Today the City Council’s Public Safety and Human Services Committee polished off a draft of a revised ordinance placing restrictions on SPD’s use of so-called “less lethal” weapons for crowd control, and sent it off to the Department of Justice and the court-appointed police monitor for comments. In so doing, the Council is signaling that it still feels the need to legislate in this domain while it also recognizes that the terms of the 2012 Consent Decree constrain its ability to do so.
Committee chair Lisa Herbold led her colleagues through this exercise in threading the needle, explicitly acknowledging the repeated messages over several months from the DOJ, the police monitor, two U.S. District Court judges, and the troika of police accountability organizations regarding the challenges and hazards of the Council trying to legislate its own limits to the use of crowd-control weapons — culminating in “harsh words” from Judge James Robart last week in a Consent Decree hearing. Last summer Robart blocked implementation of the Council’s first ordinance, authored by Councilmember Sawant, which placed a near-complete ban on SPD’s use of less-lethal weapons. Robart ruled that the Council had bypassed the process for such changes dictated in the Consent Decree, and that by banning less-lethal weapons the ordinance could decrease public safety by making police officers more likely to resort to lethal force. The introduction of less-lethal weapons, and the requirement for all officers to carry at least one, were mandated in the Consent Decree to ensure that officers have another option available short of lethal force that would be prioritized when the situation allows.
With this second attempt at a bill restricting crowd-control weapons, the Council used the recommendations of the Inspector General and the OPA, and to a slightly lesser extent the CPC who dissented from its sister organizations on some issues. But according to Herbold today, she also used as a guidepost the preliminary injunction that Judge Richard Jones imposed on SPD last June in the lawsuit filed by the ACLU and Black Lives Matter. Jones and Robart made no secret of the fact that they had discussed their overlapping cases among themselves, so Herbold and her colleagues had good reasons to believe that an ordinance aligned with the restrictions in Jones’ injunction would likely find favor with Robart, the ultimate decision-maker.
Four of the five committee members — Lewis, Morales, Gonzalez and Herbold — made it clear that while they all wanted to pass stronger restrictions, including a complete ban on tear gas, they recognized the reality of the situation: at the moment there are no restrictions in the Seattle Municipal Code, and if they were to now pass a bill with tougher rules than those favored by the OPA, OIG and Jones it would assuredly result in Robart once again overturning their ordinance. Concluding that having something on the books was better than having no ordinance at all, the four wistfully signed on to a compromise bill that kept them within the boundaries.
Not unexpectedly, Sawant was not playing along and once again argued for the toughest bill they could write, arguing that the Council had a “moral and political obligation to fight for the strongest bill possible.” She offered five amendments to try to insert back in restrictions and protections that had been removed by her colleagues and that she considered “loopholes” that SPD would exploit, including broadening the private right of action for individuals injured by SPD’s use of less-lethal weapons at a demonstration or rally; removing an exemption wherein SPD can use pepper spray during a “violent public disturbance”; and re-inserting limitations on SPD’s use of kinetic impact projectiles including rubber bullets.
While the Councilmembers often have discussions with city attorneys in closed-to-the-public executive session to discuss legal risks associated with pending legislation, they rarely speak in public about the content or conclusions of those private discussions. But today was an exception, as Councilmember Lewis made clear that the “unanimous opinion of our legal advisors” was guiding them as to what provisions could and could not be included in the draft bill in order to avoid Judge Robart once again blocking it. The immediate effect of that guidance was that none of Sawant’s five proposed amendments even garnered a second, let alone made it to a vote. This of course led Sawant to chastise her colleagues for “throwing up your hands” instead of “us[ing] your podium to stand with movements.” “It is mind-boggling,” she said, “for you to water it down and think that this will hold the police accountable. The message to the police is still, ‘you can do what you want.'” In a strange turn, Sawant also suggested that the Council could simply wait until after the Consent Decree is terminated, and then write whatever they wanted into the ordinance; but Herbold pointed out that given the current situation it is “unknowable”how long the city will continue under the Consent Decree (it is certain to be more than two years, as once the city comes into full compliance there will be a two-year sustainment period before it can be terminated).
The four Councilmembers did approve one amendment, offered by Herbold, to fine-tune the bill’s alignment with where they believe the boundaries of acceptability lie. That amendment clarified the definition of a “violent public disturbance” — attached to some of the exemptions for SPD’s use of less-lethal weapons:
“Violent public disturbance” means any gathering where 12 or more persons who are present together use or threaten to use unlawful violence towards another person or group of people and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his personal safety.
Under a problematic definition in state law, a “riot” can have as few as three individuals taking part; increasing that number to twelve in the pertinent definition helps to address one of Sawant’s points: that under existing rules SPD can exploit loopholes to declare any public demonstration an unlawful assembly and justify its use of less-lethal weapons on the crowd.
Herbold’s amendment also adjusts the narrow exception for allowing SPD to use tear gas, aligning it with Judge Jones’ injunction. Tear gas would only be allowed during violent public disturbances, and only when:
- it is deployed by officers who have received training on its deployment within the past twelve months;
- it is used with a “detailed tactical plan” that was developed prior to the deployment;
- its use is “reasonably necessary to prevent threat of imminent loss of life or serious bodily injury.”
It should be noted that tear gas would not be authorized for use to prevent destruction of property.
Finally, Herbold’s amendment makes the exemptions to the ban on lethal weapons contingent upon SPD completing its 2020 use-of-force policy review (which is currently underway).
Herbold’s amendment passed by a 4-1 vote (Sawant the only no vote). Rather than pass the draft bill (which has not even been introduced as official legislation) up to the full Council for adoption, the committee then approved (by a 4-1 vote again) a motion to “recommend the draft bill as amended to be sent to the court-appointed monitor and US DOJ for their review under the process described in the Consent Decree.” Once transmitted, the DOJ and monitor will have 45 days to review it; if they raise objections, then there will be a 14-day period to “meet and confirm,” and if the conflict is not resolved then it goes to Judge Robart for adjudication.
Complicating this process is the fact that SPD has been independently drafting its own proposed changes to its use-of-force and crowd-control policies, following to the letter the process in the Consent Decree. Interestingly, while the Consent Decree mandates that SPD review and revise its policies on a regular schedule, it neither permits nor forbids explicitly the City Council from proposing its own competing version. But Herbold interprets an order by Judge Robart last October as tacit permission for the Council to independently submit proposed legislation to the same review process.
SPD’s proposal is nearly complete and should also be hitting the desks of the DOJ and police monitor shortly. It’s unclear how they will react to receiving two competing, conflicting proposals for their review. But that will be the next chapter in this ongoing saga.
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