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To force action, judge takes police reform to the brink

It was a remarkable thing to say, “Black Lives Matter.” And when U.S. District Court Judge James Robart said it, the courtroom inhaled. After all, the robed figure in charge of the settlement between the Department of Justice and the Seattle Police Department does not have a civil rights background. The 69-year-old wears bowties and glasses and before being appointed to the bench by George W. Bush, he was largely a contract lawyer. Through his years of overseeing the march toward police reform in Seattle, his fierce loyalty to the language of the settlement agreement has occasionally made him look uninterested in the reality of activists and advocates.

Remarkable as it may have been, however, Robart also said something else that day. For as many headlines as “Black Lives Matter” won, the senior justice also spoke in blunt terms about the collective bargaining rights of Seattle’s police unions.

There is a long history of push and pull between the federal government and the state-level rights of unions. When Robart spoke — prompted in part by a series of news reports and a letter from the Seattle Police Officers Guild— he warned he would do what’s necessary to sidestep the bargaining process that unions cherish if they got in the way of federal reform. “To hide behind a collective bargaining agreement will not work,” he said.

For some, his threats were encouraging — an extension of saying “Black Lives Matter.” The national Fraternal Order of Police endorsed Donald Trump for president and for many in the BLM movement, the oft-conservative police unions represent everything wrong with law enforcement. On the surface, reform would be so much easier without them.

But in threatening to steamroll state collective bargaining rights, Robart wrote an enormous check, which many are skeptical can be cashed. Even some of the staunchest reform advocates question what, exactly, Robart hopes to accomplish by threatening to drag the unions into the fight.

And now that fiercely pro-law enforcement Sen. Jeff Sessions will lead a Donald Trump Department of Justice as Attorney General, some worry that if Robart makes good on his threat and the unions end up in court, the case could land in the totally strange scenario of the plaintiff Justice Department abandoning its case and the defendant City of Seattle begging to be sued.

Three days before the election, Seattle City Attorney Pete Holmes was in Texas, attending a conference on consent decrees like Seattle’s, which have been used by the DOJ since the ‘90s to reform local departments. They can be blunt and expensive tools, but Holmes is an evangelist on their behalf. As someone who’s seen past attempts at reform evaporate, Holmes believes involving the feds is the only way to make change stick.

When a 2010 investigation turned up excessive force and patterns of bias in Seattle’s police force, the DOJ sued, and the city avoided trial by settling. It’s important to remember that, in settling, the City of Seattle never admitted guilt. It’s also important to note that the police unions were not parties to the settlement. Show up in Robart’s court and police union representatives will be in the audience, not before the bench.

As Holmes discussed all this on a panel at Texas A&M, alongside Seattle Police Chief Kathleen O’Toole, there was no consideration that Donald Trump might win. “It was not on anyone’s mind that there would be a radical change,” he says. “It was just one thing we didn’t discuss.”

But the unthinkable happened. In the days immediately following Trump’s election, Holmes and representatives from the DOJ shrugged off any threats his election presented to the consent decree. The case was in the hands of Robart, they said, and the progress made could not be turned back.

That may be true, but more than a month after the election, worry has crept into the voices of Holmes and others that Crosscut spoke to for this story. The consent decree will not vanish, but when considering prospects of putting it to bed, the future is less clear.

Especially, some say, if Robart follows through on his threat to override collective bargaining.

It started as something of a dare. The rank-and-file union, the Seattle Police Officers Guild (SPOG), and the leadership union, the Seattle Police Management Association (SPMA), sent a note to Robart in response to recommended changes to the Seattle Police Department. A number of those recommendations, claimed the letter, “would violate the collective bargaining agreement between the City of Seattle and SPOG and the City of Seattle and SPMA.”

The organizations argued that their right to bargain substantive changes — even if they stem from a federal lawsuit — stood strong, because there was never any admission of guilt. Because the unions were not parties to the settlement, there was never proof of the unions violating anyone’s constitutional rights. Unless the court could prove they were in fact guilty of something, no federal case could ignore the unions’ contract with the city.

President of SPOG Kevin Stuckey says it was supposed to be a “reminder,” not a shot across the bow.

But after Robart received the unions’ letter, he responded harshly in court. “If I see that a labor organization is resisting needed change … I will decide if the report issued by DOJ is accurate and that will constitute judicial determination of liability. When that happens, the court will be free to make whatever changes it likes.”

Stuckey says he was astonished. “It’s kind of mind boggling, this perception that somehow the cops are the ones holding his up…. We don’t have a choice. That ship has sailed. Whatever he says we’ll do. We’ll make it work because we don’t have a choice. So I don’t understand where the anger comes from.”

According to Jonathan Smith, a former attorney with the Justice Department, Robart’s threat is not uncommon at the outset of a case like Seattle’s.

“What the courts have said is that, in these circumstances, there’s a couple of paths that can be taken. One: the city should renegotiate the contract,” working with the unions as the city is doing now. “The second way (is) … the court can make a ruling that the only way that the violations of people’s rights around use of force can be cured is the abrogation of the contract.”

There’s precedent for the second path. In places like New Orleans or Portland, the unions themselves were found to be, in essence, violating the constitution and therefore not entitled to their contracts. But that finding has always happened at the beginning of a settlement, never partway through as Robart has threatened. There’s no legal precedent for what happens then. “Coming in so late in this is pretty uncommon,” says Smith.

Because no one ever admitted guilt in the case, the findings of the DOJ have never been verified in court. Whether he was threatening to go back in time and find guilt where none was admitted before, or whether he believes the unions have made themselves liable since the ruling is unclear.

“A violation as of what date?” wonders co-chair of the Community Police Commission, created under the consent decree, Lisa Daugaard. “A finding that the city was in violation in 2010? A finding that the city is in violation now? A finding that union behavior contributed to the city’s violation? It’s very unclear that any of those are the right standard.”

Holmes agrees that these are uncharted waters. “That’s the question that hasn’t been asked,” he says. “If a union wants to join [the lawsuit], they may, but can they be compelled to join?”

Every federal case takes a roulette spin before landing in the lap of a district court judge. When the Department of Justice case went to Robart, there were some grumblings. “I think when the case ended up in front of Judge Robart, some people said, ‘that’s too bad, he doesn’t have a background in criminal justice, he wasn’t a state court judge where you get more police,’” says U.S. District Court Judge Robert Lasnik. For some, a judge that meets this description — like Richard Jones, Ricardo Martinez, or Lasnik — would have been preferable.

Publicly, though, Robart has received praise. “In retrospect,” says Lasnik, “it’s great to have someone who doesn’t have pre-existing background with SPD or the City Attorney,” allowing him to enter the case without any baggage.

“He has a very good reputation,” says Smith, the former Justice attorney. “I understand him to be thoughtful and careful.”

Others, though, see a judge operating without experience in police work, and a cavalier and isolated approach toward deciding what needs to be done. Accurate or not, some imagine Robart, alone in his chambers, poring over briefings and news accounts without listening to anyone but the monitor overseeing the case.

At a Community Police Commission meeting last year, this sentiment came up after Robart asked for more time on accountability recommendations. This was work the CPC members believed they’d already finished.

“We’ve met thousands of hours on these issues,” said CPC co-chair Harriett Walden. “Somehow there seems to be a gap between what the judge knew and the work that’s going on.”

There is, however, one thing most voices agree on: He’s tough and he’s frank. He’s shown flashes of this in his court proceedings, scolding members of the CPC for going outside of their lane, and dissecting the word choices of lawyers making their case. Several people agreed that if Robart makes a threat against a union, you could bet he means it.

Since the federal government has pushed local police reform forward, the unions have pushed back. A piece from the publication In These Times found “at least seven cases (where) collective bargaining agreements presented a roadblock to achieving key reforms required by the settlements.”

Seattle’s unions, especially SPOG, don’t have great reputations among many advocates, largely because of their tone-deaf social media behavior and fierce opposition to any officer firings.

Daugaard acknowledges some of this behavior. But even as an outspoken social justice advocate and occasional rabble rouser in City Hall, she’s protective of the unions and doesn’t equate them with national trends.

“We are on record as saying, even if there could be circumstances where it could be appropriate to pierce states bargaining rights in the service of protecting the civil rights of a group, there would need to be a showing that labor’s exercise of those rights was part of the problem or was specifically denying civil rights. That is not in evidence.”

On the contrary, Daugaard said they have “overt statements from union leaders that they will not block” reforms. Jonathan Smith agreed, saying when he worked in Seattle the unions were always willing to come to the table. He noted that when 120 officers challenged new use of force provisions, the union did not sign on. “They were not happy with us all the time,” he says, “but they always met with us.”

In an interview with Crosscut, Stuckey expressed a willingness to accept reforms. “Currently in our country right now, police officers are not looking good and we need to make some changes,” he says. “And that’s okay.”

The larger question is whether Stuckey’s members feel the same way. Last summer, the union rejected a contract from the City Council, which several news reports attributed to pay issues. But according to one SPOG member, speaking on the condition of anonymity, “Most people seem to like and respect [Stuckey].” If true, that could bode well for Stuckey fostering support for reform.

With all this in mind, Smith says he was surprised to hear Robart’s comments about showing liability.

The union representing police leadership, SPMA, recently filed an unfair labor practice complaint with the court, arguing that the city had already violated its obligation to bargain in good faith. But according to SPMA president Captain Mike Edwards, that was not about blocking reforms, which he said SPMA supports, but about an impasse with the city goes back to 2011.

“We’ve been at this since 2011,” he said. “We’re still nowhere. Five years is an awfully long time to be in this process and for it to not be resolved.”

In his response, however, Holmes further encouraged Robart to address the process of collective bargaining as it relates to the consent decree. Edwards sees this as another way for the city to avoid coming to the bargaining table.

If Robart does decide to pursue liability against the police unions, it will certainly be met with an appeal, and the reform process will slow down by a factor of months to years. If that’s the avenue Robart chooses, then in theory the DOJ should be the ones supporting it, while the City of Seattle should be defending against it.

But Trump’s pick for Attorney General, Jeff Sessions, is about the last person in the world to want to prove the Seattle Police Department and its unions are actually unconstitutional. Even with a motivated plaintiff, it would require, as one person said, “staying up really late and getting up really early,” to make that case: the DOJ’s initial investigation is six years old and the independent monitor has recently been publishing glowing reports about the improved quality of the department.

What’s left would be a conversation between Robart and the City of Seattle. Holmes said in that scenario, “It would be at best unseemly to say, ‘Please enter findings of liability against my city.’”

For Daugaard, imperfect as it may be, she wants to see the city bargain the accountability recommendations currently before the court. “Cramming someone’s tail down their throat is not the best way to sustain long-term support for what, in the end, must be an engaged process. If we can do this in a way that respects and honors police employees as partners, it’s better. … In the end, formal accountability structures are a small part of how things change and in the end they may be irrelevant. Because if people want to change and they give their energy and creativity to change then you don’t have to make them. Then you’ve got the whole organization working for you.”

Robart will convene a status conference on January 4, according to Holmes, when this tricky union question will be addressed. In a statement, Murray said, “Despite what some may claim, we will continue to meet our collective bargaining obligations, but efforts to extract financial and other benefits in exchange for Constitutional policing will not be successful,” picking up on Robart’s interpretation that the contract rejection had to do with money. 

“As we complete collective bargaining negotiations,” Murray continued, “I will not seek or accept an endorsement or political contributions from the Seattle Police Officer’s Guild.”

Whether he meant to or not, in declaring Black Lives Matter, Judge Robart took a side. The fiercest critics of police applauded him, while some pro-police voices attacked him. A “Blue Lives Matter” website proclaimed, “Federal Judge Accuses Police Union Of Killing Black People, Proclaims ‘Black Lives Matter.’”

But when activist types applaud a former contract lawyer and Bush-appointed judge, and a social justice hero like Daugaard defends the rights of a union that once claimed Obama was waging a “war on police,” it’s clear there’s not much black or white when it comes to Seattle’s consent decrees.

“What’s missing in this story line is the smoking gun,” says Daugaard, “where any piece of the fact that we don’t have a contract is attributable to union opposition to police accountability.”

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