(story updated below)
On August 27th, with the City Council in recess, Mayor Durkan quietly returned unsigned the Council’s ordinance restricting SPD’s use of so-called “less lethal weapons,” allowing it to pass into law unchallenged at least for the moment. But she did take the opportunity to attach a scathing letter detailing a litany of complaints about the legislation, calling it “of doubtful legality,” and claiming that the Council knows that “significant parts of the bill will never go into effect” because of its flaws.
The Mayor has three options when the Council passes a bill: sign it into law, veto it, or return it unsigned — which has the same practical effect of signing it into law without the Mayor’s name being attached to it. Durkan has returned bills unsigned in the past when she said that she believed them to be illegal or against the city’s best interests but when the Council obviously had the votes to override her veto. In this case, she did not specify her reasons for returning the bill unsigned instead of vetoing it; SCC Insight has an inquiry into the Mayor’s Office on that point and will update this story with any answer it receives.
Mayor Durkan’s letter raises several broad issues about the bill before it dives into a detailed critique. She argues that the Council is inserting itself into the process of defining SPD’s operational policies, in violation of both the City Charter (which she asserts vests that power solely with the Chief of Police) and the 2012 Consent Decree (which lays out a process for SPD to revise policies and then seek approval from the DOJ, police monitor, and court). To that end, Durkan points out that earlier this year SPD already made changes to its use-of-force and crowd control policies following the process enshrined in the Consent Decree, and the Council’s ordinance conflicts with those policy changes.
Durkan’s letter also asserts that the Council’s ordinance, which make the bill’s effective date conditional on Judge Robart’s approval, is “of dubious legality.” She does not explain why, though it may echo an argument made last year in the legal challenge to Tim Eyman’s Initiative 976: that the legislative branch may not delegate its legislative authority (such as approving or establishing the effective date of an ordinance) to another branch of government. The court may enjoin or vacate the ordinance — if a party files a motion with the court requesting it to do so — if it finds that the ordinance is in violation of the Consent Decree or other laws, but it can’t “approve” the ordinance or dictate its effective date.
Durkan also suggests that the City Council knows that “significant parts of the bill will never go into effect for the reasons cited in this letter,” and thus passing it “unfairly sets community expectations that all provisions will be enacted when they will not. This will undermine public trust, create confusion, and could hasten more departures from SPD.” In other words, the Mayor is accusing the City Council of being performative in passing this ordinance.
Among the detailed critiques of the ordinance Mayor Durkan alleges:
- It writes SPD operational policies into Seattle Municipal Code. This, she argues, “undermines a core purpose and requirement of the Consent Decree — to cement in place within the department systems for ongoing critical analysis that can inform iterative, agile and reflective policy changes on an ongoing basis.” Durkan argues that doing so “essentially paralyzes this process.”
- It undercuts the accountability ordinance by inserting the Council’s preferred policies instead of allowing the accountability organizations to play their roles. The Council did, in fact, seek input from the OPA, OIG and CPC before passing this revised version of the less-lethal weapons ban, though there were several issues where the three bodies were not in agreement. Durkan points out that the OIG is still working through its Sentinel Event Review of SPD’s actions at last summer’s protests, which has already generated several recommendations related to SPD’s use of force and crowd control policies and is likely to generate many more before it is complete; that suggests passing an ordinance now is premature. Durkan cites Judge Robart’s recent admonition against “knee-jerk reactions” in her critique of the Council’s timing (though the Council has been working on this for several months). However, this same critique could be leveled against SPD’s revisions to its use-of-force and crowd-control policies that it made earlier this year: by the same logic, the department should have waited at least until the Sentinel Event Review was complete.
- It is a “gift to plaintiff lawyers and needlessly expands the city’s legal and financial liability in a manner that will have untold consequences, is ripe for abuse, and significantly hampers our ability to receive mutual aid from neighboring jurisdictions.” While not mentioning it explicitly, this likely refers to the private right of action that the ordinance grants to citizens affected by any future violations by SPD.
- It violates two bills passed earlier this year by the State Legislature: HB 1310, and HB 1054. HB 1310 sets a statewide standard for when law enforcement officers may use force. HB 1054 places rules and restrictions on law enforcement officers’ use of tear gas. Unless expressly forbidden from doing so by the state Legislature, local governments may enact laws that place additional restrictions on something restricted under state law, but may not pass a law that can’t co-exist with the state law without conflict. It also may not explicitly permit something under local law that state law forbids (or vice versa).
- The letter reiterates a concern raised before (including by the OPA and Judge Robart) that eliminating “less lethal” weapons, or requiring explicit authorization before deploying them, may result in SPD escalating to the use of lethal force faster. Less-lethal weapons were mandated in the Consent Decree to ensure that SPD had options before escalating to the use of lethal force.
- The ordinance mandates that SPD re-draft its use-of-force and crowd-control policies to align with the new rules for less-lethal weapons, and submit the redrafted policies to the DOJ, police monitor, and court, for approval. That, Durkan says, “places SPD in the unfair and untenable position of proposing, and defending, to the DOJ and the Court, now-codified provisions of City law that it cannot support as best practice.”
- The ordinance’s requirement to re-draft the policies within 60 days is “impractical, and a poor use of resources.” It also “likely could invite unfair labor practice claims,” suggesting that provisions of the new rules for less-lethal weapons will require bargaining with SPOG and SPMA, the unions representing SPD officers and supervisors.
- The requirement to then retrain SPD officers on the new policies within 30 days is a “near impossibility.”
Durkan closes out her letter by stating that she will be “directing SPD to outline its concerns and formally request technical assistance from the DOJ and the Monitor to ensure the next steps of implementation will improve policing and reform efforts and to ensure any revisions remain consistent with both state law and the city’s commitments under the Consent Decree.”
Mayor Durkan’s letter is a remarkably blunt assessment of the City Council’s ordinance, providing glimpses into the legal advice that both the Mayor and Council have received on issues related to the bill. It suggests that the bill may face a rough path forward as it runs the gauntlet of the DOJ, the court-appointed police monitor, and ultimately Judge Robart. The monitor and DOJ declined to provide substantive feedback on the bill before it was passed, but the floodgates are now open. The monitor will advise Judge Robart, mainly on the merits of the new policies and their implications for the Consent Decree and public safety. The DOJ will also likely comment on the policy implications, but as a formal party to the Consent Decree proceedings also has the option to (once again) ask the court to toss out or enjoin implementation of the ordinance if it believes it is illegal or violates the Consent Decree.
SCC Insight has asked Councilmember Herbold, the sponsor of the bill and the chair of the Council’s public-safety committee, for comment on the issues raised in Mayor Durkan’s letter.
Herbold has not responded over the holiday weekend; this article will be updated with any response received. UPDATE: Councilmember Herbold’s office provided the following statement:
Councilmember Herbold worked closely with the City Attorney’s Office and outside legal counsel in the development of Ordinance 126422, adopted 7-0 by the City Council, including consideration of relevant state law, and recent changes adopted by the state legislature.
The process began with consultation with the Community Police Commission, Office of the Inspector General, and Office of Police Accountability, using their consensus recommendations as the starting point.
The legislation has been developed in compliance with, and respect for, the Consent Decree process. In addition, Councilmember Herbold met informally with Court-appointed Monitor and US Department of Justice. She made changes to the legislation in response to these conversations, and to District Court decisions. The Council process took over a year to complete.
With the Council voting to adopt the legislation, this is what happens next:
- First, SPD will draft policy revisions within 60 days after the ordinance takes affect (provided by Section 4 of the bill)
- Second, DOJ and the Monitor will review the policy revisions (this is when their formal review under the Consent Decree takes place)
- Third, the Court will review the policy revisions (also required by the Consent Decree)
- Fourth, if the Court approves the policy revisions, then the revised policies and the substantive provisions of the bill will take effect (provided by Section 5 of the bill)
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Insights, indeed. Many thanks! I’m curious where the City Attorney is in all of this. How can the Council and the Mayor be so far apart in their legal assessments of this?
The City Attorney provides attorney-client privileged legal advice to both sides, so he won’t say anything publicly. I hear over and over though that both the Mayor’s Office and the Council regularly argue with the City Attorney’s Office lawyers when they don’t like the advice they are given. (to be fair, I hear this far more about the Council than the Mayor, and that the Council is more prone to disregard City Attorney’s Office lawyers)
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