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Originally published Monday, July 16, 2012 at 5:00 PM

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City attorney rebukes McGinn's DOJ strategy

City Attorney Pete Holmes has sent a sharply worded letter to Mayor Mike McGinn, warning that McGinn's legal strategy in negotiating police reforms with the Department of Justice has put the city on the verge of a civil-rights lawsuit that could have dire consequences.

Seattle Times staff reporters

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In a sharply worded letter to Mayor Mike McGinn, City Attorney Pete Holmes has warned that McGinn's legal strategy in negotiating police reforms with the Department of Justice has put the city on the verge of a civil-rights lawsuit that could have dire consequences.

The Justice Department intends to file the lawsuit in federal court unless a negotiated agreement is reached with the city by the end of the month, Holmes said in the letter dated Friday that also went to three key City Council members.

The six-page letter, which provides an extraordinary glimpse into the secret negotiations, said the city has "relied too heavily" on the Police Department in responding to the Justice Department's December report that found police had engaged in a pattern of using excessive force. The federal investigation also found evidence of biased policing.

"A troubling victim narrative has emerged at SPD, in which DOJ is cast as a 'bully' seeking to impose a 'shadow chief' at an unverified, speculative cost," Holmes wrote in the confidential letter, a copy of which was obtained by The Seattle Times.

Holmes said he does not see a need to replace Police Chief John Diaz as part of a settlement, saying he might be "precisely the individual" to carry out reforms.

But changes to the command staff should be discussed and recently retired Seattle police leaders should be brought in to assist, he wrote.

The letter also reveals that the city has engaged in a narrow legal theory to rebut the Justice Department; missed key opportunities to shape an agreement; and rejected two proposed monitors who would oversee a court-ordered consent decree.

It also criticizes the Police Department's "20/20" reform plan championed by McGinn as an alternative to the Justice Department's more sweeping proposals, saying the plan's 20 initiatives over 20 months lack "substance and accountability, even in its implementation."

Noting the city is at "critical juncture" in its negotiations, Holmes said that if mediation is not successful, the city "will face costly, burdensome, and risky litigation with the federal government."

Holmes declined to comment on the letter Monday.

McGinn's spokesman, Aaron Pickus, issued a written statement Monday night: "We are negotiating in good faith to achieve the goals of lasting reforms and effective policing, with an awareness of our budget constraints. These negotiations are ongoing."

Executive Assistant U.S. Attorney Thomas Bates in Seattle declined to discuss deadlines or the talks.

Holmes suggested that the three City Council members — Bruce Harrell, Sally Clark and Tim Burgess — rejoin the city's effort to reach an agreement.

The three — who declined Monday to disclose the letter — withdrew in March from working with McGinn after concluding he did not want to collaborate with them to negotiate a settlement with the Justice Department.

Holmes went to McGinn two weeks ago to propose that the council members rejoin the effort, securing McGinn's agreement, according to two sources familiar with the discussions.

But McGinn didn't follow through, prompting Holmes to write the letter, the sources said.

Before he became city attorney in 2010, Holmes was the former director of a police-accountability board that was viewed as critical of police internal-investigation policies. Holmes' office has assisted McGinn in the current negotiations, but the mayor's legal counsel, Carl Marquardt, has taken a more prominent role in sparring with the Justice Department.

The city and the Justice Department currently are engaged in mediation, but the mediator, Teresa Wakeen, has become frustrated with the lack of progress, one of the sources said.

"It's just a mess," the source said.

In his letter, Holmes wrote that the city has an "unprecedented opportunity" to reach agreement with the Justice Department to bring about reform of the Police Department, "greatly benefiting the City for generations to come."

"But the clock is running out on this reform opportunity," he wrote, while noting that negotiations with federal lawyers have been difficult and that the Justice Department report "has its share of shortcomings."

As the Justice Department has set and lifted deadlines, federal attorneys have continued to insist that a court-appointed, independent monitor oversee changes in the Police Department.

Holmes urged that the city make selection of a monitor a top priority, saying the city's strategy of delaying that decision has injected uncertainly into the negotiations.

He said the rejection of Merrick Bobb was "premature and a mistake." Bobb, who runs a Los Angeles-based consulting firm, is one of the nation's top experts on police accountability.

Similarly, the city's "delay strategy" might have eliminated Saul Green, Holmes wrote, referring to the Detroit lawyer who oversaw reforms of Cincinnati's police in the 2000s after a Justice Department investigation.

Holmes wrote the city is relying on a legal approach that "turn(s) on a theory" that the city cannot be held liable unless it's proved that an official policy led to alleged constitutional violations.

The letter said applying that standard "lowers our sights" for a reformed Police Department and might explain "why some underestimate the City's legal exposure in adversarial litigation with DOJ, from purely a risk- management perspective."

Holmes added, "It is important that we not interpret DOJ's retreating deadlines as evidence of bluffing, or conclude that DOJ cannot prevail in Court."

Litigation will be "costly in dollars, morale, public safety and public relations," with a loss paving the way for a federally monitored plan with little or no city input, Holmes wrote.

McGinn has said he does not oppose a monitor in some circumstances but has expressed concern over the cost and burden of wide-ranging reforms recommended by federal attorneys, including adding more sergeants, bolstering training and adding accountability measures.

Holmes said in the letter that changes won't take hold unless they are mandated in a court order.

While the Justice Department's proposal, which was given to the city March 30, is flawed, Holmes said, it represents the "best starting point for such a reform plan."

One sticking point has been the Justice Department's insistence that the city also address, under court supervision, evidence that officers have engaged in biased policing against minorities.

The city has said the Justice Department did not make a formal finding on that issue and that the city can address it through the "20/20" plan.

In a break from that position, Holmes said in his letter that it is "critical to include measures designed to curb discriminatory policing and improve SPD's accountability mechanism ... in the monitored consent decree."

Holmes wrote that the city should use the negotiations as an opportunity to resolve issues such as federal immigration detainment practices that alienate Seattle's immigrant population, as well as the federal drug war that has widened racial disproportionality in the criminal-justice system.

"But instead of addressing these federal policy issues, we've attacked the wrong target — the Report," Holmes wrote.

Citing legitimate budget concerns related to Justice Department proposals, he said the city should seek federal help to fund police reforms, including redirected federal grants for training purposes.

Holmes also pushed McGinn to act as "Commander in Chief," adding, "Civilian control of SPD is the Seattle Way. And times like these require strong leadership and control of SPD."

Steve Miletich: 206-464-3302

or smiletich@seattletimes.com

Mike Carter: 206-464-3706

or mcarter@seattletimes.com

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