As it stands right now, there are three separate efforts to write rules for how SPD may (or mostly may not) use so-called “less lethal” weapons for crowd control purposes. Since each of the efforts is complex on its own, and the relationship and interactions between them provide additional complications, it’s worth reviewing the whole set to understand where things currently stand and where they might go from here.
First: the status quo, before any of the efforts began, is the set of policies on crowd-control and use of force in SPD’s policy manual. Those policies were put in place through a review-and-approval process specified in the 2012 Consent Decree that involves the Department of Justice and the court-appointed police monitor reviewing the original policies and any updated proposed by SPD, and culminates in U.S. District Court Judge James Robart giving his final approval.
The three separate threads of modifications to those policies are:
- Judge Richard Jones’ preliminary injunction, issued last June and updated in August in response to a lawsuit by the ACLU and Black Lives Matter Seattle-King-County. That injunction layers additional restrictions on top of SPD’s existing approved policies and remains in force;
- SPD’s annual review and update of its policies, a schedule dictated by the Consent Decree. This past week, SPD got the thumbs-up from the DOJ and police monitor, and submitted the proposed revisions to Judge Robart for his final blessing;
- The City Council’s effort to pass severe restrictions on SPD’s use of crowd-control weapons, the first attempt at which was blocked by Judge Robart last summer. The Council now has a new draft, for which it is seeking review from the DOJ and police monitor, in an attempt to write a bill that Robart won’t block again.
Judge Jones’ Preliminary Injunction
The preliminary injunction imposed by Judge Jones is perhaps the least comprehensive of the three, as it was enacted in response to specific complaints raised in a lawsuit. The plaintiffs took issue with specific SPD actions to disperse and in some cases reroute protests, which resulted in residential neighborhoods being tear-gassed, peaceful protesters being injured, and crowds being incited rather than de-escalated. It enjoins SPD from “employing chemical irritants or projectiles of any kinds against persons peacefully engaging in protests or demonstrations,” though it allows officers to take “necessary, reasonable proportional, and targeted action to protect against specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.” The weapons “shall not be deployed indiscriminately into a crowd” and to the extent possible must be targeted “at the specific imminent threat of physical harm to themselves or identifiable others or to respond to specfic acts of violence or destruction of property.”
SPD may not use the weapons to re-route protests, unless doing so is necessary to prevent an imminent threat or respond to specific acts. Also, SPD must issue a warning before deploying crowd-control weapons, when feasible.
The injunction places further restrictions on SPD’s use of tear gas, allowing its use only if other efforts to subdue a threat have been exhausted and ineffective, and the Chief of Police determines it is the only reasonable alternative available and specifically authorizes it only directed at those causing violent or life-threatening activity.
Finally, the injunction prohibits SPD from targeting properly-identified journalists and legal observers, as well as to medics who are actively providing medical assistance and are properly identified.
SPD’s Policy Updates
SPD submitted annual updates to several of its policies, including crowd-control and use of force (mostly in the context of crowd control). Those policy updates make several important revisions to SPD’s general policies for policing protests and demonstrations, both peaceful and violent, which we won’t delve deeply into here. The changes incorporate feedback from the city’s triumvirate of accountability bodies (the OPA, OIG and CPC); however, not all of the recommendations are heeded, and in recent weeks the CPC and SPD have had an ongoing war of words over the draft policies where the CPC believes that the department needs to make stronger changes. SPD, for its part, has politely suggested that many of the CPC’s criticisms are too high-level and claimed that it is open to discussing specific language for more restrictive changes.
It’s also clear that SPD realizes that it will likely be living under Judge Jones’ injunction for some time, if not permanently, and has attempted to fold the salient points of that injunction into the policy documents, if somewhat imperfectly in places.
Some of the changes in SPD’s proposed policy updates:
- Officers are prohibited from using less-lethal weapons on restrained persons;
- Officers must issue a warning before deploying less-lethal weapons;
- In general, there is more emphasis on requiring less-lethal weapon use to be “necessary, reasonable and proportional” as specified in Judge Jones’ injunction. However, the policy update leaves out the fourth part of Jones’ language: “targeted.” Rather than make a general statement about a weapon’s use being “targeted,” it appears that SPD opted for more tailored requirements for how each specific weapon should be targeted.
- Revised “preferred target areas” for tasers, as well as areas of the body to avoid;
- Significantly revised rules about the use of canines. The changes fall short of the CPC’s recommendation that canines not be used to apprehend, arrest or restrain suspects at all. A similar debate has been happening in Olympia over a bill that would also prohibit canine officers from being used to apprehend or arrest a suspect.
- “Stop sticks” may not be used to stop moving vehicles or motorcycles.
- The rules for the use of blast balls are substantially rewritten and largely conform to the restrictions in Judge Jones’ injunction. Blast balls have been controversial because they often cause injuries including to other nearby persons, and are frequently mis-deployed (both intentionally and accidentally). The CPC has recommended for years that blast balls be prohibited entirely, but SPD has resisted that recommendation. Under the new proposed policy, Judge Jones’ language requiring a “specific imminent threat” or responding to specific acts of violence or property destruction has been incorporated. The policy also is more prescriptive about how blast balls may be deployed and says that other methods will be “highly scrutinized,” though it falls short of explicitly prohibiting them from being deployed “indiscriminately” as Jones’ injunction does.
- The rules for 40mm launchers are updated to emphasize their use in targeting and subduing an individual, and are restricted to just SWAT officers unless the Chief of Police approves other officers trained in their use for crowd-control purposes.
- A new section is added for pepper-balls, which SPD has added as a new alternative to blast balls.
- The rules for OC spray (aka “pepper spray”) have been rewritten to clarify that when multiple persons are present it should be targeted at the person or persons posing a specific threat or engaging in an act of violence.
- The requirements for SPD officers to summon medical aid after deploying a less-lethal weapon have been strengthened.
There are a few notable omissions, however:
- There is still no mention of tear gas.
- There are no explicit mentions of using less-lethal weapons to re-route a protest, and no incorporation of the restrictions on doing so in Judge Jones’ injunction.
- Medics are not given the same protections at journalists and legal observers at protests. The policy says that medics should not be arrested, but it is silent on whether SPD officers may target them. The CPC raised this issue with SPD, and SPD responded in part that there is no legal definition of a “medic” at protests, whereas there are definitions for journalists and legal observers. Nevertheless, this is another departure from Judge Jones’ injunction, which not only affords medics the same protections but details how to identify them.
The City Council’s Crowd-control Weapons Ban (version 2)
The main topic of the draft bill is of course “less lethal” weapons, but it does two other things too. First, it prohibits other law enforcement agencies providing mutual aid to SPD from using less-lethal weapons for crowd control. Second, it establishes a private right of action for physical or emotional injuries caused by SPD’s use of less-lethal weapons for crowd control in a non-violent protest (though not for anyone who commits a criminal offense just prior to SPD’s use of the weapon).
Similar to Judge Jones’ injunction, the City Council’s draft of a revised ordinance imposes a widespread ban on SPD’s ownership, purchase, rent, storage, and use of so-called “less lethal” weapons, then lists a handful of exceptions — though the exceptions are far more sparing than what Jones allowed. Many of the exceptions are for use of the weapons during a “violent public disturbance,” which it defines as “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 of person of reasonable firmness present at the scene to fear for his personal safety.” Of note: this does not include destruction of property — only bodily harm. Also, it increases the size of the gathering from the 4 persons under state law to 12 persons.
The bill allows tear gas in the case of a violent public disturbance, but only when deployed by officers training in its use within the previous 12 months; used with a detailed tactical plan developed in advance; and its use is “reasonably necessary to prevent threat of imminent loss of life or serious bodily injury.” — again, not including destruction of property. The focus on harm to persons and not property is consistent with Jones’ preliminary injunction, but you will recall that Jones otherwise imposed a different set of preconditions on SPD’s use of tear gas.
Similarly, the Council’s ordinance only allows for the use of pepper spray during a violent public disturbance, and only when the risk of serious injury outweighs the risk of harm to bystanders.
Blast balls are banned entirely, no exceptions.
The use of 40mm launchers to deploy chemical irritants or noise -flash diversionary devices (NFDDs) may not be used for crowd control at a demonstration or rally, but SWAT officers (and only them) may use them for other purposes.
The tricky part with these proposals is balancing the appropriate role for less-lethal weapons as an alternative to SPD officers’ use of lethal force — which is why it is mandated under the Consent Decree that officers carry at least one — with restraints on their potential abuse at the hands of police officers.
SPD’s policy proposals are an incremental step forward compared to the previous versions, that hew fairly closely to Judge Jones’ injunction. The Council’s proposed bill, however,is on a different path, and the DOJ and police monitor may not like it. It raises serious questions about whether the exceptions it allows provide enough of an alternative to lethal force. The Council has also staked out a position where protection of physical property is not a justification for use of less-lethal weapons, which is contrary to the views of Judge Jones, the OPA and the OIG (though the OPA and OIG recommendations are nuanced when it comes to use of force to prevent destruction of property) — while it’s very similar to the CPC’s recommendations. Finally, with limited exceptions it doesn’t allow for less-lethal weapons in circumstances outside of crowd control (e.g. a hostage situation or a sniper), in contrast with Judge Jones and SPD.
If Judge Robart approves SPD’s proposed policy revisions, then Judge Jones’ injunction will still layer on top of it and keep some restrictions in place. Since the two are now much closer in content, the injunction will be somewhat less consequential. The bigger question is what the DOJ and police monitor will think of the Council’s bill, having just approved SPD’s revisions — and assuming they approve (there’s a good chance they will not), what Judge Robart ultimately thinks of it.
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