Today the 9th Circuit Court of Appeals ruled that the Seattle Police Department’s “use of force” policy for its officers is constitutional, in a major win for the city and its efforts to enact police accountability reforms under its Consent Decree with the DOJ.
As part of the city’s actions following the signing of the Consent Decree, in November of 2013 the City produced a new “use of force” policy that set in place guidelines for when officers can use deadly force in interactions with members of the community. the following month, U.S. District Court Judge James Robart approved that policy. Here’s a description of the policy, from today’s ruling:
The UF Policy states, in part, that “[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.” The UF Policy provides a set of factors that officers must consider to determine whether a proposed use of force is objectively reasonable, necessary, and proportional to the threat at issue.
Although the UF Policy requires officers to consider those factors before using a firearm, the UF Policy also states that officers must consider those factors only “[w]hen safe under the totality of circumstances and time and circumstances permit[.]” The UF Policy also requires officers to use deescalation tactics to reduce the need for force only “[w]hen safe and feasible under the totality of circumstances[.]”
A group of about 125 SPD officers filed suit against the city, challenging the policy, alleging that it unreasonably restricts their right to use department-issued firearms in self-defense under the Second Amendment. They claimed other constitutional violations as well, but the Second Amendment claim was the foundation of their case.
In October of 2014, Robart granted the city’s motion to dismiss, in which he found that the use of force policy did not “burden conduct protected by the Second Amendment.” The police officers appealed.
The interpretation of the Second Amendment as granting the right of self defense was established by the Supreme Court in the landmark 2008 case District of Columbia vs. Heller. In a subsequent case, the 9th Circuit established a two-step test for determining whether a challenged law, regulation or policy violates the Second Amendment:
- The court asks whether the challenged law burdens conduct protected by the Second Amendment.
- If yes, then it determines whether to apply “strict scrutiny” or “intermediate scrutiny” based on how closely the policy hits the core of the Second Amendment right, and how severely it burdens it.
An important side note here: the courts are ruling on a “motion to dismiss” by the City, before a whole trial has taken place. A precondition for granting a motion to dismiss is that there can’t be substantive disagreement about the facts of the case as submitted by both sides; it needs to be a ruling on the conclusions of law. And when ruling on motions to dismiss, the court interprets the facts in a manner most favorable to the other party (in this case, the police officers) and if it finds that there is no legal standing, it grants the dismissal.
For step one, the court first looks at whether the rule is one of a list of “presumptively legal regulatory measures” that the Supreme Court identified in Heller. Those include prohibitions on carrying concealed weapons, possession of firearms by felons and the mentally ill, prohibitions on firearms in schools and government buildings, conditions on the sale of firearms, and prohibitions on carrying “dangerous and unusual weapons.” The Appeals Court concluded that the use of force policy didn’t match any of these. So then it looks at “whether there is persuasive historical evidence showing that the regulation does not impinge on the Second Amendment right as historically understood.” Here the Court found the evidence submitted by both sides to be sparse and inconclusive — and thus for the purposes of adjudicating a Motion to Dismiss, assumed (explicitly without deciding) that the facts favor the police officers and thus that the policy does burden the officers’ Second Amendment right.
On to step two in the test: whether to apply strict scrutiny or intermediate scrutiny. According to the Heller ruling, self-defense is in the core of the Second Amendment’s granted rights. But the Supreme Court requires that the core right be balanced out against the context in which the government is asserting the rule. In this case, the question is whether the City of Seattle enacted it as a regulating body, or as the employer of the police officers. If it was simply as a regulator, then its interest would be “relatively subordinate” to the officers’ Second Amendment right to self-defense. But in this case, the government is enacting it as the officers’ employer and its interest in “achieving its goals as effectively and efficiently as possible” — in this case regulating the use of firearms by its employees — is “significant.” In addition, the policy doesn’t bar possession of firearms, but only regulates the manner in which they may be used and includes several reasonable accommodations; that limits the severity of the burden it places on the officers’ rights. So the Court concluded that intermediate scrutiny should be applied in this case.
In order to survive intermediate scrutiny, the use of force policy must have a stated objective that is “significant, substantial, or important.” It must also be a “reasonable fit” between the policy and the stated objective — i.e. it must address the object and can’t overreach.
The Court cited the city’s goal in signing the Consent Decree, to “ensure that SPD’s policies and procedures… are sufficient to prevent… a pattern or practice of constitutional violations.” It also found that the city had stated an important objective of “ensuring public safety and police officer safety.” Further, it found that the policy drew “reasonable inferences” that it would assist in ensuring the safety of both the public and the police officers, and was well fit to the goal:
In this case, the UF Policy states that “[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law enforcement objective.” The UF Policy also requires that Appellants use “[d]e-escalation tactics and techniques . . . when safe and without compromising law enforcement priorities,” and states that Appellants “shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on” a variety of factors. Those provisions advance the City of Seattle’s important government interest of ensuring the safety of the public by mandating de-escalation techniques and reducing the likelihood that a firearm will be drawn or used where such force is not “objectively reasonable,” “proportional to the threat or urgency of the situation,” or “necessary to achieve a law-enforcement objective.”
The UF Policy also advances the City of Seattle’s important government interest of ensuring the safety of its police officers. The UF Policy requires Appellants to employ de-escalation techniques only “[w]hen safe under the totality of the circumstances and time and circumstances permit.” Thus, the UF Policy expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that “sometimes, the use of force is unavoidable.” The UF Policy also provides that Appellants may use deadly force where an objectively reasonable officer would conclude that the “threat of death or serious physical injury to the officer or others is imminent.” These provisions ensure that Appellants may use their department-issued firearms to defend themselves and the public.
Based on this, the Court concluded that the use of force policy survives intermediate scrutiny and thus is constitutional. Having reached that conclusion, the rest of the officers’ claims of constitutional violations fell apart.
This is a significant win for the City of Seattle in advancing the cause of police reform. It has many more hurdles to jump before it reaches the finish line, including:
- negotiating a new labor agreement with police officers (negotiations have been stalled for a year);
- defending an unfair labor practice complaint filed by the police officers’ union over the deployment of body-worn cameras;
- meeting the rest of the requirements of the Consent Decree, including establishing a better trust relationship with the community.
But there’s no doubt this ruling will help.