Recommendations on ‘less lethal” weapons highlight difficult policy tradeoffs for SPD in use of force and crowd control

On Friday, the three accountability bodies that watchdog the Seattle Police Department — the Office of Police Accountability (OPA), the Office of the Inspector General for Public Safety (OIG), and the Community Police Commission (CPC) — released their written recommendations on SPD’s use of so-called “less lethal” weapons such as tear gas and blast balls. Taken together, the reports make it clear why it’s so difficult to make policy around the use of these weapons for crowd control and other purposes.

 

It’s helpful to review some context for these reports. After violent protests and a violent response by SPD using “less lethal” crowd-control devices at the end of May and the beginning of June, on June 7th Mayor Durkan announced that she had asked the OPA, OIG and CPC, as well as other stakeholders, to conduct an expedited review of SPD’s crowd-control policies. Those three groups committed to delivering recommendations by the end of June. Then the City Council, under pressure from community activists, on June 15th passed an ordinance broadly prohibiting SPD’s purchase, ownership, rental, storage or use of “crowd control weapons,” and made its own request for the OPA, OIG and CPC to make recommendations:

Consistent with the advisory roles established in the Accountability Ordinance (Ord. 125315), subsection 3.29.030.B, the Office of the Inspector General for Public Safety, the Office of Police Accountability, and the Community Police Commission are each requested to make a formal recommendation to the City Council on whether the Seattle Police Department should be reauthorized to use less-lethal weapons for crowd dispersal purposes. The recommendation shall include: 1) suggested policy revisions to the Seattle Police Department manual for use of less-lethal weapons for the purpose of crowd dispersal; and 2) identification of a crowd dispersal authorization process that requires Executive approval and reflects best practices in policing to minimize harm to protesters. The recommendation shall be provided no later than August 15, 2020.

At the end of July, Judge James Robart blocked the Council’s ordinance because it violated the 2012 Consent Decree, both in the policy it enacted and in unilaterally changing SPD’s crowd control and use of force policies without following the process laid out in the Consent Decree. In his ruling, Robart specifically said that he was withholding judgment on the wisdom of the Council’s ordinance until after the OPA, OIG and CPC recommendations were released.

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The OPA, OIG and CPC make up the three-legged stool of the police accountability system, each with its own responsibilities:

• The OPA’s main function is to investigate complaints against SPD officers and recommend disciplinary action as appropriate.
• The OIG provides a final quality-check on OPA investigations, and looks at systemic issues with policing in Seattle.
• The CPC is the “community voice,” giving voice to residents’ experiences with SPD and especially the experiences of the communities most negatively impacted by biased policing and over-policing.

The three reports released on Friday provide different perspectives from the three groups, aligned with their main responsibilities: the OPA looks at SPD’s use of crowd-control weapons as reflected in the complaints and incident reports filed; the OIG looks at systemic issues with crowd control, “less lethal” weapons, and use of force, and compares SPD’s policies with other law enforcement agencies; and the CPC speaks to the impact that SPD’s use of “less lethal” weapons has had upon the people of Seattle and the effect on the community’s trust in the police department. It should not be a surprise that while there are many overlaps in their recommendations, there are also places where they disagree, and there are issues that are raised by only one or two of the three groups.

OPA report

OIG report

CPC report

The big issues addressed in the reports are:

• Use of “less lethal” weapons in non-crowd-control situations;
• Use of “less lethal” weapons in crowd control situations;
• Use of specific weapon types, including tear gas, blast balls, and 40mm projectile launchers;
• The Council’s ordinance broadly prohibiting the use of crowd control weapons;
• SPD’s crowd-control and use-of-force policies;
• (at the request of the Council) a crowd dispersal authorization process that requires executive approval.

Use of less-lethal weapons in non-crowd-control situations. While the impetus for the Council passing a ban on the class of “less lethal” weapons was (mis)uses for crowd control, the language of the ordinance bans them broadly, including in emergent situations such as a hostage scenario, an armed and barricaded suspect, a “suicide by cop,” or the gang unit serving a search warrant on a suspect’s residence. Both the OPA and OIG reports recommend that the Council re-authorize all less-lethal weapons — including tear gas — for trained police officers to use outside of crowd control. The CPC recommends re-authorization in that context except for tear gas and blast balls, “with strong policies and accountability mechanisms.” All three cite the importance of giving SPD tools for exigent circumstances when lives are at risk, outside of crowd-control situations..

Use of less-lethal weapons in crowd-control situations. This issue — perhaps the central one of the report — is the place where we most clearly see the different perspectives of the three organizations, though the OPA and OIG are largely in agreement if not always for exactly the same reason. The OPA recommends re-authorizing all of the less-lethal tools for crown control except for tear gas; it raised concerns that with the ban in place, the only tools short of firearms that SPD officers would have available are impact weapons such as batons. “The evidence on use of impact weapons suggests that this approach will be less safe for officers and demonstrators alike,” it said in its report. “It would also be contrary to the goals of the Consent Decree, which was imposed partly because SPD officers were overly reliant on batons and impact weapons.” However, it draws the line at CS gas , aka tear gas. “OPA agrees with the Council that the use of CS gas should be banned during demonstrations.”

The OIG report starts by drawing a line in the sand: “Use of force, including use of less lethal weapons, on peaceful protesters or other persons not engaged in acts of violence is not lawful.” It then frames its discussion of the use of less-lethal tools in terms of what should be allowed in order for SPD “to address protesters who are engaged in acts of violence, such as individuals who set occupied buildings on fire or injure others, including both protesters and police officers.” It goes on to recommend that re-authorizing less-lethal weapons in crowd-control situations is “the more prudent course of action to afford the widest range of options in addressing violence.” However, recognizing the large number of complaints and injuries in recent protests, it recommends that re-authorization should be accompanied by changes in policy and training to reduce their indiscriminate and inappropriate use — and sufficient time to re-train officers before the new policy takes effect. However, the OIG report raises concerns about three specific types of “less lethal” weapons:  tear gas, blast balls, and 40mm launchers: it specifically recommends against the use of tear gas during protests, and it recommends that officers be given more training as well as practice opportunities before being allowed to use blast balls and launchers (noting that while officers do receive training, they get almost no opportunity to practice).

The CPC, on the other hand, takes a very different position. It begins by noting that it has already — on multiple occasions — provided recommendations to SPD on the use of less lethal weapons, including urging them to stop using blast balls due to the high risk of serious injuries; SPD rejected those recommendations. It goes on to assert that the “less lethal weapons” are by their nature indiscriminate, not aimed at specific individuals, and that SPD has proven its own inability to use them appropriately during demonstrations, or to follow its own policies. According to the CPC, SPD uses less-lethal weapons liberally as “weapons of first resort.” “The community no longer trusts SPD’s discretion in using these weapons,” the report says. It supports the Council’s ban on the weapons within the context of crowd control, as it says that is “the only viable way at this time to ensure real harm is not continually done to people’s personal health, safety and civil rights.” As with the OIG, the CPC report also acknowledges that both policies and training will need to be revised, and it asked for the CPC to be involved in those processes.

SPD’s crowd-control and use-of-force polices. All three reports call for revisions to the crowd control and use of force policies. The CPC report calls for a “community-centered review” of the entire policy, noting in particular that while the CPC has argued for SPD’s policies to call for the “lowest level of force that is objectively reasonable and necessary,” the adopted policy says “reasonable, necessary and proportional.” Proportionality is a term broadly invoked in laws governing law enforcement agencies’ use of force — which makes it customary, though perhaps not necessarily correct.

The OPA report also raises several issues with SPD’s crowd-management policy that need to be reviewed and addressed. Among them:

• Incident commanders don’t create detailed plans prior to deploying officers at demonstrations. The Incident Action Plans (IAPs), the report claims, are too general and vague to be useful to guide officers’ behavior, often copied-and-pasted from one day to the next. It argues that the IAPs should details under what circumstances they will order a crowd to disperse; how the dispersal order will be given; who gives the dispersal order; in what direction the crowd will be moved; where officers will be positioned relative to the crowd; and the justification for these decisions.  The OPA report also argues that having that kind of detailed IAP will make it easier to investigate complaints, as it will document the specific instructions that were given to officers before deploying.
• Accountability for the use of force isn’t driven upward through the chain of command.
• Whether officers should be allowed to use less-lethal tools during demonstrations solely to prevent property destruction (versus protecting the lives and safety of individuals) is an important policy consideration that the City Council should deliberate upon.
• The rules for demonstrations that are in response to law enforcement may need to be handled differently, because of the inherent tendency toward confrontation and escalation.
• SPD should have portable public address systems that it can use to communicate with a crowd, and orders to disperse must be broadcast to the crowd with sufficient time allowed for the crowd to disperse before less lethal weapons are used.
• SPD should further explore the feasibility of tactics that allow officers to make targeted arrests of people within a crowd who are engaging in criminal activity. This is challenging, as in many cases those individuals are intentionally using the crowd as cover, and reaching them would involve officers entering the crowd.

The OIG report raises some of the same issues, as well as some unique ones:

• The report asserts that while SPD’s crowd-management policy is consistent with other jurisdictions and SPD conducted training consistent with its policy, the policy itself “lacks specificity in addressing varying crowd dynamics.”
• It notes that while SPD’s policy distinguishes between an incident commander’s formal order to disperse a crowd and individual officers’ discretion to use force to address specific acts, protesters are often unable to distinguish between the two. It cites crowd psychology literature saying that “if protesters do not understand why police are using force, they are likely to view the force as illegitimate and the police as an unreasonable, violent entity stifling First Amendment expression” and may then respond by becoming increasingly confrontational, police then responding to a perception of increased crowd violence, and ultimately a “toxic cycle of escalation.”
• SPD’s policy does not specify the minimum time to be given to a crowd to disperse before less-lethal force is used. The report notes that this is likely to allow for an immediate response in the case of life-safety emergencies, but absent that context it is deeply problematic.
• Similar to the OPA report, the OIG recommends that SPD have a mobile public-address unit that can be used to communicate with crowds — including potentially outfitted with electronic signs as are used for traffic revisions. Also, the policy should be enhanced to require more communication with a crowd, especially during large or stationary protests.
• SPD’s policy only recognizes two states for a crowd: “lawful” and “unlawful.” “In a very general sense, protesters are allowed to assemble, until they are not… This creates the risk of varying interpretations by SPD personnel and affords a considerable degree of latitude to [incident commanders],” the report says, and makes it difficult for members of the public to predict how SPD will respond to a given crowd. OIG recommends that SPD should follow the example of the Los Angeles police Department and develop a more nuanced matrix of crowd dynamics, including recognizing that there could be isolated unlawful behavior within a mostly-lawful crowd, so that crowd-management tactics can be developed (and trained on) for each.
• The training that SPD officers receive is consistent with the policy, but “does not afford sufficient practice time with less-lethal weapons. OIG reviewed training records and found that all officers deploying less-lethal weapons during the protests had received the required training, as had supervisors and incident commanders. However, “OIG identified that there are limited opportunities for officers to gain proficiency and expertise with practice in using these weapons. Practice munitions are not available to officers for the 40mm launcher outside of annual qualification requirements, and officers may not have an opportunity to deploy live blast balls during annual retraining depending on supply.” SPD personnel told OIG that department budget was the limiting factor.
• The report found that SPD’s crowd-management tactics are designed for mobile crowds, not “large, volatile, stationary crowds, or individual instigators using the cover of large crowds to engage in violence” — such as the nightly protests at the East Precinct. One of the core tactics employed that doesn’t stand up to scrutiny is the use of fixed “riot lines,” which both lack flexibility in de-escalating crowds, and create the appearance and nature of a “hard line” that could incite a crowd to be more antagonistic towards the police. This is a problem that is already well-known by SPD. “Once officers and crowds are fixed in place,” the report cites from SPD’s own documents on crowd management, “officers and demonstrators are often faced with individual confrontations at close range; literally face-to-face or arms-length away from each other. These confrontations, at these distances, carry a high degree of risk to both sides and have a high potential for physical confrontation due to the perception of danger by each side. However, SPD has not yet developed tactics for dealing with large, stationary, volatile crowds (as we all know only too well now). It’s recognized that SPD’s recent development of mobile-bike officers are not effective against large, static crowds. The standard crowd-management technique that SPD uses — moving the crowd — was particularly ineffective in defending the East Precinct because of its architecture: it lacks a plaza or other place to place barriers without blocking the street and thus preventing the crowd from moving. The OIG report recommends that SPD develop complete plans and tactics for managing stationary protests.
• Mutual-aid agreements are problematic. Here SPD is caught in a bind: when it calls upon officers from other law-enforcement agencies to assist with crowd-control, it cannot force them to follow SPD policies (just as SPD officers aren’t bound to other jurisdictions’ policies when rendering aid to them outside of Seattle). Even getting other jurisdictions to provide documentation of their own use of force when providing aid to SPD is difficult; the OIG is still waiting for reports from the agencies that helped SPD in June and July. But at the same time, SPD is simply not staffed to cover large protests on its own, and particularly day after day for an extended period.
• The OIG raised the same issue as the OPA that SPD does not give detailed tactical information in its IAPs (purportedly to protect it from being included in public records requests). But it also does not formally document the tactical briefings delivered to officers before deployment to events such as protests. According to the OIG report, SPD policy requires this information to be delivered to officers at roll call and other briefings, but was told by SPD personnel “that briefings did not always occur, and that some briefings were not detailed enough to properly inform officers as to new objectives and situational changes.” Without the briefing materials being preserved, the department, OPA, OIG and CPC can’t determine if officers had “appropriate and useful information to inform decision-making in the field.”
• The OIG report encourages SPD to conduct debriefing exercises with the public and SPD officers to explain its actions during protest events, as a means to begin to restore trust in the police.
• The report also suggests that there is unfinished business in addressing the hostility and violence directed at SPD officers:
  “It is equally apparent that personnel interviewed by OIG were unprepared and shocked at the perceived level of hostility and violence leveled at them by the public.23 It is possible for the City to address the harm created by the institution of policing while also acknowledging concern for injuries and trauma inflicted on individual officers. At a minimum pragmatic level, officers with unresolved trauma and related mental health concerns may be more likely to react to future demonstrations and events in an unwanted manner. On a more philosophical level, SPD officers are employees of the City and should be afforded the same concern for their mental and physical health as the City expresses for its non-sworn personnel. Per personnel, SPD has not conducted debriefing exercises with officers concerning the recent protests, or otherwise provided wellness resources other than an app listing mental health providers.”
• The report suggests that SPD does itself a disservice by using overly technical language in trying to communicate with the public:
  “Language such as “improvised explosives” has a specific military connotation for members of the public, and SPD may consider using more accessible language in its communications. While it may be technically correct, using such terms and then including photos of items that do not meet public expectations – such as broken candle – do not enhance department credibility. Personnel shared with OIG that the concern was not actually about the candle-as-bomb, but rather that individuals were throwing accelerants on officers and then throwing incendiary devices. In other words, the actual concern was that protestors were attempting to light officers on fire. Using more direct language such as “officers were injured because individuals attempted to set them on fire” affords an opportunity to build greater legitimacy than describing a candle using a term the public associates with a bomb.”

“Executive approval” for crowd dispersal.  The Council requested that the three agencies provide recommendations on a policy that would require executive approval (presumably from the Mayor’s Office, or perhaps the Chief of Police) for ordering a crowd to disperse. While the CPC does not discuss this question it its report, both the OPA and OIG come out against the idea, with the OPA report calling it “both impractical and legally problematic,” and the OIG report saying that it raises concerns with timing, expertise and availability of information. The OPA report says:

SPD incident commanders make the decision about whether to disperse a crowd based on conditions they are monitoring in real time, either through in-person observation or via police radio. They do so at all hours of the day and night, in a city that has approximately 300 demonstrations every year. SPD is able to ensure a commander is always available to monitor a demonstration because it employs dozens of captains and lieutenants who take on that responsibility. Requiring that the Mayor or a member of her civilian staff also monitor every demonstration would be overly burdensome and impractical. It would likely require that the Mayor hire new, full-time civilian staff solely to monitor demonstrations across the city.

The existence of such a process would also run counter to the Seattle City Charter, which explicitly delegates responsibility for the management and supervision of SPD to the Chief. “The Chief of Police shall manage the Police Department, and shall prescribe rules and regulations,
consistent with law, for its government and control.” The Chief must still answer to the Mayor for the manner in which the department is run, but OPA believes that the structure of the Charter clearly places responsibility for the day-to-day operations of the police department with the Chief of Police.

The OIG report adds:

Sufficient time to seek executive approval may not exist for all crowd situations that shift from lawful to unlawful. Often, crowd dynamics are fast-moving and police may need to act quickly to address an act of violence or a life safety issue. Executive decision-makers will also generally lack tactical expertise, as well as access to sufficient on-the-ground information that ICs have, putting the Executive’s decision-making at a disadvantage. Compounding that disadvantage, the Executive’s source of information would likely be the police, so Executive authorization does not provide a truly independent source to evaluate the necessity of a dispersal order. This makes it less likely that the Executive would have a separate basis upon which to disagree with a police recommendation to issue a dispersal order. These factors may explain why in research of other jurisdictions’ crowd management policies,24 OIG did not find any that give crowd dispersal authority to decision-makers external to the department in exigent circumstances.

 

Other concerns raised by the CPC.  The CPC raised three other concerns in its report worth mentioning:

• It recommends that SPD improve its standards for declaring riots, unlawful assemblies, and curfews, arguing that the current standard is too low given the use of force that usually follows the declaration of riots and unlawful assemblies, and the potential for curfews to curtail free speech rights:
  “First Amendment demonstrations are fundamental to the healthy functioning of our democracy. Seattle particularly has a rich history when it comes to social justice movements and protesting. Police and elected official’s authority to end lawful protections for free speech should meet high standards. Unfortunately in Seattle, state and local law do not provide for that. Under current policy, SPD incident commanders are authorized to disperse protests with force, “upon determining that there are acts or conduct within a group of four or more persons that create a substantial risk of causing injury to any person or substantial harm to property. Washington State law only requires three people to be present.”There were also constitutionally questionable directives from the Mayor’s Office during the protests. During large protests on May 30, Mayor Durkan issued a citywide curfew starting at 5 pm. Troublingly, that news was not made public until just minutes before the curfew went into effect. Mayor Durkan tweeted at the time, “I will soon be signing an emergency order and the City of Seattle will be imposing a 5 pm curfew soon.” That was at 4:46 pm. Indeed, many protesters reported not receiving the emergency notification on their phones until after the curfew went into effect, making the order impossible to comply with.Mayor Durkan issued that citywide curfew despite her acknowledgement that “most of the protests were peaceful” and reports of violence and destruction were “isolated.” The Mayor then left that curfew in place for days, despite there being no further reports of significant violence or destruction. That action effectively made First Amendment demonstrations illegal during key hours of a mass movement.”
• In a similar vein, the CPC calls for SPD to properly document its reasons for ordering a crowd to disperse, saying, “During demonstrations, SPD’s incident commanders determine if and when the event meets the criteria necessary to qualify for an order to disperse or be declared a riot. However, other than selective posts on the SPD’s website, the reasons that cause incident commanders to take such drastic action are not publicized.“
• Finally, the CPC recommends a review of how SPD decides which free-speech demonstrations to police, given that it only shows up to about 80 of the 300 annual protests in a typical year:
  “However, in recent months, the Department has attended a majority of demonstrations that are specifically rallying against police violence and brutality. Moreover, SPD’s presence during protests was perceived by community as an intimidation tactic with a looming sense of threatening force, which was actualized.
  
  The unsettling nature of SPD’s presence during recent demonstrations is underlined by the way in which officers attended and presented – in riot gear, by the hundreds. It is unclear what intelligence was gathered by the Department to warrant such a response to planned peaceful protests, largely led by young people.”

 

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With the reports now published, attention returns to the DOJ, Judge Robart, and the Consent Decree. The Council’s ordinance banning “less lethal” weapons clearly runs contrary to these recommendations, and is not severable in a way that would allow Robart to leave part of it in place, for example as it applies to crowd-control situations but not other police responses. Robart can’t rewrite the ordinance; he can only uphold it or strike it down, and the DOJ is likely to ask him to strike it down.

The Council might get there first though, now that the police accountability bodies have made their thoughts known. The low-hanging fruit for them will be banning tear gas for crowd-control purposes, and re-authorizing the less-lethal devices in some form for situations other than crowd control. Many of the Council members will no doubt want to go farther than that, but with conflicting views among the accountability organizations it may have difficulty deciding where to draw the line. In addition, having recently been admonished by the DOJ and Judge Robart, they will likely take a more careful approach and attempt to follow the process outlined in the Consent Decree that requires the review of the DOJ and police monitor and approval of the court before any change goes into effect. However, it is worth nothing that even after being warned by Judge Robart about its obligations under the Consent Decree, the Council’s recent cuts to SPD’s budget didn’t adhere to the mandated process and flouted some terms of the Consent Decree (such as the requirement for implicit bias training). So it’s entirely possible that the Council will once again assert its independent streak.

But beyond the Council, it’s clearly back to the drawing board for SPD and the DOJ with regard to the department’s crowd-control and use-of-force policies. While technically the department may not be out of compliance with the existing, court-approved policies, they won’t be sufficient moving forward and will need heavy revision, and it’s very unlikely that Judge Robart will let the Consent Decree terminate without new policies in place and the department demonstrating that it has come into compliance with them. On the bright side, this might be a path forward to eventually (as in 3+ years from now) ending the Consent Decree. But there is much hard work between here and there.

The next official move is the DOJ’s, as it must decide by August 27th whether to ask Robart for a preliminary injunction on the Council’s ordinance.

 

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