City of Seattle v. Seattle Police Officers’ Guild

• Decision Date: 05 April 2021
• Docket Number: No. 80467-7-I,80467-7-I
• Citation: 484 P.3d 485,17 Wash.App.2d 21
• Court: Washington Court of Appeals
• Parties: CITY OF SEATTLE, SEATTLE POLICE DEPARTMENT, Respondent, v. SEATTLE POLICE OFFICERS’ GUILD, Appellant, and Arbitrator Jane Wilkinson and Adley Shepherd, Additional Parties.

17 Wash.App.2d 21

484 P.3d 485

CITY OF SEATTLE, SEATTLE POLICE DEPARTMENT, Respondent,

v.SEATTLE POLICE OFFICERS’ GUILD, Appellant,andArbitrator Jane Wilkinson and Adley Shepherd, Additional Parties.

No. 80467-7-I

Court of Appeals of Washington, Division 1.

FILED April 5, 2021

Hillary H. McClure, Alyssa Anne Melter, Vick, Julius, McClure, P.S., 5506 6th Ave. S Ste. 201a, Seattle, WA, 98108-2553, for Appellant.

Sarah Eve Tilstra, Paul Andrew Olsen, Seattle City Attorney's Office, 701 5th Ave. Ste. 2050, Seattle, WA, 98104-7095, for Respondent.

PUBLISHED OPINION

Coburn, J. ¶ 1 This appeal arises from an arbitration panel's decision to reinstate former Seattle Police Department (SPD) officer Adley Shepherd, who was terminated by the City of Seattle for violating SPD's use-of-force policies. The panel, consisting of a three-member disciplinary review board (DRB), concluded that Shepherd violated SPD's policy restricting the use of force on handcuffed subjects when he punched a handcuffed woman in the face hard enough to cause an orbital fracture

despite having had time to consider and execute other alternatives. The DRB also found that the policy Shepherd violated was clear and specific even though it was recently revised and that Shepherd had been adequately trained on the basics of the prior policy, which was carried forward into the new policy and required officers to use only what force was reasonable, necessary, and proportional. And, the DRB acknowledged that the penalty should send a clear message that alternatives to the use of force on a handcuffed person should be utilized when circumstances permit.

¶ 2 Nevertheless, the DRB reinstated Shepherd with a 15-day suspension and duty modifications, finding that the seriousness of Shepherd's offense was mitigated by the fact that Shepherd used force "perhaps reflexively" after the woman kicked him two seconds earlier causing "stinging pain" and that Shepherd's "patience was being tried." The DRB also observed that Shepherd was insistent he did nothing wrong, and several of his co-workers agreed with him.

¶ 3 The DRB'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 DRB'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. Thus, the superior court did not err when it vacated the DRB's decision reinstating Shepherd. We affirm.

BACKGROUND

The Underlying Incident; Shepherd's Termination

¶ 4 "Courts do not review an arbitrator's factual determinations." Int'l Union of Operating Eng'rs, Local 286 v. Port of Seattle, 176 Wash.2d 712, 716 n.1, 295 P.3d 736 (2013). Accordingly, the following summary of the underlying incident is drawn from the DRB's written opinion.¹

¶ 5 On June 22, 2014, Evelyn Shelby called 9-1-1 to report a potential domestic violence incident at her home. The call concerned alleged threats against Shelby's son, Robert Shelby, made by Miyekko "Coco" Durden-Bosley, with whom Robert shared a daughter.²

¶ 6 Officer Adley Shepherd arrived at the Shelby residence at 2:15 a.m. and was later joined by Officers Mike Griffin and Rory Smith. When Shepherd arrived, he encountered Robert on the sidewalk outside the Shelby residence and tried to interview him. Robert was angry that Evelyn had called the police. Shepherd asked Robert whether threats had been made, and Robert responded, " ‘I hope not. I don't know what she'd do. I don't know what the fuck she's going to do.’ " But, Robert thought his mother was safe.

¶ 7 Shepherd next went inside to speak with Evelyn while Griffin and Smith remained outside. Evelyn reported that Robert had told her that Durden-Bosley had threatened to come over and fight Robert. She indicated she was frightened and that there was a prior history of domestic violence between Durden-Bosley and Robert.

¶ 8 While Shepherd was speaking with Evelyn, an intoxicated Durden-Bosley (who apparently lived within walking distance of the Shelby home) arrived on foot. She walked past Robert, who tried to avoid her. Griffin asked her questions, but she refused to answer.

¶ 9 Shepherd went outside and asked Durden-Bosley questions. While doing so, Shepherd remarked on Durden-Bosley's obvious inebriation, and Durden-Bosley became agitated and verbally confrontational. Shepherd touched Durden-Bosley's right elbow to steer her toward his patrol car and away from Robert. Durden-Bosley pulled away, objecting to being touched, and denied threatening anyone. Her agitation grew and Robert told her to answer the questions. After Shepherd told Durden-Bosley that she had frightened Evelyn, Robert interjected, " ‘Nobody fucking threatened me, bro.’ " Shortly after, Durden-Bosley shouted at Evelyn, " ‘Ms. Shelby, why are you scared?’ " This drew Robert's ire, and he said to Durden-Bosley, " ‘Don't fucking ___ at my mom like that, bro. You already called her a fucking bitch, dawg.’ " He then told her to " ‘just handle shit cordially for once, man.’ " At the same time, Robert became antagonistic toward his mother for calling the police.

¶ 10 During these interchanges, Shepherd told the hyper-agitated Durden-Bosley at least three times that she was " ‘out of control.’ " He also tried to persuade Robert to stop yelling. While Shepherd did so, Durden-Bosley interjected with personally insulting remarks to or about Shepherd. Finally, Shepherd exclaimed, " ‘My patience is done. It's done. It's, it's over. So, somebody's going to go to jail. Who's it going to be?’ " Durden-Bosley responded by exclaiming that no one touched anyone, but Shepherd told her she had threatened someone. After one more interchange, Shepherd told Durden-Bosley she was under arrest. With Griffin's assistance, Shepherd put Durden-Bosley into handcuffs and they escorted her toward the patrol car. Robert remained at an appropriate distance but interjected himself to strongly object to Durden-Bosley's arrest. For the next "minute or probably less," Durden-Bosley vehemently, vociferously, and repeatedly denied making a threat. She was generally uncooperative and resisted getting into the patrol car.

¶ 11 Shepherd was having issues controlling Durden-Bosley and, realizing he was slightly off balance, paused and stepped back momentarily. He noted that Griffin had opened the front passenger door, and he tried to guide Durden-Bosley into the car through the rear door. Shepherd thought Griffin was moving to the rear door on the other side of the car to assist, but Griffin stopped at the rear of the car. Shepherd had his hand on the top of Durden-Bosley's head and pushed her head down to get her into the patrol car. Durden-Bosley then spun around, fell or sat backward onto her back on the seat, brought up her right leg, and kicked Shepherd in the face with her Doc Marten brand boot, yelling, " ‘Fuckin bitch!’ " Durden-Bosley kicked Shepherd hard enough for him to feel pain and exclaim, " ‘she kicked me.’ " Durden-Bosley then moved to a sitting position and placed her right foot on or near the ground outside of the patrol car. It is unclear where her left leg and foot were at this point.

¶ 12 After being kicked, Shepherd felt a little off balance and stepped back a bit. An in-car video shows that Shepherd's head, right arm and fist then entered the vehicle, with his arm delivering a blow that landed on Durden-Bosley's right eye. Approximately two seconds elapsed between the time that Durden-Bosley kicked Shepherd and the time that his blow landed on Durden-Bosley's eye.

¶ 13 Both Shepherd and Durden-Bosley were transported to Harborview for treatment. Durden-Bosley suffered a serious, but not permanent, injury to her right eye. The medical report described the injury as a " ‘very small, minimally displaced orbital floor fracture

(right) along the infraorbital canal and similarly minimally displaced medial wall fracture right eye.’ " Meanwhile, Shepherd was diagnosed with "moderate, acute Temporomandibular Disorder (TMD) due to trauma." Shepherd called in sick the next day but returned to work the day after. Following investigations by multiple agencies and two Loudermill ³

hearings, then Seattle Chief of Police Kathleen O'Toole decided to terminate Shepherd.

SPOG Challenge; Arbitration

¶ 14 In November 2016, Shepherd's union, the Seattle Police Officers’ Guild (SPOG), requested the DRB be convened so that Shepherd could challenge his termination in accordance with the collective bargaining agreement (CBA) between SPOG and the City. The DRB, comprised of one representative for SPOG, one representative for the City, and an independent arbitrator (the neutral), held a five-day hearing in June 2018. The sole issue before the DRB, as stipulated by the parties, was "[w]hether the Chief's disciplinary decision was for just cause and in compliance with this Agreement and, if not, what the remedy should be?" Under the CBA, the DRB's decision would be "final and binding, and additional appeals ... shall be foreclosed."

¶ 15 The DRB issued its written opinion and award on November 19, 2018.⁴ It observed, with regard to just cause, that "the principle of just cause requires the City to prove that Shepherd violated its use of force rules, that the City respected labor principles of due process, which include a full and fair investigation, and that discharge was the appropriate penalty for the offense(s) proven." The DRB also observed that "[n]o material issue exists here regarding the thoroughness and fairness of the City's pre-discharge investigation." Accordingly, the only two questions before the...