SPD officers file federal suit over new 'use of force' guidelines

Officer push back protesters after they started a fire at Broadway and East Pine Street during a May Day anti-capitalist march on Thursday, May 1, 2014. Marchers called for an end to capitalism and protested Seattle Police officers. less Officer push back protesters after they started a fire at Broadway and East Pine Street during a May Day anti-capitalist march on Thursday, May 1, 2014. Marchers called for an end to capitalism and protested ... more Photo: JOSHUA TRUJILLO, SEATTLEPI.COM Photo: JOSHUA TRUJILLO, SEATTLEPI.COM Image 1 of / 1 Caption Close SPD officers file federal suit over new 'use of force' guidelines 1 / 1 Back to Gallery

More than 100 Seattle police officers claim in a federal lawsuit filed Wednesday that new, federally mandated use of force guidelines enacted this year are dangerous to themselves and the public, and prevent them from curbing crime.

The complaint came the same day King County Executive Dow Constantine ordered an inquest into an officer's fatal shooting of an intoxicated man who wielded what turned out to be a fake gun. That incident took place in Sodo in January.

The 80-page lawsuit was filed against U.S. Attorney General Eric Holder, the City of Seattle, Mayor Ed Murray, former Mayor Mike McGinn, the Seattle police chief, City Attorney Pete Holmes and Merrick Bobb, the Department of Justice's monitor of the Seattle Police Department.

Several other defendants affiliated with the DOJ and city government are also named.

The civil rights complaint says new mandates, intended to respond to federal complaints about a "pattern of excessive force" in the police department, actually force officers to allow a dangerous or suspicious situation to escalate before they can intervene.

The police officers also claim through the lawsuit that the new guidelines favor the rights of suspects over those of the police officers.

Federal intervention

U.S. Attorney Jenny Durkan released a report in December 2011 based on a Department of Justice investigation, saying that Seattle police had engaged in unwarranted use of force that violated the constitutional rights of the targets of that force.

The report said that the Seattle Police Department also lacked a supervisory process to review officers' use of force.

The investigation was initiated after a string of violent incidents involving police officers, culminating in the August 2013 shooting of homeless woodcarver John T. Williams.

Investigators found that one in five uses of force by Seattle officers was unconstitutional.

Police say in the new lawsuit that the information the Department of Justice used as the basis of its scathing report was "descredited" and "incorrect."

DOJ officials negotiated a legally binding agreement with the city, mandating various reforms to address the issues laid out in the report. The agreement required that an independent investigator -- ultimately Bobb, named in the new lawsuit -- monitor the police department's compliance with the court order.

Former Mayor Mike McGinn was resistant to the federal intervention at first. He and the police department took issue with the DOJ report's finding. However, the city and feds signed an agreement in 2012.

New use-of-force guidelines were approved by a federal judge in December 2013 and went into effect Jan. 1.

The new use-of-force policy emphasizes "minimal reliance upon the use of physical force."

The new policy also restricts the use of any physical force except when "no reasonably effective alternative appears to exist."

The policy says deadly force may be used only when death or serious physical injury to the officer is imminent, and then goes on to explain, through a series of specific requirements, the definition of imminent danger.

Part of the federally mandated reforms included new guidelines on stops and detentions, as well as policies on bias-free policing, which went into effect on Jan. 31 this year.

Terry stops

Partly at issue in the police officers' complaint is their right to reasonably search, under the Constitution, a person suspected of criminal involvement.

A "Terry stop" allows police to detain someone based on reasonable suspicion of involvement in criminal activity. It is an investigative tactic that falls short of finding probable cause to arrest a person; however, the subject of a Terry stop is not legally free to leave.

New guidelines on Terry stops, implemented shortly after the use-of-force reforms, created more stringent criteria before police can make such a stop, thereby limiting an officer's discretion.

Officers say their Fourth Amendment rights to perform reasonable searches and seizures are violated under the new policies.

The new requirements indicate that an officer can only stop someone for, at minimum, "completed misdemeanor crime," and only if the person committing the crime poses a danger to public safety.

That means police can't stop a person casing cars and tugging on door handles, for instance, if a crime has not been committed. And if a crime has been committed, the person must be at risk of escalating the situation or the crime has to have caused public harm.

Use of force

Most of the lawsuit, however, addresses the use-of-force reforms.



The 126 police officers named as plaintiffs in the federal lawsuit say the new use-of-force rules violate their own constitutional rights to use reasonable force to protect themselves and others under the Second and Fourth amendments.

The new use-of-force guidelines are too "long, complex and contradictory" for any officer to properly recall in the heat of the moment, when force might be necessary, they say in the lawsuit.

"We are being judged under an impossible standard that puts our lives at unnecessary and therefore unreasonable risk," the complaint reads.

Officers say the architects of the new policies showed "reckless and deliberate indifference to the protections afforded Plaintiffs by the Constitution."

The complaint goes on to say that officers are now required to use "significantly less force" than is being used against them by suspects and interferes with officers' discretion in responding to dangerous situations.

Police also fear that the use-of -force restrictions force them to stand by during a criminal situation until they're compelled to take dramatic action, when they could have resolved a situation more proactively and peacefully.

Furthermore, the complaint says that more cops are turning in their Tasers for fear they will face unreasonable discipline after using them. More officers are also hesitant to respond to calls for backup, the lawsuit claims.

Meanwhile, Kathleen O'Toole was selected by Murray to take over the police department pending a City Council vote in June. Among her top tasks is to continue to guide the agency through the fulfillment of federally ordered requirements.

When asked about the new "Terry stop" policies on the day Murray announced her appointment, May 19 -- before the federal lawsuit surfaced -- O'Toole said she would need to review the new policies and talk to officers, but offered the following:

"Change is difficult for people and they're under the spotlight at this point. ... I think they'll get used to it. They'll adjust. ... "I'd like to emphasize the need to do more positive encounters and more positive interaction with the community and sometimes that can be very productive from a law enforcement perspective, too."

The mayor's office said it had yet to review the complaint, but Murray issued the following statement Wednesday evening:

"The police department will comply with that court order. The City of Seattle will not fight the Civil Rights Division of the U.S. Department of Justice. This is not the 1960s. "I have nominated a new police chief (Kathleen O'Toole) to start work in a few short weeks, and her top priority will be to meet the requirements of the federal court order and make Seattle's police force a national model for urban policing."

The spokeswoman for City Attorney Pete Holmes said the office's response would come via court memos filed in the case.

The officers seek damages for lost time and wages and improper disciplinary action stemming from violations of the use-of-force policy where police officers were found to have acted constitutionally. They also seek damages for, as they put it, money and resources directed away from their services and needs and funneled to the development of the use-of-force policy.

The police officers are representing themselves in this case.

Lynsi Burton can be reached at lynsiburton@seattlepi.com. Follow her on Twitter at @LynsiBurton_PI.

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