Recently, more than 125 Seattle police officers filed a private lawsuit in federal court against the Justice Department (DOJ) and Seattle city officials.  They allege that use-of-force policies introduced as part of a federal court consent decree endanger the officers in the lawful performance of their duties. In essence, the lawsuit alleges that the new Use of Force guidelines are unconstitutional.

The guiding light in the proper use of force is set in stone by the Supreme Court as per Graham v Connor, 490 U.S. 386 (1989). In Graham, the Supreme Court concluded that all uses of force in the course of an arrest will be judged by the Fourth Amendment’s objective reasonableness standard. The Court also held that the use of force is to be viewed from the perspective of the officer at the time of the incident without the benefit of 20/20 hindsight.

The suit alleges the principles of Graham were disregarded by the DOJ and Seattle city officials. The Constitution “does not permit judges, or in this case DOJ and its Monitor, to look back in perfect hindsight, from the safety of their chambers or offices, to second-guess what patrol officers actually faced at the moment and know from real experience on the streets,” the suit said.

Seattle Police Officer’s Guild President Ron Smith said that the union does not support the lawsuit. He said, “We’re not going to accomplish anything suing the federal government, suing the mayor of Seattle, suing the police chief — that’s not the way to handle it. The way to handle it is a collaborative process.”

Ron Smith, said of the officers who filed suit, “I knew they were unhappy. I knew they were contemplating this action. I met with them to hear their concerns at their request, back in March. I didn’t hear back from them again.”

Smith said he gave the group “a conduit” to the Community Police Commission, created as part of the consent decree, and that these officers shared their concerns with the commission.

“I assumed they were going to get the policy changed in the areas of concern,” Smith said. “I would like to say the policy is overly broad, poorly written, and somewhat confusing. However, I believe the policy could have been changed with collaboration with the Community Police Commission.”

I commend Ron Smith’s professionalism. Although the Guild does not support and will not fund the lawsuit, Smith did not suggest the lawsuit is entirely without merit. An overly broad policy may very well be causing officer’s to hesitate due to their uncertainly of the newly introduced policies and procedures.

A Consent decree is solemn contract or agreement of the parties, made under the sanction of the court.  In effect, it an admission by them that the decree is a just determination of their rights upon the real facts of the case, if such facts had been proved. A decree is not a judicial sentence.

Most likely, the decree created morale issues in the police department because the agreement between the DOJ and Seattle tends to create an atmosphere where all of the department’s officers, not just those who may have conducted themselves in a questionable manner, are viewed as unprofessional.

In fact, the DOJ’s 2011 investigation indicated that a relatively small percentage of officers are responsible for a disproportionate number of incidents where force was used.  The DOJ criticized the department for not recognizing the pattern. The importance of this finding is that the DOJ found that the Seattle Police Department was composed of professional police officers dedicated to protecting and serving the di5y. The DOJ cited lack of training.as a primary issue. The Seattle Police Department is not corrupt.

Assistant Attorney General Thomas Perez heads the Justice Department’s Civil Rights Division. Perez said that the Seattle Police Department’s practices to assure accountability and public trust are “broken” and that the only sure fix is through court-ordered, long-term reform and an outside special monitor to oversee it.

The lawsuit also challenges the implementation of new policies which have created confusion, and uncertainty due to a complete changeover in the procedure regarding the stop, questioning, and possibly frisk procedure; detentions; use of force; data collection:  and crisis intervention.

The main allegation of the lawsuit is the disregard of the “objective reasonableness” standard cited in Graham v Connor. The lawsuit clearly objects to DOJ’s perfect hindsight. A similar issue was recently addressed by the LAPD regarding Officer Involved Shootings (OIS).

The LAPD Commission recently revised the way it evaluates police shootings. LAPD now reviews an officer’s actions in the moments leading up to the incident along with the officer’s use of force. Focus no longer is limited to the justification of the use of deadly physical force at the time of the shooting itself.

LAPD’s new policy makes it clear that an OIS can be found in violation of the department’s deadly physical force policy if an officer’s mishandling of the situation led to the shooting. The new LAPD policy is focused on introducing to its officers the need for them to take steps to deescalate situations, if possible.

The term use of force or deadly physical force is synonymous with defensive force. Graham v Connor has not been challenged by the LAPD or the DOJ with the introduction of new policies to protect the civil rights of the public and reinforce police officers’ in the lawful performance of their duties.

In view of these recent decisions, very police department must analyze, review, implement, and use its policies and procedures to enhance the department’s reputation and public trust. Up-to-date strategies guide police officers in the lawful performance of their duties.

Training is a benefit to the officers, the department, and the community. Training is an investment, not an expense, and it offsets the need for an outside agency to initiate an investigation or a lawsuit to be filed against the police department.

To learn more:

http://www.komonews.com/news/local/Suit-Seattle-police-say-force-policies-unconstitutional-261017151.html

http://www.seattlepoliceguild.org/

http://seattletimes.com/html/localnews/2022479540_forcepolicyxml.html

http://thelawdictionary.org/consent-decree/

Jim Gaffney, MPA is Law Enforcement Today’s risk management /police administration contributor. He has served with a metro-New York police department for over 30 years in varying capacities, culminating with Executive Officer and PIO. He is a member of (ILEETA), (IACP), and the nationally recognized FBI- LEEDA. Jim is a Certified Force Science Analyst. He mentors law enforcement’s next generation as an adjunct criminal justice professor in the New York City area. Jim brings the street into the classroom to prepare students today for their roles as police officers tomorrow.  He is CEO of Bright Line Consulting and can be reached via www.brightlinepoliceconsulting.com