SPD chief bans use of tear gas at protests for next 30 days

After a joint recommendation from the three police accountability groups with oversight of SPD, this afternoon Chief Carmen Best issued an order banning the use of CS tear gas for the next 30 days at events where demonstrators are exercising their first amendment rights.

SPD’s SWAT team will still have tear gas available as a tool to deploy, but its use will only be during an incident involving life-safety and requires explicit authorization by the Chief of Police.

Durkan and Best said that they have asked the CPC, OPA and OIG along with King County Public Health and other outside experts, to use the 30 next days to review officers’ individual actions and crowd control practices including both tear gas and pepper spray, and to provide recommendations back to the department.

This morning, the Office of Professional Accountability, the Office of the Inspector General, and the Community Police Commission jointly sent a memo to Mayor Durkan, Chief Best, and City Attorney Pete Holmes with their recommendations on the use of tear gas by SPD, after the City Council requested on Wednesday that they look at the issue. Their memo calls for SPD to discontinue use of tear gas until appropriate use can be vetted by oversight authorities and written into an official SPD policy:

One recommendation alone will not change the system. It is clear that this is only one action of many we must all take to build public trust. To this end, the CPC, OIG, and OPA ask the Seattle Police Department to cease the use of CS gas in response to First Amendment activity, until such time as any appropriate use can be vetted by oversight entities and incorporated into a written SPD policy. That policy should include sufficient safeguards so that CS gas is only used, if at all, in a manner that keeps faith with the public trust.

The memo raises several issues with SPD’s use of tear gas. Among them:

  • There is no clear, department-wide policy guidance or training on the use of tear gas by police officers other than the SWAT team. OPA notes that its preliminary investigation into the events of the last few days uncovered evidence of SPD officers other than SWAT tam members deploying tear gas.
  • Since tear gas isn’t in the SPD manual, portions of which related to use of force and crowd management the federal court approved as part of the consent decree implementation, the use of tear gas has not been authorized under the Consent Decree as a crowd management practice. That means that the use of tear gas by officers earlier this week was out of compliance with the Consent Decree — and if pressed to do so, Judge Robart could find the city out of compliance and reset the two-year sustainment period.
  • Yesterday King County Health Officer Jeff Duchin issued a recommendation saying that he opposes the use of tear gas and other respiratory irritants because they can potentially increase the spread of, and vulnerability to, COVID-19.
  • The use of tear gas is banned in military engagements by the Chemical Weapons Convention.
  • Tear gas is considered military equipment, and the city government has previously made clear that “military equipment is not consistent with how the city envisions policing its communities.”
  • Using tear gas in residential neighborhoods, as happened earlier this week, has adverse effects on residents living near or above the locations where it is deployed.

When asked why the ban was only for 30 days given the widespread opposition to the practice, Best and Durkan said that the 30 days were to allow the accountability bodies, including the court monitor associated with the consent decree, to do a full and thorough review, including suggesting alternative practices. Durkan emphasized that if the accountability groups and members of the community came back with a unanimous recommendation, she had no doubt it would be adopted — but if they asked for more time to complete their work, the ban would be extended until their recommendations were presented. Durkan also noted that since the consent decree is still in full effect, ultimately the court will need to approve the change in policy.

Chief Best confirmed that pepper spray is still approved for use by SPD personnel, but that there is already a department-wide policy on the use of pepper spray, and all uses are reviewed afterwards.

This afternoon, Council member Herbold, who chairs the city’s public safety committee, issued a press release stating her support for the recommendation to ban on the use of tear gas by SPD officers.

In the shadow of the city’s withdrawal of its motion to terminate part of the consent decree, Durkan said this afternoon that there is no longer a timeline for the city’s plan to come back into compliance on police accountability and the disciplinary system. The city had promised to deliver a plan by August 1 based upon a review of the current system that was completed early this year, but has now backed away from that date. Durkan said that given what is happening on Seattle’s streets, in the country, and in “our relationships,” she wanted to “take a hard look at everything in that review, not just the four areas the court identified, but other areas.” She said that she wanted to talk to community members, the City Council, and the OPA, OIG and CPC, “to see what we should come back to the court with.”

On a somewhat related note, Durkan said that she has been told by demonstrators that given their proximity to a large number of other people over the past several days they wanted to be able to get tested for COVID-19. so to that end, the city and UW are amending the agreement signed yesterday so that anyone who has participated in a protest can get tested for free at one of the city’s new testing sites, even if they are not currently showing symptoms of COVID-19.

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