Judge Robart leaves Council’s ban on crowd-control weapons in place, for now

In a nine-page ruling this afternoon, U.S. District Court Judge James Robart declined to stop the City Council’s ban on crowd-control weapons from going into effect later this week — at least for the moment. Robart did acknowledge that the ordinance will need to be reconciled with SPD’s court-approved policies on crowd control and use of force, but at the urging of the Office of Police Accountability and Office of the Inspector General he will wait until they provide their recommendations next month before wading into that issue.


Last week the city submitted a notice to the court about the passage of the Council’s ordinance banning most crowd-control weapons, many of which were explicitly approved for use in the court-approved policies as “less lethal” alternatives to guns or other lethal forms of force. In that notice, the city noted that the ordinance was scheduled to go into effect on July 26 and would put SPD officers in the awkward position of choosing whether to follow the court-approved policies or the new ordinance. Mayor Durkan and Chief Best requested that Judge Robart enjoin the ordinance from going into effect until the DOJ and court monitor could review it, as required under the Consent Decree.

Robart chose to interpret that request as a motion for a preliminary injunction or a temporary restraining order (TRO), which are granted only in extraordinary circumstances to suspend an action until full legal proceedings can reach a conclusion. The criteria for a judge to grant a TRO are well defined; the party requesting it must establish:

  • that they are likely to succeed on the merits of their case;
  • that they are likely to suffer irreparable harm in the absence of preliminary relief;
  • that the balance of equities tips in their favor; and
  • that granting the TRO is in the public interest.

Robart found that the Mayor and Chief Best had not made the case for any of these points. Their argument had simply been that the ordinance violated the consent decree by imposing policy changes without going through the process specified in the Consent Decree. But Robart found fault with that too, pointing out that Chief Best had issued her own 30-day suspension on the use of tear gas without DOJ review or notifying the court, and more recently Robart’s colleague Judge Jones issued a TRO prohibiting many of the same crowd-control weapons — and that the city stipulated to an identical preliminary injunction — all without review by the DOJ or Robart.

Neither SPD nor the Mayor have made the required showing for the court to impose such extraordinary relief. Although in her June 29, 2020, letter sending the new ordinance back to the City Council unsigned, Mayor Durkan expressed concern that the CCW Ordinance may conflict with court orders under the Consent Decree1 (see Notice at 3; see also id., Ex. 3 (attaching the 6/29/20 Durkan letter)), such concerns are a far cry from establishing “a likelihood of success on the merits” or even “serious questions going to the merits” of the claim. Feldman, 843 F.3d at 375. Indeed, the City’s notice makes no attempt to even identify the specific provisions of the Consent Decree that the CCW Ordinance may implicate. (See generally Notice.) Nevertheless, the City argues that the new ordinance will require changes to SPD policies that the court previously approved and that the Monitor and Plaintiff United States of America (“the Government”) have taken the position that the Consent Decree prohibits SPD from implementing changes to the policies the Consent Decree governs until after the court has had an opportunity to review and approve those changes. (See id. at 3-4.) Yet, the City admits that the Consent Decree is silent about what should happen when the City Council passes legislation requiring SPD to change its practices to address complaints about alleged police misconduct, as is the case with the CCW Ordinance. (See id. at 4-5.)

The court also notes that other restrictions on SPD’s use of crowd control weapons have been recently imposed without eliciting the same reaction from the City or the Government concerning any conflict with the Consent Decree. For example, on June 12, 2020, the Honorable Richard A. Jones issued a TRO limiting SPD’s use of chemical irritants and projectiles against individuals engaged in peaceful protests or demonstrations in Seattle. (See Black Lives Matter Seattle-King County, et al., v. City of Seattle, No. C20-0887RAJ (W.D. Wash.), Dkt. # 34.) Moreover, on June 17, 2020, the City stipulated to the entry of preliminary injunction also limiting SPD’s use of chemical irritants and projectiles in the same matter. (Id., Dkt. # 41.) Judge Jones granted the parties’ stipulation and entered a preliminary injunction on the same day. (Id., Dkt. # 42 (“Judge Jones PI”).) Judge Jones’s preliminary injunction does not expire until September 30, 2020.2 (Id. at 3.) Further, on June 5, 2020, Seattle Police Chief Carmen Best issued her own suspension of SPD’s use of CS gas for at least 30 days. (Notice Ex. 6 (Dkt. # 625-3) at 2 (“As you know, earlier today Chief Best announced that [SPD] is suspending the use of CS gas for at least thirty (30) days or longer . . . .”).) Although the City Council’s new ordinance may go further than either Judge Jones’s order or Chief Best’s suspension, neither of these other actions provoked the City or the Government to notify the court of any potential inconsistency with the Consent Decree or the need to impose injunctive relief. Accordingly, the court concludes that neither SPD nor the Mayor have established either a likelihood of success on the merits or even serious questions going to the merits of the claim.

Robart denied the request for a TRO; however he did it “without prejudice,” which allows the city to try again. It might do so, now that it knows the standard that Robart would apply to such a motion.

In the meantime, Robart recognized that the conflict between the ordinance and the court-approved policies does indeed exist and that he will ultimately need to resolve it. To that end, he embraced the request from the OPA and OIG to allow them to finish their analysis and recommendations on crowd-control weapons, which they have promised to deliver by August 15th, before he rules.

Robart ordered three things:

  1. The city must submit a copy of the OPA and OIG report on crowd-control weapons no later than August 15.
  2. The city and the DOJ must submit briefs by August 22, “analyzing the interaction of the CCW Ordinance with the Consent Decree, as well as with any policies that the Consent Decree governs.” The briefs must also respond to the OPA/OIG report.
  3. The CPC may (but is not required to) submit their own analysis of the crowd-control weapons ordinance, its interaction with the Consent Decree and SPD’s approved policies, and the OPA/OIG report, by August 22.

In the meantime, the Council’s ban on crowd-control weapons will still go into effect on July 26.

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