This summer there have been two legal threads related to SPD’s use of crowd-control weapons: two similar lawsuits asking for restrictions; and the Department of Justice asking for and receiving a temporary restraining order (TRO) blocking implementation of the City Council’s ordinance prohibiting the police department’s use of crowd control weapons. Earlier this week there was activity in the first thread; today there was an important update in the second.
U.S. District Court Judge James Robart, who oversees the 2012 Consent Decree against SPD for its biased policing and excessive use of force, originally granted the TRO in late July until the city’s trio of police-accountability organizations (the OPA, OIG and CPC) delivered their recommendations on use of “less lethal” weapons for crowd control. The basis for granting the TRO was that the city (and specifically the City Council) failed to follow the process outlined in the Consent Decree for updates to SPD’s crowd-control and use-of-force policies when it passed the ordinance. According to the Consent Decree, the city is required to consult with the DOJ and the Court-appointed police monitor first, then bring the policy to Robart for his approval. The City Council did none of that.
In mid-August, the OPA, OIG and CPC delivered their recommendations, and the outgoing police monitor filed a written response as well. The DOJ was due to file a motion to convert the TRO into a preliminary injunction, but that deadline has been extended three times, most recently “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.”
Today the city and DOJ filed a joint motion to convert the TRO into a preliminary injunction, under the same terms. The parties also asked Judge Robart to strike the remainder of the court-imposed timeline for filings. Instead, they said that they would be invoking the provisions of the Consent Decree that define how changes are made to court-approved policies. They asked for the preliminary injunction to stay in effect until that process completes and the Court chooses to lift it.
When asked what topics were expected to be covered by the new policy review, spokesperson Dan Nolte of the City Attorney’s Office said, “Council’s legislation and implications for SPD’s Use of Force Policy, Crowd Management Policy, and Crisis Intervention Policy will all be part of the discussions with DOJ and the new monitor.”
A five-paragraph section of the Consent Decree (paragraphs 177-181) guides the policy reviews. Among the instructions therein:
- “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. The Monitor will approve the materials unless the Monitor determines that they conflict with the terms of the Settlement Agreement. If the Monitor disapproves, he or she will state the reasons for the decision in writing.”
- “If either Party objects to the determination of the Monitor the Parties will meet and confer on the objections within 14 days. If necessary, and consistent with the other deadlines herein, any Party may petition the Court thereafter to resolve the objections.”
- “With the assistance of the Monitor, SPD will review each policy, procedure, training curricula and training manual required by the Settlement Agreement 180 days after it is implemented, and annually thereafter (on a regularly published schedule), to ensure that the policy or procedure continues to provide effective direction to SPD personnel and remains consistent with the purpose and requirements of the Settlement Agreement and current law.”
- “SPD also will review policies and procedures required by the Settlement Agreement as necessary whenever it has notice of a policy deficiency. Within 60 days of that review, the PSS will revise the policy or procedure and, if necessary, submit it to the Monitor and DOJ for review and approval.”
Nolte said that no timeline for the review has been drawn up yet, and that the city would need to consult with the DOJ and newly-appointed police monitor before proposing one.
Despite the fact that the City Council now has separate legal counsel representing it in this matter, Nolte confirmed that the city’s filing today represented all of city government, including the Council. So it has apparently agreed to have its crowd-control weapon ordinance enjoined at least until the policy review completes.
Late this afternoon, Judge Robart granted the motion in full. So now the ball is in the city’s court (and specifically SPD’s) to propose new versions its crowd-control, use-of-force, and crisis intervention policies to the DOJ and police monitor. One can assume that it will solicit input from the City Council as well.
There is, however, one more wrinkle: proceedings in the lawsuit brought by the ACLU and Black Lives Matter — one of the two cases in the first thread mentioned at the top of this article — was stayed until Judge Robart made his final ruling on the “validity and effect” of the Council’s crowd-control weapons ordinance. The two sides will continue to spar over whether SPD is in violation of the preliminary injunction in that case, but it looks like final resolution is now a long way off.
But longer term, today’s motion is positive news, in that for the first time in months there is a visible path to the city moving back toward full compliance with the Consent Decree. It still needs to deal with the SPOG contract, however; to that end, Mayor Durkan is pushing the state legislature to give it more leverage to negotiate a better contract when the current one expires at the end of the year.
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