SEATTLE (Legal Newsline) -The City of Seattle was correct when it fired a police officer who punched a handcuffed woman in the face and fractured her skull, a Washington appeals court ruled, rejecting the police union’s argument a 15-day suspension was enough.
Officer Adley Shepherd was responding to a domestic disturbance when a handcuffed woman wearing Doc Marten boots kicked him in the face as he tried to place her in the back of a squad car. Shepherd reacted by punching her in the face and causing a small fracture under her right eye.
Seattle’s police chief Kathleen O’Toole decided to fire Shepherd for violating the city’s use-of-force policy. Seattle has been operating under a settlement agreement with the federal Justice Department since 2012 and had recently revised that policy following complaints police used excessive force dealing with civil-rights protests over the summer.
The Seattle Police Officers’ Guild appealed Shepherd’s firing to the three-member disciplinary review board, as allowed under the Guild’s collective bargaining agreement with the city. The DRB decided Shepherd had violated the use-of-force policy but that outright dismissal was too harsh a penalty.
Shepherd “had been kicked in the face by a booted woman and felt stinging pain,” the DRB ruled, and while he violated department policy, “the question was a close one.” Shepherd remained adamant he had done no wrong, the board noted, and he was supported by several fellow officers. The board ordered Shepherd reinstated with back pay except for a 15-day suspension and recommended he be removed from patrol and training duties.
The city challenged the DRB’s decision in Superior Court, which ruled the board’s penalty was so lenient that it violated the public policy against excessive use of force in policing.
The Washington Court of Appeals agreed. In an April 5 decision, the court said that while arbitration agreements are generally treated as final, as with any other contract they can be challenged on the basis of violating public policy. The Police Guild argued there was “no explicit, dominant, and well-defined public policy” that the arbitration decision could violate. But Seattle said the Fourth Amendment’s prohibition of unreasonable force and the city’s consent decree with federal authorities represented public policy.
The Guild cited a Washington Supreme Court decision holding there was no explicit state policy that prohibited untruthful officers from continuing to serve. The same court rejected another union’s complaint that an employee was improperly fired for hanging a noose in the workplace, however.
Finally, the Guild argued a single arbitration decision wouldn’t expose the city to claims it had engaged in a pattern or practice of violating the civil rights of citizens. The appeals court rejected that as “unpersuasive” since a pattern consists of numerous individual decisions.
“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,” the appeals court concluded.
“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 with him, however, mistaken they may be.”