The Washington State Division 1 Court of Appeals issued a decision today which upheld a Superior Court order vacating an arbitrator’s decision to reinstate Officer Adley Shepherd after he punched a handcuffed suspect in the face while she was seated in the back of a patrol car, fracturing her skull. In 2018, former Chief Carmen Best, with the support of Mayor Jenny A. Durkan, made the determination to not reinstate the officer, and City Attorney Pete Holmes sought review in King County Superior Court. Per today’s ruling, the original termination decision from 2016 is upheld, which means Adley Shepherd remains terminated from employment at the Seattle Police Department following the 2014 incident.
Seattle City Attorney Pete Holmes said, “Mr. Shepherd’s conduct was so blatantly excessive that I’ll defend this through to the Supreme Court if necessary. His conduct undermined public faith in the police department, and his reinstatement violated the clear public policy against excessive use of force in policing. I’m breathing a sigh of relief that SPD will not be forced to reinstate him.”
“Officer Shepherd’s termination was the right decision, and the only decision consistent with our city’s values and use of force policies. The arbitrator’s choice to reinstate former Officer Shepherd was wrong from the outset, and the City and the City Attorney’s Office rightfully pursued all legal options to uphold his termination. SPD should not be forced to employ an officer whose actions and use of force are so contrary to SPD’s policies and values,” said Mayor Jenny Durkan. “Seattle also should not be forced to go to court to overturn an arbitrator’s decision – it’s why we fought so hard for statewide reform to arbitration in Olympia this year. Our city is not alone in having to reinstate previously terminated officers – in police departments across the state and nation, arbitrators are reversing discipline decisions in most cases. Reinstating officers after an officer uses excessive force, exhibits overt bias or lies deeply impacts accountability and public trust.”
Councilmember Lisa Herbold, Chair of the Council’s Public Safety and Human Services Committee, said, “This important decision underscores that arbitration decisions must not be used to undermine existing public policy against the use of excessive force in policing. Further, the court’s decision points to a pressing and urgent need for arbitration reform, which Judge Robart has identified as a key reason the City was out of compliance with the Consent Decree.”
City Attorney Holmes, Mayor Durkan, and Councilmember Herbold advocated in Olympia for SB 5134 and to create additional minimum and uniform standards for the discipline appeals process for instances when an officer is disciplined for misconduct.
A Washington Post analysis of 1,881 officers fired by the nation’s largest police departments from 2006-2017 found that “departments have been forced to reinstate more than 450 officers after appeals required by police union contracts.” A recent analysis by Stephen Rushin found that arbitrators on appeal reduced or overturned police officer discipline in 52 percent of these cases. In 46 percent of these cases, arbitrators ordered police departments to rehire previously terminated officers.
The Court of Appeals in their decision today said, “The Discipline Review Board’s decision reinstating Shepherd is so lenient it violates the explicit, well-defined, and dominant public policy against the excessive use of force in policing. Indeed, the Discipline Review Board’s decision 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. Such a message cannot be squared with the public policy against the excessive use of force in policing, which we hold imposes on the City an affirmative duty to sufficiently discipline officers.”
Holmes added, “I also want to acknowledge the remarkable legal work of Assistant City Attorney Sarah Tilstra who argued this case at both the Superior Court and appellate level.”