Earlier this evening, the Department of Justice filed a motion for a temporary restraining order to prevent the Seattle Police Department from implementing the City Council’s ban on crowd-control weapons. This follows Judge James Robart’s refusal earlier this week to prevent the ordinance from taking effect this weekend.
UPDATE: in a hearing this evening, Judge Robart indicated that he will be granting the DOJ’s request, enjoining implementation of the Council’s ordinance, and rolling the status quo back to the order that Judge Richard Jones made on June 12.
UPDATE 2: here is the temporary restraining order.
UPDATE 3: added Mayor Durkan’s statement on the ruling (below).
To recap the events of earlier this week, the details of which are important to understand what just happened: the City Attorney’s Office, on behalf of the city, filed a notice with the court as to the new ordinance, and also informed the court that the DOJ considers it a violation of the Consent Decree because it was not consulted and the court had not approved it. The City Attorney and SPD asked Judge Robart to enjoin the Council’s ordinance from going into effect. Robart responded by saying “What you are asking for is a temporary restraining order, and you have not demonstrated that you meet any of the four requirements for one. So your request is denied, but you can refile it if you so choose.”
Yesterday, SPD Chief Carmen Best sent a directive out to all of SPD explaining how the Council’s ban would be implemented. Her directive says that as of 3:00am on Saturday, officers are no longer authorized to deploy into the field with OC spray. Further, as of midnight Saturday/Sunday, blast balls, tear gas, and launchers are no longer authorized. Finally it notes that the only two legally available crowd-control tools left are batons and tasers, and it orders that all officers who have been issued tasers are required to deploy with them. All officers are required under existing policy to carry with them at least one “less lethal” tool in addition to their gun.
The DOJ’s motion this evening requests a temporary restraining order (TRO) preventing SPD from implementing Chief Best’s directive. There is some legal threading of the needle here; while the DOJ asserts that the ordinance is in conflict with existing court-approved policies for crowd control and use of force, it is the implementation of an update to SPD’s policy, in alignment with the ordinance, that is technically the violation of the Consent Decree. So the motion does not ask for any changes to the ordinance or for Judge Robart to suspend or vacate it; rather, it focuses on stopping SPD from implementing it.
There are four requirements that must be met to be granted a TRO. The plaintiff must establish that:
- they are likely to succeed on the merits of the case;
- they they are likely to suffer irreparable harm in the absence of the TRO;
- the balance of equities tips in their favor; and
- the TRO is in the public interest.
There is, however, an alternate test that the courts may employ: if a plaintiff can show that there are “serious questions going to the merits,” a lower standard than “likely to succeed,” and “the balance of hardships tips sharply in the plaintiff’s favor.”
There is little doubt that immediate implementation of the ordinance violates the Consent Decree; it is very clear on the requirement for the DOJ and police monitor to review changes to policy, and for the court to approve them, before they go into effect — and that has not happened here. So the central issue is where the balance of hardships lie. The Council passed its ban on crowd-control weapons with the intent to protect protesters from abuse at the hands of the police. But the DOJ attempts to cast a wider perspective on the crowd-control and use-of-force policies: that they were intended to mandate a “less lethal” step down from SPD’s lethal use of force:
Under the Consent Decree, the City of Seattle agreed to abide by a series of principles intended to govern all use of force issues, including changes to policy, training, supervision, and the like. The first of which, is that “[o]fficers’ actions should increase public safety, be effective and constitutional, and embrace principles of procedural justice.” See (Dkt. 3-1) at ¶ 69. The second of which is the principle that all uses of force will be consistent with Graham v. Connor (i.e. reasonable under the circumstances) and “[o]fficers should use de-escalation techniques, when appropriate and feasible, in order to reduce the need for force.” Id. at ¶ 70. Further, the City agreed to the governing idea stated in the introduction to the Consent Decree that policing must be delivered to the people of Seattle in a manner that ensures both public and officer safety. Id. at 5. The Parties drafted and revised all Consent Decree-related policies, including use of force and crowd management, with these principles and goals in mind. The Directive that is set to take effect tomorrow will run directly contrary to these principles and requirements.
The DOJ goes on to argue that banning less-lethal weapons does not increase public safety. Just the opposite, it argues: rather than prevent excessive force, it may cause it by eliminating other options:
To begin with, it is likely that removing nearly all forms of less lethal implements from all police encounters will not “increase[s] public safety” nor provide the means for SPD officers to abide by the de-escalation mandate. Indeed, while City Council may have intended the ban on these less lethal implements to prevent the use of excessive force, the Directive – which removes them without providing training or alternative mechanisms to de-escalate and resolve the dangerous situations officers routinely find themselves – may cause it. Removing force options means officers will lack other options to choose from in moderating their force to the threat presented and will, therein, increase the likelihood of use of hands-on force (punches, kicks, etc.), batons, and potentially deadly force. As stated by Chief Best: “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.”
It then raises the spectre of the protests this weekend, and the expectation of violence:
These risks are not just hypothetical with respect to force encounters that may or may not occur at some future date. Rather, the City of Seattle is anticipating significant and potentially dangerous protests this weekend, at the very same time that these changes to SPD’s policies (and therein, tactics and decision-making) are being rolled out.
It cites a letter sent yesterday by Chief Best to the City Council complaining about the effect of the ordinance and the dangers she believes that it creates this weekend.
“This weekend we know that several events are planned across the city that will foreseeably involve many of the same violent actors from recent days. There is no reason not to assume we will continue to experience property destruction, arson, looting, and attempts to injure additional officers throughout the weekend and beyond.
With this Council ordinance, we hear loudly and clearly that the use of these less-lethal tools by SPD officers to disperse crowds that have turned violent have been completely banned by City Council.
Under these circumstances, as created by Council, we cannot manage demonstrations as we have in the past. If I am not allowed to lawfully equip officers with the tools they have been trained to use to protect the community and themselves, it would be reckless to have them confront this level of violence under the current legal restrictions imposed by Council.”
The DOJ sums up its case:
The Chief of Police has therefore made clear that this Directive (implementing the Ordinance) will result in changes to SPD procedures such that will increase the danger to either the public or officers. This is a clear conflict with the Consent Decree and, thus, the United States is likely to succeed on the merits in challenging their adoption. At the very least, this impact raises serious questions about the City’s compliance with the terms of the Consent Decree related to use of force principles. For the exact same reasons already discussed, implementation of the Directive also creates a likelihood of irreparable harm to the public.
As with the police accountability ordinance, once again SPD and the DOJ find themselves on the same side, with the City Council taking a contrary position.
Judge Robart has ordered a hearing for 8pm tonight. SCC Insight will update this story later this evening.
UPDATED 9:00pm: Judge Robart indicated that he is granting the DOJ’s motion. He will enjoin implementation of the Council’s ordinance and roll the status quo back to the order that Judge Richard Jones made on June 12, which placed restrictions on SPD’s use of crowd control devices but also allowed for specific circumstances under which they may still be used.
Robart said that his TRO will be “very temporary,” in that he still wants to see through the process that he directed in his order earlier this week: the OPA, OIG and CPC will file briefs with the Court by August 15th, with the city and the DOJ filing responses by August 22. He will then decide what to do about the conflicting policies.
Robart noted that he had had “extensive conversations” with Judge Jones, and had carefully reviewed all of the evidence that had been submitted in that case. He said that the key question for him in deciding this matter was whether the problem was with the crowd-control and use-of-force policies, or with the police officers’ conduct under that policy. In the end, he decided that he agreed with Judge Jones: the problem at the moment is with the officers’ conduct — though the purpose of hearing more form the stakeholders is to understand whether there are indeed issues with the policies that need to be addressed as well.
Robart said that he does not believe that the City Council has the authority to say “we don’t like one of the regulations” and unilaterally rewrite it, but instead they can raise their concerns and he will consider them along with the views of the other parties in the case.
He also had specific thoughts about the history of the policies as they related to some of the weapons in question. “I can’t tell you if blast balls are a good idea, but many years ago I approved them,” he said. He also noted that the policies say nothing about tear gas, and it had not been used during the term of the consent decree; he seemed to be satisfied that Chief Best clarified the policy once it became an issue — though leaving open the possibility (or perhaps likelihood) that it will be addressed in a future update to the policies.
City Attorney Pete Holmes, and one of his staff attorneys, had some cringe-worthy moments during the hearing, leading from their flip in position on the need for an injunction. Last week they argued (poorly) for an injunction on behalf of SPD and the Mayor, while the City Council had not weighed in other than by passing the ordinance. But Holmes acknowledged that he is required to defend legally-enacted ordinances against all challenges, and since the DOJ had filed a challenge to the Council’s ordinance, he is now required to flip his earlier position and oppose the DOJ’s request for an injunction. Robart was incredulous that in his view the city had reversed its position, accused Holmes of wanting “political cover,” and abruptly stopped listening to him — though his did acknowledge that Holmes was in court representing multiple stakeholders with conflicting positions.
Robart will issue a written ruling later tonight or early tomorrow morning.
Here is Robart’s temporary restraining order, as issued. It expires in 14 days. Meanwhile, the parties are ordered to confer and propose a schedule for briefing on a preliminary injunction by August 1. Some key quotes:
- “procedurally, as discussed above, the Government, the Monitor, and the court are entitled to review “the policies, procedures, training curricula, and training manuals required to be written, revised, or maintained” by the Consent Decree before implementation by SPD. If the court allows SPD to implement the CCW Ordinance and the Directive without first complying with the procedural protections in the Consent Decree, that procedural harm cannot be undone. These substantive and procedural harms are particularly acute here given that the City has reason to believe that protests and public demonstrations in Seattle may occur shortly after the Directive and the Ordinance go into effect.”
- “Further, the Government is not arguing that the CCW Ordinance may never be implemented. The Government merely seeks a pause until such time as the Chief Best’s Directive, and the underlying CCW Ordinance, can be reviewed pursuant to the terms of the Consent Decree.”
- “The court recognizes that preservation of the status quo does not ensure that SPD will refrain from using crowd control tactics that result in deprivations of constitutional rights. See Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t, No. C20-0887RAJ, 2020 WL 3128299, at *4 (W.D. Wash. June 12, 2020) (finding that the SPD’s use of force in response to recent protests likely violated the Fourth Amendment). However, the procedural and substantive provisions in the Consent Decree are in place to provide the court with mechanisms to monitor SPD’s practices and to work in hand with the parties to determine the most effective police practices for SPD. It is not in the public’s interest to eschew the protections that the parties and the court have spent nearly a decade fashioning the moment SPD engages in potentially unconstitutional practices. Instead, the court concludes that the public interest weighs in favor of preserving the status quo under the Consent Decree by reviewing SPD’s recent practices and the City’s recent crowd control proposals with input from all the appropriate stakeholders before determining the correct path forward under the terms of the Consent Decree.”
- “Having concluded that the Government has met the standard for issuing a TRO, the court GRANTS the Government’s motion (Dkt. # 627) and issues a TRO against implementation of Chief Best’s Directive. The court further concludes that it would cause confusion not only for SPD officers, but also the public, if the court were to enjoin Chief Best’s Directive while leaving the CCW Ordinance in place. Accordingly, the court’s TRO will also enjoin the effective date of the CCW Ordinance. The court does not enjoin the CCW Ordinance itself, but rather enjoins only the Ordinance’s implementation date until such time as the procedures the City agreed to follow in the Consent Decree concerning SPD use of force and crowd control policies are followed.”
- “Finally, the court notes that nothing in this order is contrary to the preliminary injunction that the Honorable Richard A. Jones issued in Black Lives Matter Seattle-King County, et al., v. City of Seattle, No. C20-0887RAJ (W.D. Wash.), Dkt. # 42. Judge Jones’ preliminary injunction is the current status quo and remains in effect.”
UPDATE 7/25 9am: Here is Mayor Durkan’s statement on Judge Robart’s ruling:
Judge Robart’s ruling allows for proposed changes to SPD’s crowd management policies, procedures, and training to be done after review and input by the three independent oversight bodies (the OPA, OIG and CPC) and the federal monitor. Mayor Durkan requested this review before the Council’s legislation was introduced. Both Mayor Durkan and Chief Best support Judge Jones’ order, which remains in place and will continue to be followed by SPD. Seattle Police officers will proceed under these established policies and training during this very challenging time.
The Mayor believes changes do need to be made to SPD’s crowd management practices, policies and training. As the Mayor has stated, she believed that SPD’s actions during some of the protest activities did not reflect the court approved policies requiring de-escalation and proportionate force. She also wholeheartedly supported Chief Best’s decision to issue one of the first in the nation bans on the use of tear gas.
As U.S. Attorney, the Mayor lead the investigation of SPD and signed the Consent Decree. This led to a Court monitored process that made systematic changes to SPD’s Use of Force policies, training, and oversight. The Mayor declined to sign the Council Bill because she believed it could conflict with the requirements under the Consent Decree. City Council’s legislation imposed changes to the court approved policies before an appropriate review could be done, which is why the Mayor and Chief raised these concerns with the Court in the notice previously filed by the City.
As the Mayor has said, she has significant concerns about the use of force and accountability from federal forces, and she strongly supports efforts to impose restrictions from Judge Jones’ order on any federal law enforcement, should that become necessary. This morning, she met with City Attorney Pete Holmes, County Executive Dow Constantine and KC Prosecutor Dan Satterberg to discuss potential legal action.
UPDATE 7/25 10am: and here is SPD Chief Best’s statement:
I wanted to update you that early this morning, the federal judge overseeing the Consent Decree issued an temporary order halting the implementation of City Council’s recently passed legislation that banned SPD from using less-lethal crowd management tools that had previously been approved by the Court, including blast balls and pepper spray. By staying the immediate implementation of the legislation, the Court Order provides SPD opportunity to meet procedural requirements of the Consent Decree that govern revisions to policy and training.
SPD stands ready to continue its work with the DOJ, the Monitor, OPA, the OIG, the CPC, and members of the community at large to take the next steps towards re-envisioning how policing is done in Seattle. The events over the past two months have been transformative both locally and nationally, and offer a monumental opportunity to build on the work of the past eight years to ensure the continued momentum of reform.
In the spirit of offering trust and full transparency, I want to advise you that SPD officers will be carrying pepper spray and blast balls today, as would be typical for events that carry potential to include violence. This is consistent with existing policy and the Court’s order of early this morning. SPD promises the community that we will not deploy CS (tear) gas.
The Seattle Police Department hears the community’s message and stands ready to partner in moving forward. I implore all of you to remain peaceful and to encourage the peace of others.
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