City Of Seattle, Et Ano. v. Seattle Police Officers' Guild

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CITY OF SEATTLE,
SEATTLE POLICE DEPARTMENT, No. 80467-7-I
Respondent, DIVISION ONE
v. PUBLISHED OPINION
SEATTLE POLICE OFFICERS’ GUILD,
Appellant,
and
ARBITRATOR JANE WILKINSON and
ADLEY SHEPHERD,
Additional Parties.
COBURN, J. — 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
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 80467-7-I/2
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.
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.
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.
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BACKGROUND
The Underlying Incident; Shepherd’s Termination
“Courts do not review an arbitrator’s factual determinations.” Int’l Union of
Operating Eng’rs, Local 286 v. Port of Seattle, 176 Wn.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
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
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.
1 The DRB’s opinion does not have a dedicated “findings of fact” section.
Accordingly, our summary relies on a section of the DRB’s opinion in which it set
forth “the undisputed sequence of events” and a later section in which the DRB
set forth “certain facts that comprise the context of the incident at issue.” Our
summary excludes, however, any hearing testimony recounted in those sections
because it is unclear whether the DRB adopted that testimony as its factual
findings. See State v. Coleman, 6 Wn. App. 2d 507, 516 n.40, 431 P.3d 514(2018) (“A finding that a particular witness testified, ‘The stop light was red’ is not
the same as a finding of fact that the stop light was red.”).
2 Because Evelyn Shelby and her son share a last name, we refer to them
by their first names for clarity.
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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.
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.
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.
During these interchanges, Shepherd told the hyper-agitated Durden-
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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.
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
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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.
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.
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
In November 2016, Shepherd’s union, the Seattle Police Officers’ Guild
(SPOG), requested the DRB be convened so that Shepherd could challenge his
3Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545-46, 105 S. Ct.
1487, 84 L. Ed. 2d 494 (1985) (holding that a public employee threatened with
termination is entitled to a pre-termination hearing as “an initial check against
mistaken decisions”).
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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.”
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 DRB were “whether Officer Shepherd violated the City’s use
of force rules and if so, whether discharge was the appropriate remedy.”
The DRB concluded that Shepherd had violated Section 8.100(2) of the
4 The DRB’s opinion appears to have been authored by the neutral, with
the SPOG representative and the City representative each concurring in part and
dissenting in part. The SPOG representative and the City representative did not
specify the individual sections of the opinion from which they respectively
dissented. But neither party claims that any section of the opinion received
support from less than a majority of the DRB. Accordingly, we attribute all
sections of the opinion to the DRB, including those sections where the context
indicates the neutral was the “tie breaker.”
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No. 80467-7-I/8
City’s use-of-force policy, which prohibits the use of physical force “[o]n
handcuffed or otherwise restrained subjects except in exceptional circumstances
when the subject’s actions must be immediately stopped to prevent injury,
escape, or destruction of property.” The DRB observed that the two seconds that
elapsed between the time Durden-Bosley kicked Shepherd and the time
Shepherd landed a blow to Durden-Bosley’s eye “gave Officer Shepherd a little
time to reflect, though not a lot of time.” It explained that in those two seconds,
Shepherd could have considered and executed alternatives to the use of force:
Officer Shepherd could have stepped back sufficiently to be able to
maneuver the car door to partially shut on Ms. Durden-Bosley. He
wouldn’t have had to shut it all the way (since her legs were in the
way) or use enough force to cause her injury. But he could have
used it as a shield to protect himself and keep her from getting out.
At this point, if she were still noncompliant, he could have asked
another officer to pull her in from the other side or otherwise assist
him. The [DRB] majority finds that Officer Shepherd had sufficient
time to consider and execute this maneuver. This [DRB] majority
also believes that retreating out of kicking distance from Ms.
Durden-Bosley was another option. The majority agrees with the
City that she wasn’t much of a flight risk since she was handcuffed,
intoxicated, and there were three officers and apparently a police
dog at the scene. If Officer Shepherd had put a barrier or distance
between himself and Ms. Durden-Bosley, she could not have
assaulted him again. He could have engaged the other officers at
the scene to work on subduing her without using undue force.
In concluding that Shepherd violated SPD policy, the DRB acknowledged
that SPD had recently revised its use-of-force policy pursuant to a settlement
agreement between the City and the United States (Consent Decree), which the
City entered into after the U.S. Department of Justice (DOJ) filed suit against the
City alleging a pattern and practice of unlawful use of force. Nevertheless, the
DRB rejected SPOG’s contention that Shepherd’s training “was insufficient to
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No. 80467-7-I/9
prepare [him] for what the City expected of him less than six months after the
new rules were implemented.” Specifically, the DRB noted “that the prior use of
force policy, like the revised policy required officers to use only what force is
reasonable, necessary and proportional” and that “Shepherd had been
adequately trained on the basics of the prior policy, which was carried forward
into the current policy.” The DRB also explained that, despite some “unclear or
conflicting signals the City gave its officers,” particularly through training, “the
message was clear from the City that alternatives to the use of physical force on
a handcuffed person should be utilized when circumstances permit.” The DRB
observed that “[t]he written rule on use of force on handcuffed prisoners is clear
[and] creates a targeted message regarding what force is permitted.” It thus
concluded that “the clarity and specificity of the policy regarding handcuffed
subjects overrides any deficiencies in training” and was “unable to find that
Officer Shepherd’s conduct should be excused because his training was
inadequate or conflicting.”
The DRB turned next to whether termination was the appropriate penalty
for Shepherd’s misconduct and concluded it was not. The DRB wrote that “under
CBAs, a neutral decision-maker may overturn an ultimate penalty that is unduly
severe” and that “[t]he punishment must be proportional to the offense, must not
be wholly out of line with the penalty meted in similar circumstances, must
consider the offender’s employment record, and must to the extent appropriate,
reflect principles of progressive discipline.”
Applying these standards, the DRB first discussed proportionality and
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No. 80467-7-I/10
observed that although Shepherd had time to assess the situation and consider
his options, “that amount of time was measurable in seconds, which isn’t much.”
The DRB also considered, as mitigating circumstances, that Shepherd (1) “had
been kicked in the face by a booted woman and felt stinging pain,” (2) was not
receiving any help from other officers to put Durden-Bosley in the patrol car,
(3) used force “perhaps reflexively” and stopped once Durden-Bosley quit
resisting, and (4) had unsuccessfully used de-escalation tactics, and “[h]is
patience was being tried.” According to the DRB, “[t]hese circumstances tend to
mitigate somewhat the seriousness of Officer Shepherd’s offense.” The DRB
also noted that although it concluded Shepherd violated department policy, “the
question was a close one.”
The DRB next discussed what it described as “disturbing” testimony
regarding the training that Shepherd received. Specifically, “[SPOG] presented
undisputed testimony from both Shepherd and [a] training officer . . . that an
officer who is physically assaulted is trained to respond with sufficient force to
subdue the subject, which is exactly what Officer Shepherd did here.” According
to the DRB, the training officer had testified,
“I say the same thing to every class: ‘If someone hits you, what are
you supposed to do to protect yourself? If they hit you, what do you
do?’ The whole class will say, ‘You hit them back.’ Then I say to
the class, ‘How hard do we hit them?’ The whole class will say, ‘As
hard as you can.’ After I say that, I say, ‘What do we do next?
What do we do after we stop the threat?’ I’m prompting them.
They’ll say, ‘We modulate our force. We modulate our force to
control it.’ ”
The DRB observed that when the training officer was asked whether he was ever
told to stop this kind of training, he responded, “ ‘Never.’ ” It also observed that
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No. 80467-7-I/11
the City “did not present evidence that cast doubt on the veracity of [the training
officer]’s testimony that Officer Shepherd was trained to respond to an assault
with the immediate use of measured force.” The DRB acknowledged the City
representative’s observation that the training officer’s testimony should apply
“only to situations where the officer does not have two seconds to pursue other
options.” The DRB also wrote that it “would not excuse Officer Shepherd’s blow
to Ms. Durden-Bosley on the basis of training concerns.” Nevertheless, the DRB
found the training testimony to be a mitigating consideration.
The DRB next considered the penalty meted other officers. It noted that
“the record contains several instances where officers received discipline, but
were not discharged, for using unreasonable non-lethal force on a suspect” and
that there were “no instances of record where the officer was discharged.” The
DRB noted that there were no prior or subsequent disciplinary situations exactly
comparable to Shepherd’s.
The DRB also addressed Shepherd’s employment history. It noted that
O’Toole “gave great weight to the fact that Shepherd received a 10-day
suspension as the result of a policy violation in 2009.” But the DRB considered
the 2009 incident and Shepherd’s interaction with Durden-Bosley “really . . . quite
different matters.” 5 It also observed that “Officer Shepherd readily admitted he
5 The DRB described the 2009 incident as follows: “In that case, Officer
Shepherd had responded to a domestic violence call from a man who was
experiencing conflict with his male housemate. However, Officer Shepherd was
not sure which of the two men was primarily responsible for the altercation
between them, since they’d both participated in a physical altercation and
appeared injured, although the caller appeared slightly more injured. SPD rules
require[ ] officers on domestic violence assault calls to arrest the person primarily
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No. 80467-7-I/12
had acted wrongly and was remorseful” over the 2009 incident, and Shepherd
“has never been disciplined for anything except the 2009 . . . matter.”
The DRB also noted that O’Toole “was very disturbed by Officer
Shepherd’s unwillingness to acknowledge that he made a mistake when he
struck Ms. Durden-Bosley.” The DRB considered O’Toole’s view “troubling”
because “Officer Shepherd was quite adamant he had done nothing wrong . . .
[and] had several co-workers who agreed with him.” The DRB explained that
“[a]n employee arguably should not be unduly penalized for an honest, sincere
and even reasonable, but mistaken belief that he or she had done nothing
wrong.” The DRB believed that “an honest, but mistaken belief that he was
following SPD policy does not mean that Officer Shepherd is incapable of
changing his behavior”:
There is no reason to believe that Officer Shepherd does not
respect SPD policy, and it is quite possible, if not probable, that a
lengthy suspension will tell him that he always has to think about
and utilize options that involve the least amount of appropriate force
under the circumstances. He also should be motivated by the fact
that a subsequent offense involving the improper use of force could
result in discharge.
The DRB additionally considered, as mitigating considerations, the length of
Shepherd’s employment with the City, “his record of performance as a good cop,”
responsible. Officer Shepherd arrested the housemate and took him to the
precinct station. Nevertheless, he was concerned that he might have picked the
wrong person. The housemate who called 911 did not want his roommate
arrested and refused to give a statement or cooperate. Further, the arrestee was
scheduled for surgery at 6:00 a.m. the next morning on an injured hand. After
conferring with his sergeant and getting the sergeant’s sign-off, Officer Shepherd
released the arrestee. Tragically, that person went home and murdered his
housemate, the one who had made the 911 call.”
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No. 80467-7-I/13
and a sergeant’s testimony as to Shepherd’s value to the City.
Finally, the DRB addressed an assertion by SPOG that Shepherd’s
termination was politically motivated. It noted that “perhaps discharging Officer
Shepherd was intended to send a message . . . that [SPD] was taking its use of
force policies seriously.” But the DRB ultimately did not find that Shepherd’s
termination was improperly political.
Taking all of these considerations together, the DRB concluded that “the
penalty of discharge for Officer Shepherd’s offense, after taking into account the
various mitigating considerations, was excessive [and] should be reduced to a
significant suspension.” The DRB acknowledged that its penalty should “send a
message to the SPD’s officers and to the public that the City takes its policies on
the use of force and its implementation of modern policing practices very
seriously.” The DRB “underscore[d]” that its decision was “intended to send that
message.” Observing that a 30-day suspension was the maximum permitted
under the CBA, 6 the DRB determined that a “15-day, i.e., three working-week
suspension (coupled with Officer Shepherd’s removal from patrol and training
duties . . . ), is sufficient to send that message.” Accordingly, the DRB ordered
Shepherd be reinstated with full back pay, less pay reflecting a 15-day unpaid
suspension, and less interim earnings. It also gave the City the option to remove
Shepherd from patrol and from conducting training on the use of force or
defensive tactics.
6 On appeal, SPOG cites Seattle Municipal Code 4.08.100 as the source
of this 30-day maximum.
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Proceedings in Superior Court
The City applied to the superior court for a writ directing the DRB to
transmit its records and files to the court to determine whether to vacate the
DRB’s decision. The superior court granted the writ, and SPOG counterclaimed
for breach of the CBA.
Later, the City successfully moved the superior court to vacate the DRB’s
decision, arguing that the DRB’s reinstatement of Shepherd violated the “public
policy against excessive use of force in policing.” In its written ruling granting the
City’s motion to vacate, the court explained that there existed an explicit,
dominant, and well-defined public policy against the excessive use of force in
policing. In doing so, the court looked to the Fourth Amendment to the U.S.
Constitution, 42 U.S.C. § 1983, and 34 U.S.C. § 12601, which makes it “unlawful
for any governmental authority . . . to engage in a pattern or practice of conduct
by law enforcement officers . . . that deprives persons of rights, privileges, or
immunities secured or protected by the Constitution or laws of the United States.”
The superior court also observed that provisions of the Consent Decree
addressing the use of force against handcuffed individuals “support finding that
the policy against the use of excessive force in policing is explicit, dominant and
well-defined.”
The superior court then concluded that the DRB’s award was so lenient
that it violated the public policy against excessive use of force in policing. The
court acknowledged the DRB’s finding that there was “no reason to believe that
Officer Shepherd does not respect SPD policy,” but it expressed concern “about
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No. 80467-7-I/15
the impact a 15-day unpaid suspension with accompanying patrol and training
responsibility losses will have in maintaining [SPD] compliance with the explicit,
dominant and well-founded [sic] public policy against the use of excessive force
in policing.” The court also expressed concern about the mitigating factors
considered by the DRB, specifically, “that Officer Shepherd’s ‘patience was being
tried’ and that he, ‘feeling stinging pain’ ‘perhaps, reflexively, used force.’
SPOG appeals.
STANDARD OF REVIEW
We review de novo a lower court’s decision to vacate an arbitration award
on public policy grounds. Kitsap County Deputy Sheriff’s Guild v. Kitsap County,
167 Wn.2d 428, 434, 219 P.3d 675 (2009).
DISCUSSION
Whether the DRB’s Decision Violated Public Policy
SPOG contends that the superior court erred by concluding that the DRB’s
decision violated public policy. We disagree.
“Courts will review an arbitration decision only in certain limited
circumstances, such as when an arbitrator has exceeded his or her legal
authority.” Port of Seattle, 176 Wn.2d at 720. “To do otherwise would call into
question the finality of arbitration decisions and undermine alternative dispute
resolution.” Id. Our Supreme Court has observed that “ ‘[w]hen parties
voluntarily submit to binding arbitration, they generally believe that they are
trading their right to appeal an arbitration award for a relatively speedy and
inexpensive resolution to their dispute.’ ” Id. at 720-21 (quoting Clark County
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No. 80467-7-I/16
Pub. Util. Dist. No. 1 v. Int’l Bhd. of Elec. Workers, Local 125, 150 Wn.2d 237,
247, 76 P.3d 248 (2003)). “Thus, a more extensive review of arbitration
decisions ‘would weaken the value of bargained for, binding arbitration and could
damage the freedom of contract.’ ” Id. at 721 (quoting Kitsap County, 167 Wn.2d
at 435).
“However, like any contract, an arbitration decision arising out of a
collective bargaining agreement can be vacated if it violates public policy.” Id.Specifically, “[t]he court treats the arbitration decision as if it were part of the
contract, and such a decision will be vacated if it violates an “ ‘explicit, well
defined, and dominant public policy, not simply general considerations of
supposed public interests.’ ” Id. (internal quotation marks omitted) (quoting
Kitsap County, 167 Wn.2d at 435). Washington courts have looked to federal
decisions as persuasive in this context. See Kitsap County, 167 Wn.2d at 435.
Here, the parties disagree as to both (1) whether the DRB’s decision
implicates an explicit, dominant, and well-defined public policy and (2) if it does,
whether the DRB’s decision violates that policy. We address these issues in
turn.
A. Existence of a Relevant Public Policy
No Washington appellate court has addressed whether the laws that
prohibit police use of excessive force set forth an explicit, well-defined, and
dominant public policy. “Such a public policy . . . is to be ascertained ‘by
reference to the laws and legal precedents and not from general considerations
of supposed public interests.’ ” W.R. Grace & Co. v. Local Union 759, Int'l Union
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No. 80467-7-I/17
of the United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757,
766, 103 S. Ct. 2177, 76 L. Ed. 2d 298 (1983) (quoting Muschany v. United
States, 324 U.S. 49, 66, 65 S. Ct. 442, 89 L. Ed. 744 (1945)).
SPOG argues that, contrary to the superior court’s determination, there
exists no explicit, dominant, and well-defined public policy “that could be violated
by an arbitration award reinstating an officer who violated a departmental use of
force policy.” The City, relying on the Fourth Amendment, 42 U.S.C. § 1983, 34
U.S.C. § 12601, and the Consent Decree, argues that there is a public policy
against the use of excessive force in policing that is sufficiently explicit, dominant,
and well defined to be implicated by the DRB’s decision. We agree with the City.
The right to be free from excessive force—which finds its source in the Bill
of Rights and is enforceable against states via the Fourteenth Amendment—is
explicit. Indeed, the United States Supreme Court explicitly held in Graham v.
Connor
that all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory stop,
or other “seizure” of a free citizen should be analyzed under the
Fourth Amendment and its “reasonableness” standard, rather than
under a “substantive due process” approach. Because the Fourth
Amendment provides an explicit textual source of constitutional
protection against this sort of physically intrusive governmental
conduct, that Amendment, not the more generalized notion of
“substantive due process,” must be the guide for analyzing these
claims.
490 U.S. 386, 395-96, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989) (emphasis
added and omitted) (setting forth the general framework for “[d]etermining
whether the force used to effect a particular seizure is ‘reasonable’ under the
Fourth Amendment”); see also Shekleton v. Eichenberger, 677 F.3d 361, 367
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No. 80467-7-I/18
(8th Cir. 2012) (“[T]he right to be free from excessive force dates back to the
adoption of the Bill of Rights of our Constitution, as it is ‘a clearly established
right under the Fourth Amendment’s prohibition against unreasonable seizures of
the person. . . .’ ” (internal quotation marks omitted) (quoting McGruder v.
Heagwood, 197 F.3d 918, 919 (8th Cir. 1999))); Mapp v. Ohio, 367 U.S. 643,
650, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961) (recognizing that Fourth
Amendment protections are enforceable against the states through the
Fourteenth Amendment’s due process clause); Staats v. Brown, 139 Wn.2d 757,
774, 991 P.2d 615 (2000) (“Use of excessive force to accomplish an arrest, even
where supported by probable cause and/or a warrant, clearly violates the Fourth
Amendment.”).
The policy is also dominant. Not only is the right to be free from excessive
force enshrined in the U.S. Constitution, which Washington’s constitution
recognizes as “the supreme law of the land,” Const. art. 1, § 2, Congress has
taken affirmative steps to ensure the right can be vindicated. For example,
42 U.S.C. § 1983, which provides a right of action to individuals whose
constitutional rights were violated, “was enacted to create ‘a broad remedy for
violations of federally protected civil rights.’ ” United States v. County of
Maricopa, 889 F.3d 648, 653 (9th Cir. 2018) (quoting Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 685, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)). And
Congress, through 34 U.S.C. § 12601 (formerly codified at 42 U.S.C. § 14141),
provided “a remedy for violations of federal civil rights, specifically for violations
that are systematically perpetrated by local police departments.” County of
18
No. 80467-7-I/19
Maricopa, 889 F.3d at 653. 7 That Congress enacted these remedial measures
shows that the policy against the use of excessive force in policing is a policy of
highest priority. See United States v. City of Columbus, No. CIV.A.2;99CV1097,
2000 WL 1133166 at *6 (S.D. Ohio Aug. 3, 2000) (“This Court has no doubt that,
in enacting [§ 12601], Congress intended to respond, by both remedial and
preventative measures, to a widespread pattern of violations of the Fourteenth
Amendment by police officials acting under color of state law.”). Thus, the policy
is dominant. See Port of Seattle, 176 Wn.2d at 722 (holding that because the
Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, is a public
policy of the highest priority, it is necessarily dominant).
Finally, the policy against the use of excessive force in policing is well
defined. In Port of Seattle, our Supreme Court concluded that the policy against
workplace discrimination was well defined because “antidiscrimination laws
create an affirmative duty for employers to prevent racial harassment . . . by
sufficiently disciplining those who engage in harassing behavior.” 176 Wn.2d at
722. Similarly, 34 U.S.C. § 12601 imposes an affirmative duty on municipal
employers to sufficiently discipline officers who violate use-of-force policies.
7 The parties do not discuss the legislative history of § 12601. But it is well
understood that its text was originally proposed in direct response to national
outcry over the Rodney King beating. See Eugene Kim, Vindicating Civil Rights
Under 42 U.S.C. § 14141: Guidance From Procedures in Complex Litigation, 29
HASTINGS CONST. L.Q. 767, 772-73 (2002); Marshall Miller, Police Brutality, 17
YALE L. & POL’Y REV. 149, 163 (1998). It is also well understood that § 12601
“was intended to ‘close [the] gap in the law’ created by the modern equitable
standing doctrine, which forecloses an individual from obtaining injunctive relief
against police misconduct absent a likelihood of future harm to that particular
plaintiff.” Kim, supra, at 769 (quoting United States v. City of Columbus, No.
CIV.A.2;99CV1097, 2000 WL 1133166 at *9 (S.D. Ohio Aug. 3, 2000)).
19
No. 80467-7-I/20
Specifically, § 12601 makes it “unlawful for any governmental authority, or
any agent thereof, or any person acting on behalf of a governmental authority, to
engage in a pattern or practice of conduct by law enforcement officers . . . that
deprives persons of rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States.” 34 U.S.C. § 12601(a). It is axiomatic
that, to comply with this legal duty to ensure that no pattern or practice exists, a
municipal employer must sufficiently discipline officers who engage in conduct
that could contribute to an unlawful pattern or practice.
The affirmative duty under § 12601 to impose sufficient discipline is further
confirmed by the Consent Decree. Under 34 U.S.C. § 12601(b), “Whenever the
Attorney General has reasonable cause to believe that a violation of [subsection
(a)] has occurred, the Attorney General, for or in the name of the United States,
may in a civil action obtain appropriate equitable and declaratory relief to
eliminate the pattern or practice.” The Attorney General filed such a civil action
against the City in July 2012 after the DOJ “released a report announcing that it
had found reasonable cause, under . . . 34 U.S.C. § 12601 . . . , to believe that
[SPD] had engaged in a pattern and practice of excessive force.” Order Finding
City of Seattle Partially out of Compliance with Consent Decree, United States v.
City of Seattle, No. C12-1282JLR, 2019 WL 2191871, at *1 (W.D. Wash. May 21,
2019) (Non-Compliance Order). DOJ specifically found that SPD engaged in an
unconstitutional pattern of “the use of excessive force on subjects who were
already restrained.”
The United States and the City settled the action via the Consent Decree,
20
No. 80467-7-I/21
which the U.S. District Court preliminary approved on September 21, 2012. Non-
Compliance Order, 2019 WL 2191871 at *1. The City “ ‘entered into [the
Consent Decree] with the goal of ensuring that the SPD’s policies, procedures,
training, and oversight are sufficient to prevent practices that the United States
allege[d] contributed to a pattern and practice of constitutional violations.’ ” Order
to Show Cause whether the Court Should Find the City has Failed to Maintain
Full and Effective Compliance with Consent Decree, United States v. City of
Seattle, No. C12-1282JLR, 2018 WL 6304761, at *1 (W.D. Wash. Dec. 3, 2018)
(Show Cause Order) (alterations and emphasis in original). In preliminarily
approving the Consent Decree, the U.S. District Court found that it “ ‘[wa]s
tailored to the alleged deficiencies identified by the United States’ and ‘[wa]s
consistent with and furthers the objectives of [§ 12601] because it embodies the
agreement of the City and commitment of [the SPD] to ensure that no pattern or
practice of unconstitutional police conduct exists.’ ” Id. at *1 (fourth alteration in
original; emphasis added). 8
Under the Consent Decree, the City agreed that SPD’s use-of-force
policies should be guided by a number of principles, including that “[o]fficers
normally should not use reportable force against handcuffed or otherwise
restrained subjects unless necessary or reasonable under the circumstances to
8 The quoted portions of the Show Cause Order quoted, in turn, from the
U.S. District Court’s findings of fact and conclusions of law, entered September
12, 2012, when the court preliminarily approved the Consent Decree. A copy of
the U.S. District Court’s findings and conclusions are available on the DOJ’s
website at
https://www.justice.gov/sites/default/files/crt/legacy/2014/10/10/spd_docket14_9-
21-12.pdf [https://perma.cc/T3Y2-5QC3].
21
No. 80467-7-I/22
stop an assault, escape, or as necessary to fulfill other legitimate law
enforcement objectives.” SPD revised its use-of-force policies, including the
policy on handcuffed suspects that Shepherd was later found to have violated,
consistent with these principles. According to the Consent Decree, and as later
confirmed by the DRB, “[t]he revised SPD policies continued to reflect the
constitutional use of force standard set out by the U.S. Supreme Court in
Graham v. Connor . . . and its progeny.” (Emphasis added.)
The Consent Decree did not mandate specific changes to the City’s
discipline and accountability structures. Nevertheless, according to the U.S.
District Court, the court was “responsible not only for ensuring that the City
complies with all specific terms and conditions of the Consent Decree, but also
that it does not do anything that—although not specifically mandated by the
Consent Decree—would undermine compliance with the document.” Id.
(emphasis added). And in that court’s view, “ensuring that appropriate oversight
and accountability mechanisms are in place is one of the cornerstones to
securing constitutional and effective policing in this City.” Id. To that end, the
U.S. District Court later concluded “that any provision that implicates officer
discipline related to use-of-force inherently implicates . . . the Consent Decree’s
purposes, and thus, must be consistent with them.” Non-Compliance Order,
2019 WL 2191871 at *3. 9
9 On May 21, 2019, the U.S. District Court held the City partially out of
compliance with the Consent Decree—in large part because the City had,
despite earlier acknowledging the inadequacy of its existing accountability
regime, maintained the same regime that had allowed for Shepherd’s
reinstatement. Non-Compliance Order, 2019 WL 2191871 at *3, 5-6.
22
No. 80467-7-I/23
In short, municipal employers have a legal duty under § 12601 not to
engage in patterns or practices of use of excessive force. That duty, by its
nature, requires municipal employers to ensure that no pattern or practice of
unconstitutional policing exists or will exist. As confirmed by the Consent
Decree, effective accountability mechanisms, including accountability
mechanisms that sufficiently discipline officers who violate the very policies
designed to ensure constitutional policing, are a cornerstone of that duty. Thus,
the public policy prohibiting police from using excessive force is well defined in
addition to being explicit and dominant. Cf. Kitsap County, 167 Wn.2d at 437(recognizing that an explicit, well-defined, and dominant public policy may stem
from federal statutes that impose an affirmative duty to prevent misconduct by
law enforcement officers); City of Boston v. Boston Police Patrolmen’s Ass’n, 477
Mass. 434, 443, 78 N.E.3d 66 (2017) (“It is inarguable that well-defined public
policy condemns excessive force by police officers.”).
SPOG disagrees and contends that no well-defined policy exists because
“there is no statute discussing the level of discipline required when a use of force
policy is violated, let alone a statute prohibiting reinstatement in cases of
excessive force.” SPOG relies in part on Kitsap County, where our Supreme
Court upheld an arbitration award reinstating a sheriff’s deputy who had been
terminated for 29 instances of misconduct, including untruthfulness. Kitsap
County, 167 Wn.2d at 431, 433. There, the Supreme Court rejected the County’s
argument that there existed an explicit, dominant, and well-defined public policy
prohibiting the deputy’s reinstatement. Id. at 437. In doing so, it observed that
23
No. 80467-7-I/24
“Washington has no . . . statute prohibiting persons found to be untruthful from
serving as officers or placing an affirmative duty on counties to prevent police
officers from ever being untruthful.” Id. (emphasis added).
Kitsap County is distinguishable. There, the court found no laws placing
an affirmative duty on the county, but in the instant case, the relevant laws and
legal precedents do place an affirmative duty on municipalities to prevent police
officers from engaging in conduct that could contribute to a pattern or practice of
unlawful behavior. Furthermore, our Supreme Court has rejected SPOG’s
argument that, for a public policy to be well defined, there must be a statute
discussing the level of discipline required for policy violations. See Port of
Seattle, 176 Wn.2d at 722-23.
Specifically, in Port of Seattle, our Supreme Court considered whether an
award reinstating an employee who had hung a noose at work violated public
policy. 176 Wn.2d at 720. The court held that WLAD expressed an explicit,
dominant, and well-defined public policy against workplace harassment and
discrimination. Id. at 723. In doing so, it rejected an argument from the
employee’s union that “the public policy expressed in WLAD is not explicit or well
defined because specific penalties are not enumerated.” Id. at 722. The court
explained, “The idea of a statute attempting to list all possible discriminatory acts
is fairly absurd in and of itself, but the idea of assigning specific disciplines
without taking into account the surrounding circumstances is particularly
inappropriate.” Id. at 723. It continued, “Such a list could not reasonably be
created, and thus requiring such a list would destroy the public policy exception.”
24
No. 80467-7-I/25
Id. The same holds true with regard to the excessive use of force. SPOG’s
argument fails.
SPOG next suggests that, to affirm the superior court, this court would
have to improperly “divine or create its own explicit public policy that might
apply.” SPOG then urges us to “refuse to divine a public policy that prohibits
reinstatement or imposes disciplinary requirements that conflict with the [DRB]’s
award.” SPOG relies in part on Eastern Associated Coal Corp. v. United Mine
Workers of America, Dist. 17, 531 U.S. 57, 121 S. Ct. 462, 148 L. Ed. 2d 354(2000). According to SPOG, the U.S. Supreme Court in Eastern Associated
“refused ‘to infer a public policy’ against reinstatement” where Congress had not
created one. But as discussed, the public policy against excessive use of force
in policing is rooted in the U.S. Constitution and defined by congressionally
enacted statutes—we need not divine or create it.
Furthermore, SPOG’s reliance on Eastern Associated is misplaced. The
question in that case was whether an arbitration award that reinstated James
Smith, a truck driver who twice tested positive for marijuana, violated public
policy. Eastern Associated Coal Corp., 531 U.S. at 60-61. Smith’s employer,
who had sought to discharge him, argued that there existed an explicit, dominant,
and well-defined policy “against reinstatement of workers who use drugs.” Id. at
63.
The U.S. Supreme Court disagreed. Id. at 67. In doing so, the Court took
specific note that, “[a]s a truck driver, Smith was subject to Department of
Transportation (DOT) regulations requiring random drug testing of workers
25
No. 80467-7-I/26
engaged in ‘safety-sensitive’ tasks.” Id. at 60 (quoting 49 C.F.R. §§ 382.301,
382.305 (1999)). It also noted that the field in which Smith worked was the
subject of a detailed regulatory regime consisting of the Omnibus Employee
Testing Act of 1991 (Act) and DOT’s implementing regulations. Id. at 63. The
Court stated, “[I]n a case like the one before us, where two political branches
have created a detailed regulatory regime in a specific field, courts should
approach with particular caution pleas to divine further public policy in that area.”
Id. (emphasis added).
In ultimately concluding that the regulatory regime did not express an
explicit, dominant, and well-defined policy against reinstatement of workers who
use drugs, the Court observed that “the Act’s remedial aims are complex” and
that the Act “says that ‘rehabilitation is a critical component of any testing
program.’ ” Id. at 64 (quoting Pub. L. 102-143 § 2(7)). Here, by contrast, SPOG
points to no similarly careful and detailed regulatory regime, much less one that
expressly prioritizes rehabilitation of officers who use excessive force.
Accordingly, Eastern Associated is distinguishable and not persuasive.
SPOG next contends that “[a] general public policy against excessive
force is not sufficiently explicit, well-defined, or dominant when weighed against
countervailing policies within the Fourth Amendment.” As evidence of these
countervailing policies, SPOG points to RCW 9A.16.020(1), a provision of
Washington’s criminal code providing that “[t]he use . . . [of] force upon or toward
the person of another is not unlawful . . . [w]henever necessarily used by a public
officer in the performance of a legal duty.” SPOG also points to the doctrine of
26
No. 80467-7-I/27
qualified immunity, which “ ‘shields federal and state officials from money
damages unless a plaintiff pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established at
the time of the challenged conduct.’ ” Olivier v. Baca, 913 F.3d 852, 860 (9th Cir.
2019) (internal quotation marks omitted) (quoting Ashcroft v. al-Kidd, 563 U.S.
731, 735, 131 S. Ct. 2074, 179 L. Ed. 2d 1149 (2011)).
SPOG’s contention fails for three reasons. First, the existence of qualified
immunity does not negate the existence of an explicit, dominant, and well-defined
policy against the excessive use of force: Whether an individual officer should be
held criminally or civilly liable for the use of force is an entirely different question
than whether there exists an explicit, dominant, and well-defined policy
condemning the use of excessive force in policing.
Second, SPOG’s focus on qualified immunity and liability under § 1983
ignores § 12601, which was enacted to provide relief that § 1983, as interpreted
by the courts, could not. City of Columbus, 2000 WL 1133166 at *7 (“[T]he grant
of authority to the Attorney General reflected in . . . [§ 12601] was drafted in light
of and was intended to remedy the inadequacies of 42 U.S.C. § 1983.”).
Third and finally, RCW 9A.16.020(1), by its terms, applies only to force
that is “necessarily used.” Thus, that statute is not in conflict with a policy against
the use of excessive force.
SPOG next argues that the policy against the use of excessive force in
policing is not well defined because Ҥ 12601 does not create an affirmative duty
that can be violated by a single arbitration award.” SPOG argues,
27
No. 80467-7-I/28
A municipality’s affirmative duty under § 12601 is to refrain
from engaging in a pattern or practice of conduct that violates
constitutional rights. Nothing in the statute or case law could lead
to the conclusion that an affirmative duty exists that could be
violated by a single disciplinary decision or even a single arbitration
award. Therefore, any affirmative duty or public policy is not
sufficiently “well-defined” for the public policy exception, because
no arbitration decision can violate that affirmative duty. Courts
would be left with insufficient guidance for determining when an
award would violate the public policy.
(Emphasis added.)
But SPOG’s argument fails to acknowledge that a pattern or practice
results when individual instances of misconduct are repeated. Cf. Equal Emp’t
Opportunity Comm’n v. Bass Pro Outdoor World, L.L.C., 826 F.3d 791, 797 (5th
Cir. 2016) (explaining, in the employment discrimination context, that plaintiff may
show a pattern or practice by showing that denial of rights was repeated, routine,
or of a generalized nature). Thus, as discussed, a duty to refrain from engaging
in a pattern or practice necessarily includes a duty to take affirmative steps to
prevent the individual instances of misconduct that contribute to an unlawful
pattern or practice. Each arbitration award arising out of a disciplinary decision
undertaken to carry out this duty will by its nature be a single award. Thus, we
find unpersuasive SPOG’s argument that no such award could ever violate public
policy. Additionally, SPOG’s argument does not acknowledge the Consent
Decree, which confirms the City’s affirmative duty under § 12601. Cf. United
States v. Puerto Rico, 460 F. Supp. 3d 159, 160 (D.P.R. 2020) (noting that the
“raison dêtre” of a consent decree entered pursuant to § 12601 was “to
guarantee constitutionally acceptable police practices within the Commonwealth,
the ultimate beneficiary being the citizenry itself”). SPOG’s argument fails.
28
No. 80467-7-I/29
Finally, SPOG argues that because the Consent Decree is not a law or
legal precedent, the court may not look to it as evidence of a public policy, citing
W.R. Grace and Stead Motors of Walnut Creek v. Automotive Machinists Lodge
No. 1173, International Association of Machinists and Aerospace Workers, 886
F.2d 1200 (9th Cir. 1989) (plurality opinion). But we do not look to the Consent
Decree as the source of public policy—rather, the Consent Decree confirms the
explicit, dominant, and well-defined policy set forth by the Fourth Amendment,
§ 1983, and § 12601. Cf. Frew ex. rel. Frew v. Hawkins, 540 U.S. 431, 437, 124
S. Ct. 899, 157 L. Ed. 2d 855 (2004) (observing that consent decrees entered in
federal court “must further the objectives of the law upon which the complaint
was based.”).
Furthermore, SPOG’s reliance on W.R. Grace and Stead Motors is
misplaced. In Stead Motors, the plurality expressly left open the possibility that
“specific action by a regulatory or other administrative agency might provide
some form of ad hoc ‘legal precedent’ . . . sufficient to justify invalidation of an
award on public policy grounds.” 886 F.2d at 1215. The plurality acknowledged,
without deciding, that action by a federal agency—such as, here, the DOJ—
“might reasonably be construed as an ‘explicit, well defined and dominant’
expression of a public policy as applied to the facts of the case.” Id. at 1215 &
n.15. And in W.R. Grace, the Court did not, as SPOG claims, “reject[ ] reliance
on a consent decree for a public policy.” The question in W.R. Grace was
whether an arbitrator’s award violated the public policy requiring obedience to
court orders, such as an order mandating compliance with a conciliation
29
No. 80467-7-I/30
agreement—not whether the conciliation agreement itself was a source of public
policy. 461 U.S. at 766.
Additionally, Stead Motors and W.R. Grace are distinguishable from the
instant case because neither case analyzed whether the prohibition on the use of
excessive force is an explicit, well-defined, and dominant public policy. They
also are distinguishable because both cases involved private sector employees.
Although the City does not ask us to draw a distinction between public and
private employment, at least one state supreme court has observed that the
distinction matters, albeit in the context of deciding whether a public policy was
violated (and not whether it existed in the first place):
Nationally, in the vast majority of cases in which courts have
vacated for public policy reasons arbitration awards reinstating
terminated employees, the grievant has been a public sector
employee, primarily working in fields such as law enforcement,
education, transportation, and health care, in other words, fields
that cater to vulnerable populations or help ensure the public
safety. This reflects the fact that the threat to public policy involved
in reinstating a terminated employee is magnified when the
offending employee provides an essential public service, and
especially when he is employed by, represents, and, ultimately, is
answerable to the people. In most private sector disputes, by
contrast, the law presumes that the parties have secured their own
interests through their contractual arrangements, . . . and that the
customers or clients whom they serve may vote with their feet and
protect their own interests should they deem the conduct of an
employee to be unacceptable.
Burr Road Operating Co. II, LLC v. New England Health Care Emps. Union, Dist.
1199, 316 Conn. 618, 635, 114 A.3d 144 (2015) (citations omitted).
In summary, we conclude that the prohibition of the excessive use of force
in policing is an explicit, well-defined, and dominant public policy.
30
No. 80467-7-I/31
B. Whether the DRB’s Decision Violates Public Policy
SPOG contends that even if there is an explicit, dominant, and well-
defined public policy against the use of excessive force in policing, the superior
court erred by concluding that the DRB’s decision violated that policy. We
disagree.
In evaluating whether an arbitrator’s decision violates public policy, we
treat the decision as if it were part of the CBA. Kitsap County, 167 Wn.2d at 435
(citing Eastern Associated Coal Corp., 531 U.S. at 62). This is because, “[u]nlike
the commercial contract, which is designed to be a comprehensive distillation of
the parties’ bargain, the [CBA] is a skeletal, interstitial document.” Stead Motors,
886 F.2d at 1205. “The labor arbitrator is the person the parties designate to fill
in the gaps; for the vast array of circumstances they have not considered or
reduced to writing, the arbitrator will state the parties’ bargain.” Id. That is, the
labor arbitrator “ ‘is speaking for the parties, and his award is their contract.’ ” Id.(quoting Theodore J. St. Antoine, Judicial Review of Labor Arbitration Awards: A
Second Look at Enterprise Wheel and Its Progeny, 75 MICH. L. REV. 1137, 1140
(1977)). “Thus, what courts do when they review an arbitrator’s award is more
akin to the review of a contract than of the decision of an inferior tribunal: the
award, just as a contract, is the expression of the parties’ will and must be
enforced as expressed unless illegal or void.” Id. at 1205-06. And “ ‘[a]s with
any contract . . . a court may not enforce a [CBA] that is contrary to public
policy.’ ” Id. at 1210 (third alteration added) (quoting W.R. Grace, 461 U.S. at
766). Here, we conclude that the CBA, as interpreted by the DRB’s decision, is
31
No. 80467-7-I/32
contrary to public policy.
Port of Seattle is instructive. As discussed, the Port of Seattle court
concluded that there existed a policy against workplace discrimination requiring
employers to sufficiently discipline harassers. 176 Wn.2d at 722. After reaching
that conclusion, the court considered whether the arbitrator’s award reinstating
and imposing a 20-day suspension on an employee who hung a noose at work
violated that policy. Id. at 723. The court observed that in light of the public
policy at issue and the affirmative duty reflected therein, it would “vacate an
arbitration award that does not impose sufficient discipline to end current
discrimination and prevent future discrimination.” Id.The court ultimately concluded that the arbitrator’s award did not violate
public policy. Id. at 724. In doing so, the court took note that “[h]istorically, the
noose has been used as a hateful expression of violence and hostility toward
African-Americans—not just symbolically, but in actual horrific acts of murder.”
Id. at 723. It “acknowledge[d] this terrible and tragic history and condemn[ed] the
racial violence and threats of violence symbolized by the noose in the strongest
terms possible.” Id.The court also acknowledged, however, that it was “bound by the
arbitrator’s findings of fact,” including that the employee, Mark Cann, intended
the noose as a “ ‘prank’ ” on a 70-year-old, white co-worker, Cann was unaware
of the hateful history of the noose, which he associated with “ ‘Cowboys and
Indians,’ ” his actions “were ‘more clueless than racist,’ ” the African-American
employee who reported the noose did not find the display harassing or criminal,
32
No. 80467-7-I/33
and Cann had a 12-year employment history with the Port with no performance
problems. Id. at 719, 723-24. The court concluded that, under the
circumstances of the case as found by the arbitrator, “we cannot say that a 20-
day unpaid suspension would not provide sufficient discipline to cause this or
other employees to understand the serious nature of a noose in the workplace
and thus prevent a similar incident in the future.” Id. at 724. In other words, the
Port of Seattle court concluded that the specific circumstances of the case, as
found by the arbitrator, were properly considered as mitigating and necessitated
a conclusion that the arbitrator’s award was not too lenient in light of the public
policy at issue.
In the instant case, by contrast, some of the circumstances the DRB
considered as mitigating were not properly considered as mitigating, and the
circumstances of Shepherd’s case, as found by the DRB, necessitate a
conclusion that the DRB’s award was so lenient as to violate the public policy
against the use of excessive force.
Specifically, the DRB considered the following circumstances as mitigating
factors: (1) that Shepherd acted “perhaps reflexively” after being kicked; (2) that
“[h]is patience was being tried, and (3) that he sincerely believed that he did
nothing wrong. The DRB reasoned that “[t]hese circumstances tend to mitigate
somewhat the seriousness of Shepherd’s offense,” and “[a]n employee arguably
should not be unduly penalized for an honest, sincere and even reasonable, but
mistaken belief that he or she had done nothing wrong.” These circumstances
were not properly considered as mitigating for three reasons.
33
No. 80467-7-I/34
First, the DRB noted that while “Shepherd had time to assess the situation
and consider his options, that amount of time was measureable in seconds,
which isn’t much,” and thus, he “perhaps reflexively, used force.” But the DRB’s
finding that Shepherd had only seconds to consider his options was based on its
finding that only two seconds elapsed between the time Durden-Bosley kicked
him and the time that Shepherd’s punch landed on Durden-Bosley’s eye. 10 In
other words, the DRB reasoned that Shepherd had only two seconds to consider
his options because that is how long it actually took him to punch Durden-Bosley.
This circular reasoning is untenable, particularly in light of the public policy
against the use of excessive force. That policy is, as discussed, rooted in the
Fourth Amendment, which does incorporate a standard of objective
reasonableness to “allow[ ] for the fact that police officers are often forced to
make split-second judgments—in circumstances that are tense, uncertain, and
rapidly evolving—about the amount of force that is necessary in a particular
situation.” Graham, 490 U.S. at 396–97 (emphasis added). But Shepherd was
not “forced” to make a split-second decision. Rather, according to the DRB’s
own findings, Shepherd was the one who created the two-second window by
punching Durden-Bosley within that time frame despite the fact that Durden-
10 The DRB found that “[f]rom the in-car videos and forensic analysis, it
appears that approximately two seconds elapsed between the time Ms. Durden-
Bosley kicked Officer Shepherd in his face and the time he punched her in the
eye.” The DRB then observed that although SPD’s use-of-force policy required
the assessment of reasonableness to allow “for the fact that police officers are
often forced to make split-second decisions,” the two seconds that elapsed
between the time Durden-Bosley kicked Shepherd and the time his punch landed
on her eye “gave Officer Shepherd a little time to reflect, though not a lot of time.”
34
No. 80467-7-I/35
Bosley “wasn’t much of a flight risk since she was handcuffed, intoxicated, and
there were three officers and apparently a police dog at the scene,” Shepherd
could have put a barrier between himself and Durden-Bosley so she could not
have assaulted him again, and “he could have engaged the other officers at the
scene to work on subduing her without using undue force.” Under these
circumstances, suggesting that Shepherd’s “perhaps reflexive[ ]” use of force is a
mitigating factor is tantamount to excusing officers who act before they think.
Second, a finding that the officer’s patience was being tried would not be
surprising or unexpected in any case where an officer has been found to have
used excessive force. In the instant case, Shepherd responded to a
circumstance that is not all that unique for officers: angry and/or intoxicated
people, uncertainty on what, if anything occurred, and insults being lobbed at
officers. It is not surprising that an officer’s patience may be tried under these
circumstances. Nevertheless, as the superior court correctly concluded, to
consider this as a mitigating factor in the context of the excessive use of force
would be “to condone the use of force when dealing with difficult subjects when it
is universally understood that a significant part of the job of the patrol officer is
dealing with difficult subjects and doing so with patience.”
Third, the DRB considered Shepherd’s subjective belief that he did
nothing wrong, and it observed that Shepherd had several co-workers who
agreed with him. But consideration of these factors as mitigating telegraphs to
officers that a violation of a clear and specific policy will be condoned if the officer
is passionate enough that no violation occurred and enough colleagues agree
35
No. 80467-7-I/36
with him, however, mistaken they may be. Indeed, even under Fourth
Amendment standards, “[a]n officer's evil intentions will not make a Fourth
Amendment violation out of an objectively reasonable use of force; nor will an
officer's good intentions make an objectively unreasonable use of force
constitutional.” Graham, 490 U.S. at 397 (emphasis added).
In short, in determining its award, the DRB considered a number of
mitigating factors that were not properly considered as mitigating in light of the
public policy against the use of excessive force.
Furthermore, and as a result, based on the specific circumstances of
Shepherd’s case as found by the DRB, the DRB’s award reinstating Shepherd
was so lenient it violates the public policy against the use of excessive force.
Specifically, the DRB found that “the message was clear from the City that
alternatives to the use of physical force on a handcuffed person should be
utilized when circumstances permit,” and “[t]he written rule on use of force on
handcuffed prisoners is clear.” The DRB also found that Shepherd was
adequately trained on SPD’s prior policy, “which was carried forward into the
current policy,” and that “the clarity and specificity of the policy regarding
handcuffed subjects overrides any deficiencies in training.”
Yet the DRB also found that despite Shepherd’s adequate training and the
clarity and specificity of SPD’s policies, he punched a woman who, although
angry and resistant, was “not a large person” and was handcuffed and
intoxicated. The DRB also found that although Shepherd described Durden-
Bosley as “amazingly strong,” Shepherd himself was “relatively large and
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physically strong” with a “physique that would befit the former football player and
combat veteran that he was.” And, the DRB found that Durden-Bosley was the
only person arrested, and there were two additional officers, including a K-9
officer, at the scene. Thus, the DRB found, Durden-Bosley was not much of a
flight risk. Additionally, as discussed, the DRB found that after Durden-Bosley
kicked Shepherd, he had time to consider and execute multiple maneuvers other
than the use of force he ultimately chose.
Furthermore, even under Fourth Amendment standards, judging the
reasonableness of an officer’s use of force “requires careful attention to the facts
and circumstances . . . , including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether [the suspect] is actively resisting arrest or attempting to evade arrest by
flight.” Graham, 490 U.S. at 396. Yet here, although the DRB did not indicate in
its findings why Durden-Bosley was arrested, there is no indication that she was
arrested for a crime that would have justified a particular use of force, or that she
posed an immediate threat to the safety of officers or others at the scene.
Rather, in its summary of the evidence, which was undisputed, the DRB found
that Shepherd responded to a possible domestic violence incident, that Evelyn
reported that Robert told her that Durden-Bosley threatened to come over and
fight Robert, and that Robert denied being threatened. The DRB also found that
during Shepherd’s investigation, he remarked on Durden-Bosley’s obvious state
of inebriation, that she then became agitated and verbally confrontational, that
she denied threatening anyone; that she did not want Shepherd touching her;
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No. 80467-7-I/38
and that she made personally insulting remarks to or about Shepherd. The DRB
found that prior to arresting Durden-Bosley, Shepherd said “My patience is done.
It’s done. It’s, it’s over. So, somebody’s going to jail. Who’s it going to be?” The
DRB found that Shepherd told Durden-Bosley that she had “threatened
someone” and that she was under arrest. In other words, although the DRB
found that Durden-Bosley was intoxicated, agitated, and verbally confrontational,
nothing in the DRB’s findings about the lead-up to the arrest indicate that
Durden-Bosley posed an immediate threat or was arrested for anything other
than “threatening someone.”
In short, the DRB reinstated an officer who—despite being adequately
trained on SPD’s clear and specific policies regarding the use of force—violated
those policies by punching a handcuffed, intoxicated, subject even though she
was not much of a flight risk and other alternatives were available to him, and
who then adamantly denied doing anything wrong. The DRB did so by
considering, as mitigating, circumstances that were not properly considered as
mitigating in the context of the public policy against the use of excessive force,
and without making any other findings that would properly have been considered
mitigating with regard to Shepherd’s decision to punch Durden-Bosley. Under
these circumstances, which are based on the DRB’s own findings, the DRB’s
decision to reinstate Shepherd runs directly counter to the policy requiring the
City to impose sufficient discipline to deter future instances of misconduct. For
these reasons, the superior court did not err by vacating the DRB’s decision on
public policy grounds.
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No. 80467-7-I/39
SPOG disagrees and contends that in vacating the DRB’s award, the
superior court “improperly substituted [its] own judgment for that of the arbitration
panel and relitigated the issue of the appropriate penalty.” 11 SPOG relies on the
following passage from Port of Seattle: “ ‘[J]udgments about how a specific
employee will perform after reinstatement if given a lesser sanction are nothing
more than an exercise of the arbitrator’s broad authority to determine appropriate
punishments and remedies.’ ” 176 Wn.2d at 723 (quoting Stead Motors, 886
F.2d at 1213).
But that passage cannot be read in a vacuum. The Port of Seattle court
did acknowledge the general principle that judgments about a penalty’s effect on
a specific employee are properly left to the arbitrator. Id. But it did so in the
course of explaining that, nevertheless, “when an arbitrator’s punishment is so
lenient that it will not deter future discrimination—including discrimination
committed by others—it must be vacated.” Id. (emphasis added).
Put another way, the arbitrator decides, in the first instance as a matter of
CBA interpretation, the correct penalty vis-à-vis the offending employee. “By
contrast, in deciding whether to vacate an arbitral award because it conflicts with
public policy, a court ‘is actually concerned with the lawfulness of its enforcing
the award and not with the correctness of the arbitrator’s decision.’ ” Stead
11 SPOG also contends that, in vacating the DRB’s decision, the superior
court erred by repeatedly viewing a video of the underlying incident and
substituting its own findings for those of the DRB. But the video was part of the
DRB’s certified record, and SPOG cites no authority that restricts the number of
times the superior court can review the record. Additionally, the superior court
explicitly stated that it accepted the DRB’s finding of fact.
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No. 80467-7-I/40
Motors, 886 F.2d at 1227 (Wallace, J., concurring and dissenting in part) (quoting
Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. Local
985 v. W.M. Chace Co., 262 F. Supp. 114, 117 (E.D. Mich. 1966)). Thus, “a
court, in considering whether to vacate an award for public policy reasons, is not
reconsidering a decision already made by the arbitrator—that is, is not
substituting its judgment for the arbitrator’s on an issue on which the parties
bargained for the arbitrator’s judgment.” Id. Instead, while the arbitrator applies
the “law of the shop,” the court applies the “law of the land.” See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 57, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974)
(explaining that arbitrator’s task “is to effectuate the intent of the parties rather
than the requirements of enacted legislation”). SPOG’s argument that the
superior court substituted its judgment for the arbitrator’s misses the distinction
between the arbitrator’s role and the court’s role and, thus, is unpersuasive. Cf.
W.R. Grace, 461 U.S. at 766 (“[T]he question of public policy is ultimately one for
resolution by the courts.”).
For similar reasons, SPOG’s suggestion that the DRB’s reasoning is
sacrosanct, even with regard to what the DRB considered as mitigating factors,
also fails. Specifically, SPOG argues in its reply brief that this court “cannot . . .
impose its own judgment that a cited mitigating factor is actually an exacerbating
factor.” Relying in part on Int’l Brotherhood of Electrical Workers, Local 97 v.
Niagara Mohawk Power Corp., No. 97-7113, 1998 WL 253755 (2d Cir. May 8,
1998), SPOG contends that courts may not question an arbitrator’s reasoning.
But this argument again misses the distinction between the arbitrator’s role and
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No. 80467-7-I/41
the court’s. Furthermore, Niagara Mohawk is distinguishable because it involved
the nuclear safety industry, which was the subject of detailed regulations that
reflected a “favorable attitude . . . toward rehabilitation and reinstatement.” 1998
WL 253755 at *15. And as discussed above with regard to Eastern Associated
Coal, SPOG does not point to any similarly detailed regulatory scheme that
applies here. Moreover, even SPOG acknowledges that when the public policy
at issue mandates deterrence, the court must necessarily conduct “some
analysis of the seriousness of the misconduct, as found by the arbitrator, to
determine whether the discipline conflicted with the employer’s affirmative duty to
impose sufficient discipline.”
SPOG next asserts, “Here, no tribunal has found that Officer Shepherd’s
use of force fell below Fourth Amendment standards, so a court cannot find that
enforcement of this award would violate a public policy stemming from the Fourth
Amendment.” SPOG also asserts that the City intended for its revised use-of-
force policy “to be more restrictive than the constitutional floor” and “work rules
do not create the standard by which courts judge whether an award violates
Washington public policy.” (bold omitted). But SPOG does not dispute that, as
the DRB concluded, “[t]he revised SPD policies continued to reflect the
constitutional use of force standard set out by the U.S. Supreme Court in
Graham.” Furthermore, as demonstrated by Port of Seattle, when the public
policy at issue requires the employer to deter future instances of misconduct, the
question is not whether the offending employee’s conduct actually violated the
law—but whether the arbitrator’s award is so lenient that it will not deter future
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No. 80467-7-I/42
violations, including by others. See Port of Seattle, 176 Wn.2d at 724 (declining
to address whether employee’s conduct actually violated antidiscrimination laws,
“which would be analyzed under a very different legal framework”). We thus
reject SPOG’s suggestion that, where the relevant public policy calls for
deterrence, an arbitral award cannot violate that policy unless a tribunal
determines that the offending employee actually behaved unlawfully. 12 Cf. id. at
716 (“We review only the arbitrator’s award and not the underlying conduct.”).
SPOG next contends that “it would be an error of law to hold that a 15-day
unpaid suspension and modification of work duties was insufficient to deter other
employees.” It also contends that the DRB’s award “did not lead to increased
uses of force; rather, the City maintained its trend of reducing the use of force by
its officers.” In support of this contention, SPOG points to the SPD’s annual
report on the use of force, which SPOG attached as an appendix to its reply brief.
Under RAP 10.3(a)(8), “[a]n appendix may not include materials not
contained in the record on review without permission from the appellate court,”
and SPOG does not address the six requirements of RAP 9.11(a) for
supplementing the record. Therefore, we decline to consider the appendix.
Furthermore, and in any event, in affirming the superior court, we do not
12 An officer’s use of force might never be judicially tested against Fourth
Amendment standards for a number of reasons. For example, a prosecutor
might choose to dismiss charges against a suspect over concerns about the
arresting officer’s use of force. And targets of officers’ use of excessive force
might choose not to pursue civil action or, if they do, might negotiate settlement.
Indeed, here, no charges were filed against Durden-Bosley, and the City
represents that it settled Durden-Bosley’s § 1983 lawsuit against Shepherd and
the City.
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No. 80467-7-I/43
hold that a 15-day suspension with a modification of work duties is, as a matter of
law, insufficient to deter future uses of excessive force. Rather, we hold that the
DRB’s decision to reinstate Shepherd is insufficient under the circumstances of
this case, as found by the DRB. We need not speculate whether the DRB’s
decision would be insufficient in any case where an officer is found to have
violated SPD’s use-of-force policy. For these reasons, SPOG’s assertions are
unpersuasive.
Vacatur vs. Remand
SPOG contends that even if the superior court properly concluded that the
DRB’s decision violated public policy, the court erred by vacating that decision
rather than remanding to the DRB for further arbitration. The City responds that
because the superior court did not impose its own remedy, its decision to simply
vacate the DRB’s decision was proper. We agree with the City.
SPOG relies on Port of Seattle to argue that remand was required. There,
the superior court not only vacated the arbitrator’s award, but fashioned its own
remedy, including a six-month suspension, a letter of apology, participation in
anti-harassment training, and immediate termination should the employee violate
the Port’s anti-harassment policy during the four years following his
reinstatement. Port of Seattle, 176 Wn.2d at 719-20. On appeal, we reversed
the remedy portion of the superior court’s ruling. Int’l Union of Operating Eng’rs,
Local 286 v. Port of Seattle, 164 Wn. App. 307, 324, 264 P.3d 268 (2011). We
explained that when vacating an arbitration award, a court should “interfere[ ] to
the least possible degree while upholding public policy,” relying on the following
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No. 80467-7-I/44
guiding principles set out by the United States Supreme Court in United
Paperworkers International Union v. Misco, Inc.:
“[A]s a rule the court must not foreclose further proceedings by
settling the merits according to its own judgment of the appropriate
result, since this step would improperly substitute a judicial
determination for the arbitrator’s decision that the parties bargained
for in the [CBA]. Instead, the court should simply vacate the award,
thus leaving open the possibility of further proceedings if they are
permitted under the terms of the agreement. The court also has
the authority to remand for further proceedings when this step
seems appropriate.”
Port of Seattle, 164 Wn. App. at 323-24 (first alteration in original) (quoting
United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 40 n.10, 108 S. Ct.
364, 98 L. Ed. 2d 286 (1987)). On further review, our Supreme Court confirmed
“that a trial court vacating an arbitration decision cannot impose its own remedy;
instead it should remand to the arbitrator for further proceedings.” Port of
Seattle, 176 Wn.2d at 726 (emphasis added). However, the Supreme Court in
Port of Seattle ultimately held that the arbitration award should not have been
vacated because reinstating the employee, under the circumstances of that case,
did not violate public policy.
Accordingly, as we did in Port of Seattle, we look to the principles set forth
by the U.S. Supreme Court in Misco, i.e., that when vacating an arbitrator’s
award, the court should interfere “to the least possible degree,” leave open the
possibility of further proceedings if permitted under the terms of the CBA, and
“ ‘remand for further proceedings when this step seems appropriate.’ ” 164 Wn.
App. at 324 (emphasis added) (quoting Misco, 484 U.S. at 40 n.10).
We conclude that remand is not appropriate here. As discussed,
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No. 80467-7-I/45
reinstatement under the circumstances of this case would send a message that it
is not that serious when an officer, who has time to execute other options,
violates a clear and specific policy on which he was adequately trained by using
excessive force on a handcuffed subject “perhaps reflexively” because “[h]is
patience was being tried,” causes serious injury, and insists he did nothing
wrong. Therefore, where the City decided on termination, remanding to the DRB
to reinstate Shepherd subject to some other penalty would thwart the City’s
ability to ensure that no pattern or practice of using excessive force exists—
especially given SPOG’s representation that the maximum allowable suspension
would be 30 days. 13 For these reasons, we conclude that the public policy
against the use of excessive force in policing bars reinstatement under the facts
of this case, and thus, the superior court did not err by simply vacating the DRB’s
decision. Cf. Eastern Associated Coal Corp., 531 U.S. at 62-63 (“[T]he question
to be answered is not whether [the employee’s conduct] itself violate[d] public
policy, but whether the agreement to reinstate him does so.”).
SPOG’s Counterclaims
As a final matter, SPOG contends that the superior court erred “by failing
to grant” SPOG’s counterclaim for breach of contract. SPOG asserts that there
is “no dispute that the City has not complied with any part of the order in the
arbitration award,” and “failing to comply with an arbitration award is a breach of
13 See Seattle Municipal Code § 4.08.100. The CBA also provides, “On
indefinite suspensions used for investigative purposes which do not result in
termination of employment or reduction in rank, the resultant punishment shall
not exceed thirty (30) days including the investigative time incorporated within the
indefinite suspension.”
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No. 80467-7-I/46
the underlying [CBA].” Because the superior court did not err in vacating the
DRB’s decision on public policy grounds, it also did not err by not enforcing the
decision or ordering the City to comply with it.
We affirm.
WE CONCUR:
46