Council discusses crowd-control weapons with CPC, OPA, OIG

Friday morning the City Council’s public safety committee met with leaders of the city’s three police-accountability organizations to discuss their recommendations on SPD’s use of crowd-control weapons, in a follow-up to their written reports from three weeks ago.

 

The Council must decide soon how to respond to Judge James Robart’s injunction, which blocked implementation of its June ordinance broadly banning so-called “less lethal” weapons including tear gas, pepper spray, and “blast balls.” Robart issued his injunction pending the reports on crowd-control weapons use from the Community Police Commission, the Office of Police Accountability, and the Office of the Inspector General for Public Safety.  On Thursday the city asked Robart for a three-week extension on the timeline for written responses to those reports, saying, “The City requests additional time because the parties are in the midst of negotiations that may change the nature of the briefing and would benefit from additional time to resolve those issues.” The City Attorney’s Office declined to elaborate on the nature of those negotiations, though Council member Lisa Herbold, the chair of the public safety committee, said in an email, “how the Council will respond to the recommendations in these reports is still a matter of deliberation of the Council.”

Robart granted the three-week extension. Since the City Council has staked out a different position than the Mayor and SPD on the crowd-control weapons ban, it is now being represented by its own attorneys with regard to this issue and will communicate its own position to Judge Robart. However, any modification to the current rules for crowd-control weapons must be run by the DOJ and court-appointed police monitor first, and ultimately must be approved by Judge Robart — thus the “negotiations” mentioned in the City’s request for an extension.

In Friday’s committee meeting the representatives from the three accountability groups presented the key findings from their written reports, which I previously summarized. You can watch the meeting here, and view their slides here:  OPA, OIG, CPC. Also, the council’s staff has prepared a matrix of the three groups’ recommendations on specific crowd-control weapons for crowd-control, patrol officers, and SWAT teams. But there were several topics worthy of note where the discussion went beyond or expanded on the reports:

Executive approval for crowd-control actions.  One of the questions that the Council had previously teed up for the groups’ reports was to recommend “a crowd dispersal process that requires executive approval.” In Friday’s discussion, it became clear that the Council’s request was vague and had been interpreted differently by the CPC on one hand and the OPA and OIG on the other. The OPA and OIG thought that the Council was asking about whether use of crowd-control weapons should require authorization from the Mayor’s Office, and they balked at that because of issues around timeliness, lack of expertise, and the introduction of politics into public-safety decision-making on the ground.  But the CPC took a higher-level view, interpreting it instead as a question of whether declaring an “unlawful assembly” or riot should require the Mayor’s Office (or perhaps the Chief of Police) to make the call — noting that since those declarations provide blanket exemptions from restrictions on crowd-control weapons and methods, placing the power to declare a riot or unlawful assembly in the hands of lower-level police officers could undermine the value of the restrictions by making it too easy and to circumvent them. All three groups suggested that there was value in looking at this issue more, and at the very least clarifying the written policy and criteria for declaration of an unlawful assembly or riot. For example, the current SPD policy says that an incident commander can issue a dispersal order for “a Group of Four or More Persons That Create a Substantial Risk of Causing Injury to Any Person or Substantial Harm to Property,” and the Seattle Municipal Code backs this up in the definition of “failure to disperse.” The CPC argues (persuasively) that four persons is a very low threshold for authorizing crowd-control weapons and tactics.

Why SPD reacted so poorly to this summer’s protests. There was much discussion around a trifecta of issues that contributed to SPD’s poor response. First, the de-escalation techniques that SPD officers are trained to use in individual or small-group situations don’t apply to de-escalating crowds; second, SPD seemed unprepared for the animosity they would face at protests where the subject of the protest was the police; and third, SPD’s crowd-control techniques are designed for moving crowds, not the stationary ones seen this summer that gathered at places such as the East Precinct. The OPA and OIG have proposed some specific actions for SPD to address these shortcomings, though they indicated that more work was also necessary to fully understand how the police department should train and act differently. Specifically, Inspector General Lisa Judge noted that SPD’s first de-escalation technique needs to be reducing its presence, as a forceful presence alone can be enough to escalate tensions in the crowd — especially when the crowd is protesting the police.

How to deal with a small number of violent protesters in a large, mostly peaceful crowd. This is a real quandary, and according to OPA Director Andrew Myerberg, there are no law enforcement agencies that have figured out how to extract and arrest a small number of violent individuals out of a larger crowd of peaceful protesters without dispersing the crowd. Myerberg asked for “thinking outside the box” to develop new methods for this situation.

How to respond to property damage. This is a large, very divisive policy question: to what extent should SPD be authorized to use crowd-control tactics and weapons to stop property damage, knowing that those tactics and weapons, despite being “less lethal,” often lead to serious injuries or worse? What makes it more complicated is that it seems that there might be room to distinguish between different levels of property damage: for instance, breaking a window versus trying to set a building or vehicle on fire, or looting. Myerberg recommended removing individual officers’ discretion to use “less lethal” weapons for crowd control for minor property damage, but re-authorizing the weapons for situations where there is threat of injury or loss of life to officers or other individuals. The CPC, on the other hand, took a harder stand, recommending that they only be authorized if there is “a threat of imminent harm to persons.”

Back-end accountability. Inspector General Judge reinforced the finding in her report that there is a gap in accountability for command-level decisions related to crowd-control. she said that her office will be looking at the issue further and making recommendations in the future on how to close the gap.

Ensuring that crowds have the ability to disperse. Judge faulted SPD for cutting off avenues for exiting an area while issuing orders to disperse, trapping people in an area and subjecting them to SPD’s use of force. She also criticized the decision to shut down public transportation, which made it difficult for protesters to leave when ordered to disperse.

The public role of the accountability organizations during periods of civil unrest. Herbold raised the question as to whether it would be appropriate for the three accountability organizations to make a public statement “after 100 days of protest and seeing the same thing over and over again.” She suggested this as at least a partial response to the public’s impatience with waiting a long time for OPA’s investigations to complete. Myerberg said that they talk about that “all the time,” particularly about what they should be communicating to SPD’s command staff. He committed to discussing it further with the OIG and CPC leadership.

 


Myerberg also let it be known that next Friday his office will be releasing its findings from the first batch of protest-related complaints. While he didn’t give details, he did say that some of the complaints in this first group would be sustained while others would not.

While the accountability organization leadership and most of the Council members present were deeply engaged in wrestling with the many issues, Council member Sawant seemed intent on generating more heat than light. She unleashed a direct attack on Myerberg for daring to suggest that the Council should re-authorize less-lethal weapons, when in her eyes he has failed in his responsibility to hold officers accountable for their actions:

“This presentation by Director Myerberg did not start with the important point, the premise that a lot of harm has been done to peaceful protesters including all the way up until a few days ago. There was no mention of that whatsoever. And my main point here would be that the Office of Police Accountability’s mandate is to evaluate police misconduct. I want to know how is it that the OPA has actually done its job before it starts advocating for cops to have more weapons. How many officers has the OPA held accountable for the violence and the lies against the protesters, that resulted in 18,000 complaints? What did the OPA do about the officer who maced a 7 year old in the face? Director Myerberg, you’re advocating for officers to be held independently accountable. What have you done to hold officers accountable for any of those 18,000 complaints, and how is it that not having done any of that work, you are basically saying that any kind of restrictions on the police, despite this mountain of egregious evidence against them, is going to be problematic?  You’re also raising, you’re saying, “I don’t know what this means, I don’t know how to implement this.” I don’t take this at face value. This is problematic. And it’s really problematic and deeply troubling given where we are. This is not ten years ago, this is today, after everything that’s happened. So I would like  some honest answers here.”

Both Herbold and Gonzalez came to Myerberg’s defense, with Gonzalez apologizing to him for Sawant’s “attempt to undermine our accountability process for political purposes.” Sawant was undeterred, however, and renewed her opposition to any recommendation to allow SPD officers to use “less lethal” weapons under any circumstances, including to deal with violent protesters — and along the way accused Myerberg of being Mayor Durkan’s puppet:

“You are in fact portraying a picture that is not existing and it’s hypothetical, that the police department and many politicians use.  And it does not conform with reality. What the reality shows is that this is not a both-sides situation as you said where there are problems on both sides. That is completely in denial of overwhelming statistical evidence from Seattle and from every other city that when you look at protest movements overwhelmingly the violence and the force come from the police department, and also they have the weapons on their side. For example, I would not consider someone threw a water bottle at a police officer — I don’t advocate for those, absolutely, and if I’m there I will advocate for not doing that, but the point is, where does the overwhelming violence come from? Ordinary people don’t go around with tear gas canisters and blast balls and rubber bullets and all that sort of thing; they’re just there protesting and as I said it’s a question of statistics. In the overwhelming majority of the situations what happens is peaceful protesters are targeted. Movements are targeted. It’s not about individual protesters; when it becomes a movement then it becomes a threat to the state, and that’s when the police forces are deployed. And the same sort of dishonesty is being used even with the less-lethal. I stand by what I said: I absolutely think that we need a reasonable and humane policy-making approach. But look at all the deaths that have happened at the hands of the police through routine patrol operations. Look at Charleena Lyles. There was no law, and there isn’t one, that says you should not use less-than-lethal approach to make sure that the situation is brought under control without loss of life. So why are these lives being lost? So there is no accountability there as well. So while we obviously have agreement on the general premise, there is a big distance in what you think actually needs to be done, and I’m sure you’re reflecting what Mayor Durkan’s position is also, and it’s not just about you, it’s also about political officials, the buck stops with elected officials, and my position and the movement’s position and the community’s position is coming from a review of actual evidence which does not support the way you are portraying this situation.”

While Sawant didn’t attack Judge directly, and was supportive of the Community Police Commission, she did try to cast doubt on the legitimacy of the accountability system as a whole:

“Council member Gonzalez said that she has a lot of confidence in the accountability structure that have been set up. I just want to clarify that I do not share her confidence, and the Office of Inspector General and the Office of Professional Accountability are part of the executive branch of government, and we have seen Mayor Durkan’s approach and her political positions on many of these crucial issues. And these are not minor issues, these are questions of indiscriminate violence being targeted at peaceful protesters and at protest actions where children and elderly and women have been present. And this is in response to the ongoing police violence that is especially racially biased. And so these are not small issues we are talking about and so it is absolutely correct that elected representatives should be asking hard questions, but as I said before it is not just about you as individual directors of these departments. That’s why the people are protesting against the system itself, it’s because they understand that ultimately the rot is at the core of the system of capitalism and the state needs to keep protest movements in check. That’s the context in which we are talking about. But I also think it’s not an academic point. It’s also an observation of people that the reason these agencies have not been able to actually bring about accountability is because they are called “accountability organizations” but their purpose is actually to not bring about accountability and that’s why it is important to examine the record and that’s why I asked those steps – what steps have these organizations taken to increase accountability, not talk about it but actually what has been done. And the assessment of ordinary people is that not very much has been done and that’s why the protests are happening.”

For the record: the police accountability legislation that created the OPA, OIG and CPC very clearly establishes the accountability organizations’ independence:

OPA, OIG, and CPC have an obligation to exercise independent judgment and offer critical analysis in the performance of their duties under this Chapter 3.29. These oversight entities shall exercise their responsibilities under this Chapter 3.29 without interference from any person, group, or organization, including the Chief, other SPD employees, or other City officials. City employees and agents who violate these provisions may be subject to dismissal, discipline, or censure consistent with City and state laws.


Council member Herbold concluded the committee discussion by noting Judge Robart’s extension of the deadline for the city to respond: “Its existence gives us the ability to continue working on the issues we heard today and discussing what our legal approach will be moving forward. I look forward to hearing from my colleagues on the policy and how to move forward. I will have conversations with you very soon.”


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