The story is told in the Bible and in the Jewish scriptures of a teenager named David who volunteered to fight a great Philistine warrior. The Philistine was a giant, described in the holy books as 7 to 9 feet tall, with fearsome strength and an arsenal of deadly weapons. David was your average teen shepherd boy with no armor and just a sling and a stone. So everyone thought David had no chance, except David.
Well…You know what happened.
Today, it's common to refer to any engagement between an underdog and a powerful opponent as a David vs. Goliath match. This is the story of such a mismatch.
Late last month 126 officers of the Seattle Police Department decided it was time to stand up and challenge Goliath, in this case the federal government. Instead of a sling and a stone, they wielded a lawsuit.
Since the summer of 2012, the Seattle PD has been operating under a consent decree as settlement of a U.S. Department of Justice investigation. As part of that settlement, the SPD had to rewrite its use-of-force policy and have that new policy approved by the DOJ, the monitor, and a federal judge.
The officer plaintiffs in the lawsuit say the new policy is confusing and overly complicated, which makes their jobs more dangerous and violates their civil rights. They are suing a long list of federal and city officials and agencies, including Attorney General Eric Holder, the city, and the SPD.
Do they have a fighting chance? Probably not. They have no representation and are facing the endless ranks of DOJ attorneys. They don't even have the support of their union. So their claim will likely be dismissed before it is heard.
Even so, you have to admire their chutzpah.
And just maybe they have a case. Their primary argument is that the new policy does not conform to Graham v. Connor. Specifically, they argue the policy adds additional requirements to the "objective reasonableness standard."
The plaintiffs claim the policy implies that officers should use less force than reasonably necessary or at least attempt to use less than reasonably necessary when facing dangerous subjects. Which places officers at more risk.
That increased risk is one of the reasons why this is a civil rights suit. The plaintiffs say that by forcing them to assume more risk on the job, the new policy violates their Fourth Amendment right to protect themselves.
Another big concern voiced by the plaintiffs is their belief that an officer's use of force will be evaluated after an incident, using information that was not available to the officer at the time instead of the totality of circumstances then known by the officer. "What has become increasingly clear is that the new standard for police conduct under the UF policy is perfection, as determined by 20/20 hindsight by inexperienced, untrained civilians, and non-patrol officers from the safety of a desk or committee room," the suit says.
Perhaps the most explosive contention by the plaintiffs is contained in their statement for why Holder is named as a defendant. The suit argues he has presided over a Department of Justice that has the goal of rewriting law enforcement use-of-force policies "in a manner that conflicts with the Constitution."
There's much more to this suit, but I've hit the basics. You can view the entire document at PoliceMag.com/seattlesuit.
Reaction from the DOJ was swift and dismissive. The day after the suit was filed U.S. Attorney Jenny Durkan told the Seattle Times the case had no merit.
I'm not an attorney or a police use-of-force policy expert so I can't give you a definitive opinion on this case. What I can say, however, is that it's really cool to see officers fighting back against a consent decree. Sometimes, I think the lawyers for the DOJ's Civil Rights Division—many of whom have never worked as cops or even served in the military—hold this bizarre belief that officers delight in shooting and killing people. Maybe they wouldn't be so quick to crucify officers and agencies if they had actually ever faced a deadly threat.
So can a group of officers actually defeat a federal consent decree? Again the answer is maybe. In 2002, the Columbus, Ohio, Fraternal Order of Police worked with the city and forced the DOJ to back down. The Seattle plaintiffs have a tougher fight on their hands because they are standing alone. But you never know. Sometimes that lone shepherd boy knocks the giant on its ass.