The Washington State Supreme Court this week declined to hear the Seattle Police Officers Guild’s (SPOG’s) petition challenging the Division 1 Court of Appeals ruling, which upheld an 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. Because the Supreme Court declined to hear the case this week, the Court of Appeals decision stands, meaning the original termination decision from 2016 is upheld. Adley Shepherd remains terminated from employment at the Seattle Police Department following the 2014 incident.
Seattle City Attorney Pete Holmes said, “The court’s decision means that Officer Shepherd will rightly remain ‘Mr. Shepherd.’ Based on his clear excessive use of force, I was confident in our success at the Supreme Court, but I’m glad to have this matter decisively concluded without the need for oral argument. My thanks goes to the excellent legal work by Assistant City Attorney Sarah Tilstra who argued this case at both the Superior Court and appellate level.”
Mayor Jenny Durkan said, “Arbitrators reversing the decisions of the Chief and reinstating officers after an officer uses excessive force deeply impacts accountability and public trust. Officer Shepherd’s termination was the right decision, and the courts have found that SPD and the City appropriately refused to reinstate Officer Shepherd. Most importantly, we know the city’s actions have now set a broader precedent that cannot be ignored in arbitration: arbitrators cannot overturn a decision that is so contrary to a police department’s policy and values.”
Councilmember Lisa Herbold, Chair of the Council’s Public Safety and Human Services Committee, said, “That the WA Supreme Court declined to hear SPOG’s appeal confirms that public policy against police use of excessive force must not be undermined by arbitration decisions. Further, there remains an urgent need for arbitration reform, which Judge Robart has identified as a key reason the City was out of compliance with the Consent Decree.”
The Court of Appeals decision, which is now unchallenged, 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.”
As the City noted in the most recent quarterly update with U.S. District Court Judge James Robart, the Court of Appeals decision sets “significant precedent” and “is likely to have ripple effects in police disciplinary appeals throughout the state. It is critical for public confidence that Shepherd remains terminated. However, the broader precedent set by the Court of Appeals may be even more important. The decision cannot be ignored by future arbitrators in SPD disciplinary matters—and arguably throughout the state, given the broad nature of the reasoning which relied on the Fourth Amendment and federal statues, as well as the Consent Decree.”
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.
City Attorney Holmes, Mayor Durkan, and Councilmember Herbold advocated in Olympia earlier this year 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.