard to blame a cop for wanting to know what he can and cannot do. And the creation of rules that work better in a courtroom than on the street will neither serve the interest of police or anyone who has the misfortune of dealing with them. The rules must incorporate the proper constraints on force, but they must also be viable.
No, there is no constitutional right for cops to maim at will, but we want an effective police force, willing and capable of doing their job without doing any harm that isn’t fully warranted. It’s not an easy thing to do, and blurred lines won’t help anyone.
H/T Radley Balko
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Hey now, “mechanical” is a word is it not?
Indeed it is. And sometimes, it’s a very fine word.
Yeah, similar to Auguste Rodin and David Bowie finding medium. But otherwise, even I get it.
not so far. near is far.
hey now?;, will mechanics be needed to get there beyond the daily rhetoric?
push or pull?
It seems that this is a self correcting situation. Those officers that cannot perform their jobs without resorting to force as a first line police tool may find the situation such that they leave the profession.
Very true. And it would be poetic.
Self-correcting and poetic? For North Seattle perhaps, but not so much for any surrounding precincts which hire those that choose to leave.
Note that five years ago the lead plaintiff was disciplined (30 day suspension without pay) for dishonest and unprofessional conduct (an unwanted sexual advancement towards an 18-year old Explorer cadet). The dishonesty allegation was tossed during the review process.
What Caesar said when divorcing Pompeia comes to mind…
I have looked for a copy of the complaint but haven’t found it yet. I cannot fathom what the constitutional right the lawsuit is based upon. I also see that no attorney filed it which, I think, is significant.
No attorney, but there was a guy in a tin foil hat who helped.
Mahoney v. Holder, et al, 14-CV-0794-MJP (W.D. Wash.)
It looks like each individual plaintiff officer has signed the complaint, the complaint is pro se without an attorney of record listed.
The officers claim that their Second, Fourth, Fifth, and Fourteenth Amendment rights have been violated. It appears to be primarily a 43 page rant, with an additional 37 pages of signatures and lists (mainly signatures).
The causes of action are:
“VI. SPECIFIC CONSTITUTIONAL VIOLATIONS UNDER TITLE 8 (UF Policy)”
(Below are paraphrased)
A. The reasonableness of officer actions will be based on “Actual Facts and Circumstances” instead of what is perceived by the officer.
B. It forces officers to use less force than reasonably required.
C. The mentally ill should be treated differently, forming separate classes for the use of force, and officers are not medical personnel, which causes problems for the officers.
D. Policy violates the Fourth Amendment requirement that use of force decisions are based on the officer’s training and experience.
E. Police is confusing, so officers can’t make reasonable judgments in a split second and have to take risks towards their own safety.
They are seeking injunctive relief, a declaratory judgment that the policy is unconstitutional, compensatory damages for lost wages from disciplinary and other actions, punitive damages, and attorney fees.
The punitive damages are apparently based on “based on Defendants misinformation
about, and ungrounded maligning of, the good work of patrol officers, as well as
Defendants consistent disregard for clearly established standards regarding use of force and
concomitant disregard for Plaintiffs livelihood and safety. Plaintiffs also seek punitive
damages for City and departmental resources and funds redirected away from the needs of
patrol officers and wasted instead on the production of an unreasonable, unconstitutional UF
Policy, well beyond the scope of the original Memorandum of Understanding and placing at
unreasonable risk the lives of officers and the public.”
Other than the references to the Bill of Right amendments, 42 U.S.C. 1983, and 28 U.S.C. 1331 (which is miscited), there is no authority for any of their claims anywhere in the complaint.
I don’t see a claim in it at all.
ECLS
Thanks for the detail.
Anyone who deals with humans faces an infinite variety of messy situations and interactions. Bright lines are nice and simple because they produce binary thinking that even a machine can follow. Of course, as long as the machine follows the lines, it can’t be held responsible for an undesirable outcome (which is no doubt a great relief to the machine and the only reason it doesn’t refuse to carry out its function).
How do you divide the messy into bright-line clarity so that even the dullest humans can deal with it? Too few lines and you can’t distinguish the drunk from the diabetic or the hostile from the deaf/mute. Too many and you create grocery clerks following checklists, which is hard to do in a split second. Draw enough lines in a limited space and they start to blur, yet you will always find some new situation where a distinction should have been made, calling for the addition of yet one more line. Eventually all the lines will blur.
Bright lines will always be some part of the solution, but maybe not the most important part. Dealing with what is between the lines is going to take something other than just adding more lines. Adjustments must be made to distorted views of reality and risk, to priorities that may be counter-productive, and to improperly-weighted values.
Nobody said it was easy, but there’s a reason why it’s called the lowest common denominator.
Sir, (howdy) despite reading it twice and failing to locate the belated April Fools! (I was sure that you blurred out), I’m forced to start the day out with a hardy WTF? It’s probably too late to call for them to turn in ‘all’ lethal weapons and pass out my latest solution to (THS) trigger-happy-syndrome – enter the Hydro-Golf-Ball-Gun w/ live HD feed auto-activation when the safety is turned off & nun-hydro-chucks for close encounters.
With 100 disgruntled cops running around Seattle with the same mentality and attorney (and free coffee), this SJ posting will eventually be Updated with event(s) that lead to the termination or removal of the entire police force (Marshal Law / Malingering?). But, with the Gypsy Cop Club discounts in place, they’ll be welcome with open arms by sanctuary cities that don’t give a rat’s ass about F-5 forms and notches on gun-belts.
I’m curious as to what the rest of the police force, the mayor, the city council, the city manager, judges & taxpayers have to say about this weird retaliation / decop tactic (but not limited to Seattle) and might as well be open to what lawyers have on their minds. Dallas, Tx. embarked on art of decopping years ago and now there are more neighborhood watches, citizen patrols & surveillance systems. Believe it or not, due to decopping spreading to all 254 counties & crazy old lady labels put on callers, seniors on my street refuse to call 911, they call me instead. Staying tuned while cringing. Thanks.
What a nightmare life is becoming.
There are always nightmares. And daydreams as well.
These guys can’t possibly have standing.
Anyway, as was pointed out in the post, the plaintiffs can’t honestly have an issue with the requirement to only use reasonable force under the circumstances. Or, one would think. So, it must be the oversight of their ability to correctly employ the standard that bothers them. They liked the old days where the internal investigations absolved them or folks had to piecemeal 1983 claims.
Pure grandstanding.
Of course. It’s all self-serving, so they don’t lose a great job and pension for an ill-advised tasing.
Perhaps it is just me, but aren’t the Seattle Police possibly running afoul of the classic “people in glass houses shouldn’t throw rocks” aphorism? While many judges may be willing to ignore DOJ reports or news stories or Radley-Balko-and-his-ilk books detailing police abuse, this lawsuit, if it proceeded, could result in the relevant court finding, as a matter of fact, that the Seattle Police do, in fact, engage in excessive violence, often rising to the level of potential constitutional violation (admittedly, the case would be civil, but if the Seattle PD raises the question of its Constitutional rights, a court could well conclude that their “rights”, if any, don’t cover certain acts they were found to have committed in violation of citizen’s Constitutional rights). If so, might not a future prosecutor in a criminal matter find it much harder to convince a court to exclude the finding as irrelevant, since it comes from another court and would not require an expert to introduce?
Perhaps I am being naive, but this seems like a losing gambit for the Seattle Police.
If this actually went to the end zone, there might be some concern, but this will never get past summary judgment. The claim is utterly ridiculous, other than as an indication of these cops’ mindsets.
There are additional problems going on here in Seattle. Recent stats reported in the Seattle Times have confirmed what I’ve seen as a PD over the last few years. Arrests and citations for misdemeanors and traffic violations are way down from a few years ago. It is very rare for me to get a police report on a misdemeanor case that doesn’t start “responding to a 911 call…” unless it’s a DUI or DWLS (and those come from the same small group of officers). Few on-views, little active policing.
The officers have decided its not worth their time and effort to actively do their jobs unless a radio call comes in. In their minds, why do so when the public hates them so much?
Helps out our usual clientele by letting them do what they will as long as nobody is bothered enough by it to call 911, but probably not the best thing for the City as a whole and definitely bad for headcount at the office.
There is so much wrong with this, as I’m sure you know. Sounds like there needs to be a major attitude adjustment. Thanks.
Background: I work with public defenders in Seattle and King County.
I am incredibly disappointed that you are falling for the analysis and report from SPD a couple of weeks back. Have you looked at the numbers or even the charts they provided? The conclusion that Seattle Police have been “scared” into depolicing because of the DOJ investigation and consent decree is spurious on its face. The numbers show a steady decrease in contacts over time and do not account for variation in charging standards and policies of the City Attorney during the relevant time periods.
Moreover it is ludicrous to draw the conclusion that officers don’t participate in active policing by simply looking at misdemeanor and traffic charges. There is a lot more to the picture and if you look at the data, these officers spend a lot of time in unstructured or administrative work which could be explained by many changes in policy outside of the DOJ situation.
Finally, you cannot seriously be a PD in Seattle and not have noticed the consistent issues we have had this year with officer involved shootings. Off the top of my head I can think of several: the man killed in SoDo because he had an airsoft gun, the mentally ill man killed in Magnolia during a confrontation with SPD officers, and the two gangs detectives who shot a man in the ass because he was armed and running from them. This is the department that is scared of using force? In a city as safe as Seattle, this would be laughable if it wasn’t destroying so many lives.
The officers of SPD need to step it up and accept these clear lines on what is acceptable use of force. I think training from the federal monitors will help. If not, they can leave. I don’t think being an officer is an easy job but I have no sympathy for people who stick around in a job they cannot handle. Seems like these 123 officers are struggling with that.
Let’s start at the end of your comment. In no way did I assert that the SPD is afraid to use force. As you highlight, there are still troubling uses of force happening. But the fact that inappropriate uses of force are occurring does not lead to the conclusion that depolicing isn’t happening. There’s no contradiction in saying that SPD is disgruntled over the scrutiny and therefore not working very hard at stopping low level crime but that when they do get involved in sticky situations they use inappropriate force. No one is saying they are scared, just disgruntled.
Yes, the City attorney’s office has had changes in policy, most of which relates to the filing standards for low level DWLS 3 charges and prostitution charges. But there are more changes in the numbers than just these sorts of filing standard changes. How do explain the absolutely massive drop in infraction filings?
Even the “steady decline” fits in with the idea that SPD’s morale and dedication might have been steadily declining as they could see the DOJ investigation coming, happening, and then the aftermath.
Finally, have you been reading the more than 300+ a year misdemeanor police reports that I have and seen how the vast majority of non-DUI or DWLS cases are initiated from 911 calls? And you don’t notice how this is different than how it was five or ten years ago? And you’re telling me you haven’t heard the same rumors and whispers from cops and from PDs with friends on the force that this is what’s happening?
You’re correct that the instances of inappropriate use of force do not exclude the possibility that other officers are participating in depolicing. That wasn’t the best argument on my part.
And you’re also right that you did not say that SPD is scared to use force, that is the popular line being trotted out in the media here. You went with the much more disturbing assertion that they are disgruntled and are therefore not doing their jobs. If you’re right, I definitely want those officers gone. I expect police officers to act like adults, not pouting babies.
Before I say anything else, I have to insist you look at the charts put together by SPD themselves. I believe linking is against the comments policy here but you can find the presentation easily by searching “Initial Data on SPD Enforcement Patterns”. The presentation was assembled by Bob Scales if that helps.
There is a wealth of data included in the report, but it is most enlightening for this discussion to look at the first section of slides. The majority of the charts go back to the early or mid-2000s and when I stated there was a steady decline in offenses and infractions, I meant over the entire time period. Granted there are appear to be a couple spikes but these are taking place before 2010.
I can’t find anything in the charts that indicates a “massive drop in infraction filings”. Since 2004 infractions have dropped a total of 71% but in reality the decline began before 2008 and has continued at a fairly steady pace since that time. Criminal filings in municipal court are about the same.
As for whisperings, I talk to officers all the time. The most common complaint I hear is regarding the media’s portrayal of the department and that they feel the community resents them. The vibe I get is that they are disappointed more than disgruntled.
Finally, I don’t see the issue with officers spending time answering 911 calls instead of issuing infractions. “Active policing” doesn’t have to mean citing people or arresting them, although that is the only metric the media seems to pay attention to. In reality, the picture is much bigger. The media is doing us all a major disservice by ignoring that reality – the result is evident in the beliefs and tone of your comments. Please check out the data.
Hum, I wonder if I would get arrested for tagging all the heavy machinery that is digging that tunnel in front of your fine city with some 3M blue tape adhesive stickers of guys dressed in pinstriped uniforms very similar if not exactly like the ones in our esteemed hosts banner?
I have always wanted to go on a midnight clandestine non descript SJ tagging jamboree in some urban metropolis or another before I get my knee replacement.
I think I will have to move Seattle up in the rankings.
Thanks for the info.
Pretty risky considering I cant run worth a damn or jump fences anymore, but what’s the worst that could happen? If my case lands on your desk I am pretty confident considering the adhesive used that I wouldn’t take up too much of your time and we can get-er knocked down to littering without even having to call the prosecutor. A few emails will probably suffice.
P.S. PD’s rock! Well most PD’s rock anyway. You probably rock though.
P.S.S ever been to that Blue Moon Bar near the University of Washington. Is it a whiskey bar or a college beer bar? I have always wanted to go in that place but have never found the time. If it is a whiskey bar I am going to go there to get fortified for my clandestine sticker tagging mission if Seattle rises to the top of the list. Should be able to afford the cab ride too.
Don’t count on it. Seattle City’s attorney’s office standard offer for tagging is a two year dispositional continuance (where charges remain open for two years with a dismissal coming if you complete conditions, and a stipulated facts trial on the police report if you don’t) with conditions of no criminal law violations, 60 hours of community service (120 if you caused enough damage) no contact with any co-defendants, restitution to the property owner, maintain education or employment or employment search, and possess no “tagging” materials such as sharpies, name tag stickers, spray paint, glass cutters, etc unless at place of employment.
They will not budge from this unless you’ve got some real proof issues to present them with.
I’m pretty sure it wasn’t a serious question.
Of course not. I just never pass up an opportunity to tell others about this ridiculous policy when the topic comes up.
Let’s not forget whose soapbox this is. Hint: not yours.
You got you one of those trade mark thingies or what esteemed one?
😉
Thanks Seattle PD.
I will have to ask around about the Blue Moon and definitely go with the blue tape adhesive if Seattle is to be.