You may recall that last June the City Council rushed through a near-total ban on SPD’s use of several so-called “less lethal” weapons, including pepper spray, tear gas, rubber bullets, and blast balls after several nights of confrontations between protesters and police officers. Several weeks later, U.S. District Court Judge James Robart, who oversees the 2012 Consent Decree imposed upon SPD, tossed the Council’s ordinance, for two reasons: because it did not follow the process prescribed in the Consent Decree for modifications to SPD’s use-of-force and crowd-control policies; and because in his view it reduced public safety by removing SPD officers’ alternatives to using lethal force.
Following Robart’s ruling, the city’s three police accountability bodies (the CPC, the OPA, and the OIG) delivered recommendations to the Council and the court on what less-lethal weapons should remain in SPD’s arsenal and under what conditions and circumstances should officers be allowed to use them.
With those recommendations in hand, the Council is now beginning the process of revising its original ordinance with the hopes that it can pass a new version that will meet Robart’s requirements.
After the Consent Decree was signed, the department spent a few years working with the DOJ and the court-appointed police monitor to write new policies for a number of topics, including the use of force and crowd management. The Consent Decree anticipated that those policies would need revisions from time to time, and laid out a process for doing so. Under that process, SPD would propose changes; the DOJ and police monitor would review and provide feedback to SPD; this process would iterate until there was a reasonable level of agreement on the new policies; and they would then be submitted to the Court for Judge Robart’s review and approval. However, last summer the City Council skipped that review and approval process and simply jumped straight to passing an ordinance that directly contradicted the existing, court-approved policies.
This time the Council, led by Councilmember Lisa Herbold who chairs the public safety committee, is trying to do it right. So far she has held two sessions (the second one yesterday) to discuss provisions of a revised ordinance, and has begun to draft an ordinance to codify those revisions. She expects to formally introduce the bill in time for it to be considered, amended, and voted out of committee at her next meeting on January 26th. But before the bill is then brought to the full Council for final adoption, it will be sent through the Consent Decree process: Herbold will pass it to the DOJ and police monitor for their review, and (assuming it needs no further revisions) on to Judge Robart for his approval. If Robart approves, then the Council will take it up again and vote on final adoption. This process will take several weeks, if not months, to run the gauntlet: the DOJ and monitor will want at least a month to review it, and then even assuming they accept it as-is, Judge Robart will likely take weeks to do his own review — especially given the events of last summer both inside and outside his courtroom.
There are several issues and impediments that will need to be addressed as this effort moves forward, including:
- Are any of the changes subject to collective bargaining with SPOG? This is an issue the Judge Robart is very familiar with, as he refused to approve the city’s 2017 police accountability legislation without understanding how collective bargaining with SPOG would affect it — and once he understood it, he found the city out of compliance with the Consent Decree. Herbold’s draft bill is vague on this question, saying only “Council will engage with the Labor Relations Director and staff as they work with the City’s labor partners in the implementation of this prohibition.” The city is required to appropriately provision equipment to police officers to do their job; if SPOG believes that the prohibitions leave officers inadequately provisioned (and the city chooses not to bargain the issue) then it could file an unfair labor practice complaint against the city and tie it up for months or years in litigation. But even before that happens, if Robart believes that parts of the bill are subject to collective bargaining, he will likely once again refuse to approve it.
- To that end, the Council’s approach to less-lethal weapons is confusing because it approaches it from the perspective of which weapons are allowed. What’s missing is a scenario-based point of view: how are officers expected to handle a particular situation or incident, and if the bill passes, will they still have the tools and weapons available to do so? For example, if a violent crowd approaches a line of police officers and the officers want to create spacing to physically separate the crowd from the officers in order to allow for de-escalation techniques, which less-lethal weapons and tools will remain available to officers to create that space? Or (and this is one of the toughest scenarios) if there is a small group of violent rioters throwing dangerous objects at police from within a peaceful crowd of protesters, what tools do police have to stop the assault on them and move in to arrest the rioters? These scenarios get to the heart of the issue that Judge Robart, the DOJ, and the OPA and OIG have raised with banning less-lethal weapons: if the city bans weapons that were intended to mandate an alternative to police officers using lethal force, are there sufficient alternatives remaining that the police can use to effectively and safely respond and do their jobs? In the two conversations that Herbold has led in her Council committee, this has not been addressed.
- The flip side of that issue: police officers have now repeatedly demonstrated that even with extensive training they have difficulty following the existing policies, particularly in their use of blast balls. Why should we have any faith that will change in the future if they are allowed to continue using those weapons? And to be clear, this isn’t necessarily casting police officers as malevolent actors: in the heat of the moment, when precious seconds count and officers need to respond instantly, it can be extremely difficult to do exactly the right thing. But the question still remains: if the effect of the less-lethal weapons doesn’t match the intent, even with the best of intentions and training, should SPD continue to be allowed to use them? That said, there are also now clear instances where SPD officers violated their training, particularly when it comes to blast balls: throwing them overhand, throwing them into a crowd, and targeting individuals rather than open areas. That makes it doubly important to ask hard questions about whether SPD can be trusted to use them responsibly.
- While Herbold and the Council are going down this route, as I reported last month SPD is independently working on its own revisions to its crowd control and use of force policies. It has circulated a draft for feedback and hopes to wrap up that process by the end of the month — at which point it too will be submitting its proposals to the DOJ and police monitor. It’s almost guaranteed that the Council’s proposal and SPD’s own proposal won’t align, and there is currently no plan or process to reconcile them. Herbold raised the issue of the competing proposals yesterday, and stressed that timing is important so that their bill could be considered “alongside” SPD’s recommendations.
Herbold’s draft bill, as it currently exists (it is very much draft and intentionally incomplete at this stage, and should not be read as anything other than a work in progress), is a baseline: it starts from a ban on all “less lethal” weapons, and then incorporates the recommendations of the OPA, OIG and CPC on exceptions to the ban where the three groups were in consensus in their recommendations. Those exceptions revolve around five specific weapons:
- Tear gas (aka “CS gas”);
- Pepper spray (aka “OC spray”);
- Blast balls;
- 40mm launchers for rubber or foam bullets or balls filled with OC spray;
- Flash-bangs (aka “Noise flash diversionary devices” or NFDDs).
In a memo that Herbold circulated to her colleagues last week, she included a table summarizing the recommendations of the three accountability groups with regard to these weapons, and the baseline that she was building into her bill. Here’s the table (click to enlarge):
To be clear (and this was a point of confusion in yesterday’s discussion) the recommendations are tied to activities, and not specific groups of officers who are allowed to use them: for example, an SPD patrol officer might be permitted to use a specific less-lethal weapon when performing regular patrol operations, but not when participating in crowd-control efforts.
For pepper spray, 40mm launchers and NFDDs, Herbold’s bill would approve exemptions for patrol and SWAT activities; for tear gas it would continue the ban for patrol activities. For all uses of blast balls and for crowd-control purposes of all the weapons it recognizes that there is no consensus among the accountability groups and leaves the policy decision to be made at the January 26th committee meeting. At that meeting, for each weapon the Council members will try to decide between rolling back to a full ban, following the recommendations they were given, or potentially adding other specific exemptions or conditions for their use.
That said, in yesterday’s meeting the committee members (Herbold, Gonzalez, Lewis, Morales and Sawant) gave several early indications on their preferences. On blast balls, the five Council members were fairly unanimous in wanting to maintain a total ban on their use. On some of the others the views were mixed — though it was clear that last Wednesday’s incident in Washington, D.C. weighed heavily on them and some had misgivings about the risk of over-restricting the tools at SPD’s disposal. Sawant, on the other hand, was defiant and persistent in her demand that the total ban be maintained, arguing that the police are not politically neutral and that they target civil rights and progressive movements.
Here is a slide deck from yesterday summarizing Herbold’s starting place for their deliberations:
At the next committee meeting on January 26, expect to see specific proposals for amendments from the Council members and a long meeting as they hash out and vote on their final proposal to put in front of the DOJ, police monitor, and ultimately Judge Robart.
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