Herbold introduces new version of ban on less-lethal weapons

This week Councilmember Lisa Herbold is formally introducing an update to the City Council’s ban on less-lethal weapons that it passed last summer and that was subsequently struck down by Judge James Robart.

Earlier this year, Herbold drafted an updated version, amended it in her committee, then sent it off to the DOJ and the court-appointed police monitor for their review as required under the Consent Decree (a step that they omitted last summer, one reason why Robart blocked the implementation of the original ban).

In a email statement on Friday, Herbold declined to discuss her new bill in advance of her plan to speak about it at the Monday morning Council Briefing while acknowledging that there was “engagement” with the DOJ and Monitor:

“Councilmember Herbold is introducing legislation to limit the use of less lethal weapons, following engagement with the DOJ and Monitor, in line with the process laid out in the Consent Decree for use of force policies. She will speak to this during Monday’s Council Briefings. The legislation is on the agenda for Tuesday’s PSHS Committee, for briefing and discussion only. 

This legislation builds off the legislation originally introduced by Councilmember Sawant and unanimously adopted by the Council, the subsequent consensus recommendations from the three accountability bodies, and feedback through the Consent Decree process, after the Public Safety and Human Services Committee voted on February 9th to send the draft legislation to the Monitor and DOJ for their review.”

Herbold also noted that the bill is on the agenda for her committee meeting Tuesday morning, though no vote is scheduled.

With a few exceptions, the introduced bill matches the draft that Herbold sent to the DOJ and monitor. The substantive changes, which one may assume reflect the feedback she received, include:

  • It defines what it means for SPD to take action “for the purposes of crowd control” as “with the intent to move or disperse a crowd.” Notably, this specifies that there must be intent on the part of SPD; also, it excludes actions taken by SPD within or toward a crowd other than moving or dispersing it, such as disrupting (permanently or momentarily) violent or otherwise illegal actions.
  • It rewrites the rules for tear gas, allowing SWAT officers to use it when “the use is reasonably necessary to prevent threat of imminent loss of life or serious bodily injury” in certain circumstances outside of the context of demonstrations and rallies, as well as during a violent public disturbance “under direction of or by officers who have received training for its use within the previous 12 months, with a detailed tactical plan developed prior to deployment, the use is reasonably necessary to prevent threat of imminent loss of life or serious bodily injury, and the risk of serious bodily injury from violent actions outweighs the risk of harm to bystanders.”
  • It similarly modifies the rules for deploying OC spray, allowing its use within set parameters outside of demonstrations and rallies, during a demonstration or rally other than for the purpose of crowd control, and during a violent demonstration for the purpose of crowd control.
  • It rewrites the rules for SPD’s use of 40mm launchers to deploy chemical irritants. SWAT officers may use them outside the context of demonstrations and rallies; SWAT officers may also use them during a demonstration or rally other than for the purpose of crowd control.

While the proposed new rules would allow SPD some uses of OC spray, tear gas, and projected chemical irritants, they are all constrained to cases where “the risk of serious bodily injury from violent actions outweighs the risk of harm to bystanders.”

The recitals in the new bill also highlight two recent developments: Judge Robart’s recent approval of SPD’s revised use of force and crowd management policies; and the Washington State Legislature’s passage of ESHB 1054, which restricts law enforcement agencies’ use of tear gas.

There will no doubt continue to be debate and disagreement among the Council members and with other stakeholders as to whether these constraints go too far, or not far enough. However, the big policy issue that remains a point of contention — and under-debated — between the City Council and many of the other stakeholders is whether SPD should be allowed to use “less lethal” weapons to prevent or stop property damage. Last summer’s preliminary injunction by Judge Richard Jones in the case brought by Black Lives Matter Seattle-King County specifically carved out exceptions to restrictions that included property damage as well as harm to persons; but Herbold’s bill is carefully worded to limit exceptions to the ban to only those involving harm to persons. This is invoked when the bill constrains cases to those where “the risk of serious bodily injury from violent actions outweighs the risk of harm to bystanders,” but it’s also built into its definition of a “violent public disturbance”:

“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.

Advocacy groups have pushed hard for this approach, declaring that protecting property should not take precedence over creating hazards for people via “less lethal” weapons — and that it’s far too easy for police officers to justify violence against protesters by citing the threat of property damage. However, the Council has yet to state what they believe SPD should do when confronted with a group of people breaking windows, defacing property, setting fire to dumpsters, and causing other forms of damage, as occurred last summer, that may not create immediate safety hazards for people but will cost others money to clean up and repair. The Council’s unspoken current answer seems to be that SPD should let protesters cause damage to property, then try to arrest them after the fact — which obviously doesn’t sit well with property owners. Finding the right policy in how far SPD can go to protect property will continue to be a tricky issue for a City Council caught between advocacy organizations on one side, and businesses, property owners, and potentially the DOJ and courts on the other.

As mentioned above, Herbold will announce the bill Monday morning in Council Briefing, then Tuesday morning in the Public Safety and Human Services Committee she will lead a first discussion of her newly-introduced bill; no vote on the bill is planned. As of yet, there is no timetable for moving the bill forward.

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