Council passes new ban on less-lethal weapons out of committee

This morning the City Council voted out of committee its latest iteration of a ban on SPD’s use of so-called “less lethal” weapons, with a couple of small amendments.

SCC Insight reported last month on the bill after its first hearing in Councilmember Herbold’s public safety committee.

There were three amendments up for consideration this morning:

1. An amendment by Councilmember Sawant that would broaden the private right of action granted to victims of SPD’s unauthorized use of less-lethal weapons. The bill as drafted precluded the right of action during a “violent public disturbance” and for anyone who commits a criminal offense at or immediately prior to a use of less lethal force that violates the ban. Sawant argued that both of these are large loopholes: if “twelve Proud Boys start a fight” in the middle of a crowd of 10,000 peaceful protesters, then SPD could declare the protest to be a “violent public disturbance”; and SPD would have an incentive to arrest protesters who were victims of their use of less-lethal weapons. Council President Gonzalez countered that there are separate state and federal protections that provide victims of excessive police force a private right of action independent of the Council’s specific ban on less-lethal weapons, but also pointed out that the “collateral estoppel” body of law creates significant barriers to an individual convicted of a crime from asserting a private right of action. Councilmember Herbold also noted that the bill defines a “violent public disturbance” so it would not be within SPD’s discretion to make that determination. Sawant’s amendment failed by a 2-3 vote, with Sawant and Morales voting for it, and Herbold, Gonzalez and Lewis voting against.

2. An amendment by Herbold that removed the aforementioned exception to the private right of action for violations that occur during a “violent public disturbance.” Her version, admittedly a riff off of Sawant’s proposed amendment, received broader support and a 4-0 vote. However, Gonzalez abstained, noting that she was generally supportive but wanted to work on changing the exception for those who “commit a criminal offense” to those who are “convicted” of a criminal offense.

3. An amendment by Herbold to revise the bill’s language around launchers for pepper-balls. As drafted the bill already allowed for 40mm launchers for chemical irritants under some very specific circumstances; Herbold’s amendment extended that to pepper-ball launchers of any caliber. This aligns with a change to SPD’s use-of-force policies that the judge overseeing the Consent Decree recently approved, and Herbold said that it “seemed unwise” to ask the judge to unwind a change he had just recently approved. Sawant objected to the amendment, arguing that it would further weaken the bill by granting SPD more uses of less-lethal weapons; Herbold, with the support of the Council’s staff, argued that the opposite was true: launchers of other calibers would be allowed if they were not called out. Sawant was right; Herbold was wrong — but it was an easy mistake to make. The “less lethal weapons” ban is structured in a potentially confusing way, in that it first bans all less-lethal weapons, then provides for a specific set of exceptions. Pepper-ball launchers (other than 40mm launchers) would have been completely banned without Herbold’s amendment; with it, they are allowed under the same narrow conditions as 40mm launchers for chemical irritants. The amendment was adopted by a 4-0-1 vote, with Sawant abstaining because she was still (rightfully) unsure of the effect of the amendment).

The bill passed unanimously out of committee, but it won’t be going to the full City Council for final approval for several weeks. Judge James Robart, who oversees the 2012 Consent Decree, has scheduled a status conference with all of the stakeholders on August 10. While it is unclear whether the Council’s bill will be a topic, Herbold said today that she wanted to give the Council the benefit of any discussion that occurs during the hearing. To that end, she will place a hold on the bill until August 16th at the earliest.

The bill has one other safeguard to avoid further angering Robart: the restrictions on less-lethal weapons won’t take effect until 30 days after he approves the ordinance (assuming he does). That aligns with the procedure for modifying SPD’s policies outlined in the Consent Decree: the city proposes a policy change, the DOJ and court-appointed police monitor review it and provide their comments to the Court, and then Judge Robart decides whether to approve it.

That doesn’t mean it will soar through, however. The bill does not authorize the use of less-lethal weapons to prevent or stop property damage, but rather only for human life and safety. That is likely to be a controversial limitation that the DOJ, the police monitor, and ultimately Judge Robart might find fault with — enough to cause Robart to withhold his approval.

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