Does the Seattle Police Consent Decree Allow Divestment and Reinvestment, to Further Its Purposes? Absolutely. 

Monday, August 9, 2021
As Seattle prepares to head into budget deliberations for the City’s 2022 budget, it is important for decision makers to understand that the Seattle Consent Decree does not stand in the way of making changes to the Seattle Police Department (SPD) budget. Since the Seattle City Council’s vote last fall to make initial divestments from SPD, misinformation has emerged about the SPD consent decree case and what actions the City can or can’t take under its provisions. The misinformation is spreading confusion in the wake of widespread calls, from those communities most impacted by policing, about shifting resources away from problematic police functions and promoting community reinvestment to reduce police violence and thereby improve the health and safety of our communities. In 2012, the ACLU-WA was one of the many groups that requested the federal Department of Justice Civil Rights Division investigate egregious excessive force, over-policing, and biased policing incidents occurring at the time, which ultimately resulted in the creation of the consent decree. As such, we write to explain how the consent decree does not prohibit a divestment/reinvestment approach, which we argue remedies the very problems which gave rise to the decree. 

Background of the Consent Decree

In 2010, 35 community organizations, including the ACLU-WA, requested a federal Department of Justice (DOJ) investigation of excessive use of force and biased policing against people of color, by the Seattle Police Department (SPD). The following year, the DOJ investigation of SPD found, among other things, “a pattern or practice of constitutional violations regarding the use of force that result from structural problems, as well as serious concerns about biased policing.” As a result, since 2012, the City of Seattle has been under federal court oversight per an agreement known as a “consent decree,” overseen by Judge Robart. The consent decree requires the City to implement systemic reforms “with the goal of ensuring that police services are delivered to the people of Seattle in a manner that fully complies with the Constitution and laws of the United States, effectively ensures public and officer safety, and promotes public confidence.” The consent decree also approved the creation of the Community Police Commission (CPC) to ensure the community had a seat at the table in police accountability discussions.

The original consent decree documents (the July 27, 2012, Settlement Agreement as modified by the Court’s September 21, 2012, Findings and Conclusions and Order Approving the Stipulated Settlement) specified actions that must be taken to bring the City into compliance with legal requirements regarding use of force and biased policing. SPD policies on use of force, Terry stops, biased policing, and others were overhauled, with input from the CPC. Involving community voices in developing these policies, through CPC input, was a big improvement by itself, as the ACLU-WA explained in a 2014 blog post.  The policies developed as part of the consent decree clarified and limited when certain tools that had been problematic, like Tasers, could be used. The use of force policy also was an early adopter of the “objectively reasonable, necessary and proportional” standard, and later served as a model for state legislation imposing limits on police use of force statewide. 

In early 2018, the City reached a point where it was found in compliance, based in large part on the adoption of the new policies and evidence at the time indicating the policies were reducing force and biased policing. The City then began the “sustainment” phase of the case, requiring it to prove it could sustain compliance for a full two years; 16 months later, SPD fell out of compliance. On May 15, 2019, Judge Robart ruled that the “City had fallen partially out of full and effective compliance” in the area of discipline and accountability. The judge was “incensed over a provision in the city’s new police union contract that required the department to rehire an officer who was fired for punching a woman while she was handcuffed.” Judge Robart subsequently requested proposals to remedy SPD’s accountability problems but the City has avoided addressing this request (see here and here) ever since. To this day, the City has not provided a remedy, and remains out of full compliance with the Consent Decree.

The Consent Decree was Intended to Empower Community Voices

The original consent decree documents also recognized the CPC – a body consisting of community voices – as a key component of bringing the City into compliance and achieving accountability. The Settlement Agreement, paragraphs 3 and 4, stated “Effective and constitutional policing requires a partnership between the Police Department, its officers, community members, and public officials. … The community is a critical resource. … Moreover, ongoing community input into the development of reforms, the establishment of police priorities, and mechanisms to promote community confidence in SPD will strengthen SPD and facilitate police/community relationships necessary to promote public safety.”

The creation of the CPC was intended to empower community voices in a way that few, if any, consent decrees in the U.S. have done. The CPC has repeatedly filed documents in the consent decree case, pointing out when the City has fallen short of compliance and recommending actions to achieve the constitutional policing Seattle residents are entitled to. As recently as July 2021, the CPC again fulfilled this role when it filed a brief in the court case asking the court to (after 2 years) require the City to bring themselves into compliance as to accountability, and asking that the Monitor be required to take certain actions to improve the discipline process. However, the court has now stricken the CPC’s request because the CPC is not an official party to the case; only the City and U.S. are. It remains to be seen if the community’s voices, including those calling for a divest/reinvestment approach and shifting some public safety functions away from police, will be heard at this crucial point in time in the consent decree case. 

The consent decree does not prevent changes to SPD’s budget, particularly when the changes would aid in reducing force and bias and improve accountability

An analysis of the original consent decree documents demonstrates there is no explicit prohibition on making significant changes to the SPD budget. The consent decree does not make any part of the budget untouchable nor does it mandate particular staffing or the existence of certain units and there is nothing in the Consent Decree to indicate that the units must be SPD units.  Indeed, the 9/21/12 Order approving the Agreement expressly approved “re-organizing” government agencies or entities with functions related to SPD, so long as that would be consistent with the Decree. In other words, the budget question is a separate one from whether the City has complied with the Decree and fulfilled its specified purposes.

In fact, the language of the consent decree leaves quite a bit of flexibility about how certain functions of SPD will be performed. Importantly, there is language around the fact that Seattle has “appropriate flexibility” to find solutions tailored to the needs of the community, including the fact that “Seattle will have the ability to develop local and cost-effective solutions.” The Settlement Agreement paragraph 170 states, “The Parties recognize that there may be alternative ways to implement the terms of this Agreement. The City is free to choose implementation strategies it deems appropriate so long as they are not in conflict with the Settlement Agreement terms.” In other words, the functions of the consent decree must still happen but there is flexibility in terms of the mechanisms for how functions and goals are achieved.

It is also worth noting that the Agreement contains language about how things “normally” or “typically” go. This Agreement was created a decade ago, when no one could have anticipated a global pandemic and the local reckoning with systemic racism and police violence in the wake of the police murder of George Floyd. The terms of the Agreement are subject to the changes created by this movement, which have been paradigm shifting, creating new possibilities for achieving public safety.

Just in the last couple of weeks,  Mayor Jenny Durkan proposed the creation of a new specialized triage response to provide alternatives to sworn police response, finally recognizing that functions like responding to people in mental health crisis or traffic enforcement need not be handled by uniformed police with weapons. Presumably, this proposal would involve shifting around money in the police budget. It demonstrates that nothing in the consent decree prohibits changes in the budget and in fact the purposes of the consent decree would be served by doing so. 

The City Can Save Money by Complying with, not Resisting, the Consent Decree and Taking Action to Strengthen Accountability and Restore Community Trust through Divestment and Reinvestment

As noted above, Seattle remains out of compliance with the consent decree. Racial bias still persists; SPD’s response to protestors, including excessive use of force, has been a serious problem; and important accountability improvements were watered down by the contract the City negotiated with the police union.[1] It is apparent that the City needs to take action to solve these problems, and taking action can include shifting money away from police functions, like routine traffic enforcement, and crisis intervention where better methods are available. Too much money has been spent on aspects of the consent decree case that did not remedy the problems at issue.   

Many community groups have called for a different vision for addressing the persistent problem of police violence: divesting from SPD and reinvesting that money back into the community. These groups argue that despite many years, and millions and millions of dollars dedicated to policing reforms, reforms have been ineffective at transforming policing by SPD in fundamental ways. Police violence, disproportionately against Black, Indigenous, and Latinx people, continues because policing is an inherently racist institution.[2] A divestment/reinvestment approach recognizes the harmful social costs of policing and accordingly seeks to shrink the role and power of the police in community safety, namely through reducing their outsized budget and reallocating that money to critical city services, such as housing and human services, that are chronically under-funded. Under this approach, public safety is achieved not through policing but by alleviating the social and economic conditions that lead to crime, such as poverty, and by creating responses to harm that don’t involve armed policing and imprisonment.

A report recently came out that strongly suggests that clearer benchmarks and measures for success as well as the community input are critical for the success of a consent decree. The report points to more recent police agreements in Newark and Ferguson, Mo., in 2016 and Baltimore in 2017 that capped monitors’ salaries, mandated community input and established periodic performance reviews. One expert recommends “a structure for the department and the community to go forward towards an ‘A’ in public safety,” even after a consent decree ends based on compliance.

In conclusion, an analysis of the Consent Decree documents shows the issues of compliance regarding use of force and biased policing, budget, and achieving accountability and community trust are complex.  Reductions in SPD’s budget can and should occur. The Consent Decree is not the cause of the ongoing problems with policing in Seattle; it should not be used to distract from the real problems that exist and finding solutions to them. The City must do more to address SPD violence. At the same time, community voices urging changes that could achieve public safety for all should be heeded.
[1] See, e.g., media coverage of reports from the Office of Police Accountability and Office of Inspector General [here, here, and here]; testimony from ACLU-WA Executive Director Michele Storms urging rejection of the SPOG contract;  community letter sent to Seattle City Council rejecting the contract;  federal judge finds SPD in contempt after finding multiple violations of court orders barring indiscriminate use of chemical weapons and other less lethal weapons.
[2] Fichtelberg, A. (2019). Policing in America: The Early Years. In Criminal (in)justice: A critical introduction (p. 119). Thousand Oaks, CA: SAGE Publications.
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