Ordinance banning “less lethal” devices violates Consent Decree, says DOJ and police monitor

In an official notice filed with the U.S. District Court, today the City of Seattle acknowledged that it has been advised by the Department of Justice and the court-appointed police monitor that on June 15th when the City Council passed a sweeping ban on most “less lethal” devices used for crowd control (including tear gas and blast balls), it violated the Consent Decree.


The issue isn’t necessarily with the merits of the ordinance, though there are valid policy questions to consider whether use of those “less lethal” devices prevents escalation to more serious use of force. But the core objection raised by the DOJ and the police monitor is a procedural one: that under the terms of the Consent Decree, the city and SPD are required to present any proposed changes to the use-of-force and crowd-control policies (and any of the other policies) to the DOJ and police monitor for review and ultimately to the court for its approval. Over the past eight years the city has consistently followed that rule, and the policies in place prior to the Council’s latest ordinance had been reviewed and approved by the Court.

The Council, however, did not follow that process — nor did it even wait for the city’s own policy-accountability bodies, the OPA, OIG, and CPC, to weigh in on the proposed legislation, despite those groups asking the Council for time to review it and provide their recommendations. Instead it simply plowed ahead. On June 26, Mayor Durkan returned the ordinance unsigned, which has the effect of allowing it to go into effect anyway on July 26.  However, in her letter returning the bill unsigned she specifically called out her concerns with potential violations of the Consent Decree:

“the law directly impacts and possibly contravenes SPD policies developed and approved by federal court judge James Robart in the consent decree litigation. These policies were subject to review by Council, the previous Mayor, the accountability partners, U.S. Department of Justice and the federal Court Monitor. If the ordinance is found in conflict with court orders under the consent decree, it could bring the city out of compliance with the court orders”

The Council’s bill did acknowledge that the Consent Decree was implicated, as it instructed the City Attorney’s Office to notify the court of its passage (the notice filed today accomplished that). According to the notice, “In discussions with the City regarding the CCW Ordinance, DOJ and the Monitor have taken the position that the Consent Decree prohibits SPD from implementing changes to the policies required by the Consent Decree until after DOJ, the Monitor, and the Court have had an opportunity to review and approve them.

Paragraph 177 of the Consent Decree reads:

SPD will submit the policies, procedures, training curricula, and training manuals required to be written, revised, or maintained by the Settlement Agreement to the Monitor and DOJ for review and comment prior to publication and implementation. The Parties will meet and confer regarding any comments on the policies, procedures, training curricula, and training manuals within 45 days of submission if necessary.

Attached to the notice filed today were several other documents, including a statement from the Office of Police Accountability and the Office of the Inspector General for Public Safety related to the ordinance passed by the Council.

Fundamentally, OPA and OIG recognize the right and prerogative of the City Council, as the duly elected representatives of the City, to legislate in this area. However, OPA and OIG simultaneously recognize that the ordinance addresses matters within the four corners the Consent Decree and thus are subject to the Court’s jurisdiction. Moreover, OPA and OIG recognize that, based on the terms of the Consent Decree, the Court’s prior rulings, and the past practice of the City, alterations to policies under the Court’s jurisdiction must be reviewed by the U.S. Department of Justice and the Monitoring Team prior to submittal to the Court for approval.

Without offering any substantive opinions at this point on the contents of the ordinance, OPA and OIG have procedural concerns regarding the impact of legislating matters under the Court’s jurisdiction, as well as on the implementation of significant changes to SPD policy without allowing the accountability entities to provide input and recommendations for consideration by the City and the Court.

It concludes by asking the Court to wait to take any action until it can complete its review and recommendations by its target date of August 15.

We respectfully request that whatever action the Court may take in response to the parties’ current filings regarding the Ordinance, it reserve any ruling on the specific language or provisions of SPD policy regarding the use of less lethal weapons until the City submits a copy of the accountability entities’ recommendations to the Court for its consideration.

Also attached is a line-by-line edit of SPD’s use-of-force and crowd control policies as required under the Council’s recently-passed ordinance, along with a three-page cover letter from SPD Chief Carmen Best criticizing the Council for passing the bill. she raises three major concerns:

First, by acting in haste, sidestepping obligations that are binding on the City under the Consent Decree for the development and implementation of policies in areas that remain under federal oversight, Council has placed SPD officers, foreseeably, in the Gordian knot of either violating city law, backsliding on their commitments under the Consent Decree, or simply abandoning legitimate law enforcement objectives and service to the community for lack of appropriate, and previously approved, tools. While as a pure matter of law our obligations under the Consent Decree take primacy over City code, I submit it is fundamentally unfair to put officers in the position where, in order to hold true to one set of obligations, they may foreseeably violate another.

Second, no one policy stands in a vacuum. SPD policies, especially those developed under the Consent Decree, are intended to be read, construed, and trained in conjunction with other sections. Banning the procurement, ownership, or use of less-lethal tools requires not only substantial revision of the crowd management policy (in form that, as the legislation itself acknowledges, may call upon on best practices not yet identified or developed) and training to that policy, but substantive deletions or revisions to other court-approved policies as well. By way of example, I have attached to this memo – as indicative of the work that will lie ahead – highlighted sections of the crowd management policy (14.090), the use of force policies, collectively (8.000-8.500), and the crisis intervention policy (16.110) that will need to be deconflicted with the legislation, should it become effective, yet revised in form that remains consistent with the foundational principles and core requirements of the Consent Decree. Particularly when we are facing the dire budget cuts that Council has signaled, our ability to dedicate significant time to such revisions, let alone the training that would be required, may for all intents and purposes be an impossibility.

Finally, it should be noted that the vast majority of uses of less-lethal tools are not in crowd management situations, but rather in the (fortunately) relatively few, but not unusual, volatile situations that officers may encounter (that SWAT, for example, may predictably encounter). Consistent with use of force training, officers often depend on the availability of these tools – much less frequently their actual use – to increase distance, affording greater opportunity to attempt to de-escalate volatile and dynamic situations, with the goal of encouraging voluntary compliance. Whereas the baton (an impact tool still authorized, but rarely used) allows for an effective distance of only three feet, for example, OC spray (now banned) allows for a distance of upwards of twelve feet, and the 40-mm launcher (also banned) allows for distance of upwards of 100 feet. Left only with the options of a baton, a Taser (effective distance of approximately 7-12 feet), and an officer’s body, the likelihood of greater injury – to both officer and subject in those (again) empirically rare but foreseeable situations where some level of force is necessary – should be patent and concerning. And the notion that, somehow, persons will not act in volatile or violent manner but for the response of police is, simply, naïve.

Best goes on to highlight the “untenable” position that SPD officers are now placed in: on June 26th, they will either be forced to violate a city law, or violate the Consent Decree. She closes with harsh words for the City Council and the state of politics in Seattle:

It is with no small twinge of sadness that those of us who have worked so hard over the past eight years to not only achieve, but sustain, compliance with all core requirements of the Consent Decree note the irony we now face: while SPD has done all it can to ensure through policy, training, and structural systems for review and accountability that the reforms achieved remain “baked in” to the Department’s DNA – such that like an egg, as the Monitor has analogized, they cannot, be unscrambled – it is Council action and budget narrative alone over the past few weeks that demonstrates how quickly reforms and progress lauded only weeks ago can be undone by legislation driven by politics and raw emotion. Wherever any of us find ourselves in future days, this should serve as a stark caution of how fragile a City’s commitment to police reform can be, even with the best efforts of the police behind it.

SCC Insight has requested comment from the City Council on today’s filing, and will update this article with any response received.

Back on June 4th, the City of Seattle withdrew its motion to terminate portions of the Consent Decree, after SPD’s violent response to protests made it clear that there was still much work to be done to rein in the department’s abuses. As things stand today, there is no fixed deadline for next steps; that withdrawal motion simply concluded by saying “The Parties intend to jointly apprise the Court of the status of this litigation at an appropriate time in the future.”  With today’s filing, Robart has more than enough cause to declare the city fully out of compliance with the Consent Decree. Though in the larger perspective it may not matter, since there is also plenty of evidence that the Consent Decree wasn’t getting the city where it needed to go. However, it leaves the city in a terrible position: desperately in need of a major re-imagining of its policing system, while still beholden to a Consent Decree it willingly entered into and a resulting set of policies and federal oversight and approval mechanisms that will be implicated in every step of the next chapter of Seattle’s police reform.



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