Council’s ban on “less-lethal” weapons will be early test for Harrell as SPD waits for guidance

Among the unresolved messes that Mayor Durkan will be leaving for Mayor-elect Harrell this week is the City Council’s ordinance restricting SPD’s use of certain “less lethal” weapons for crowd control, which SPD has yet to implement.

Let’s review the history: during the height of the protests — and SPD’s violent reaction — in the summer of 2020, the City Council passed a ban on most uses of so-called “less lethal” weapons by SPD within the context of crowd control. But Judge James Robart, who oversees the 2012 consent decree, enjoined its implementation at the request of the U.S. Department of Justice (the plaintiff in the consent decree). In early 2021 the Council, led by Councilmember Herbold, tried again to pass a ban on less-lethal weapons that Robart would allow, but that effort stalled out until August when Herbold finally pushed it through (Mayor Durkan returned it unsigned, allowing it to pass into law). Herbold had asked the DOJ and the court-appointed police monitor to provide feedback on her draft bill, but both declined; she did, however, incorporate some of the input that the Office of Police Accountability, Office of the Inspector General, and Community Police Commission had provided in August 2020.

One of the issues that Robart raised with the first ban that the Council passed (the one that he enjoined) was that it bypassed the process in the Consent Decree for updating SPD’s policies, including for use-of-force and crowd control. The Consent Decree reads:

180. With the assistance of the Monitor, SPD will review each policy, procedure, training curricula and training manual required by the Settlement Agreement 180 days after it is implemented, and annually thereafter (on a regularly published schedule), to ensure that the policy or procedure continues to provide effective direction to SPD personnel and remains consistent with the purpose and requirements of the Settlement Agreement and current law.
181. SPD also will review policies and procedures required by the Settlement Agreement as necessary whenever it has notice of a policy deficiency. Within 60 days of that review, the [Professional Standards Section within SPD] will revise the policy or procedure and, if necessary, submit it to the Monitor and DOJ for review and approval.

The final ordinance that the Council passed in August 2021 tries to either respect or circumvent this, depending on one’s perspective, by requiring SPD to re-draft its current use-of-force and crowd-control policies to align with the Council’s ordinance by the end of November, and then submit it to the DOJ and police monitor:

Within 60 days after this ordinance takes effect, the Seattle Police Department shall draft revisions to the Seattle Police Manual to bring it into compliance with this ordinance and publish the proposed revisions on its website.

It also says that its new restrictions on less-lethal weapons won’t become effective until Judge Robart approves SPD’s revised policies based upon those changes.

The first problem with the Council’s directive is that SPD already revised these policies last winter, following the letter of the process dictated in the Consent Decree: it solicited input from the DOJ, the Monitor, and the three accountability bodies, circulated drafts, incorporated feedback, submitted them to Judge Robart, and obtained his approval. The City Council is directing SPD to go through that process again. And ultimately it would lead to Judge Robart being asked to approve a second, conflicting update to the same policies within a year of approving the first.

The second problem is that the Council is also telling SPD what the ultimate policy needs to be — cutting all the other stakeholders out of the decision-making process, including SPD. In early November SPD asked the DOJ and the police monitor for technical assistance in trying to reconcile the Council’s ordinance with the most recent version of the two policies; both the DOJ and the Monitor declined to provide such assistance.

In a filing with the court last week, police monitor Dr. Antonio Oftelie explained that he declined for two reasons: first, because there was no meaningful opportunity to engage in an iterative process to arrive at sound, workable policies; the task was simply administrative, to find a way to integrate the Council’s pre-selected policies. Second, he did not believe that the Council’s ordinance represented best practices for law-enforcement policies related to use-of-force and crowd control.

Without the support or cooperation of the DOJ or the Monitor, SPD has not brought forward revised drafts of its policies, and has now missed the deadline that the Council imposed for doing so. The question of whether there are consequences for missing the deadline brings us to the third problem with the Council’s ordinance: there are significant questions as to whether it’s legal — or if it has even gone into effect.

First, the Consent Decree (as cited above, paragraphs 180-181) gives SPD the responsibility for revising its policies: annually with the assistance of the Police Monitor, and on demand when SPD is given notice of a “policy deficiency” (which it has not at this time). There is no role contemplated for the City Council in that process. Of course that doesn’t mean that the Council can’t legislate any subject that touches on SPD’s policies; it has before and it will again. But in this case it is explicitly trying to legislate the details of the policy, while barely paying lip service to the Consent Decree’s process.

Second, the City Charter also gives full control over SPD to the Chief of Police and the Mayor. That means that the Chief and Mayor write SPD’s operational policies, not the Council. It also means that the Council probably can’t dictate that SPD must revise its operational policies within a specific timeframe.

Third, the Council’s ordinance itself has some questionable drafting and circular references that raise questions about under what circumstances it actually takes effect. There are six sections to the ordinance:

  • Section 1 sets out the new restrictions on use of less-lethal weapons.
  • Section 2 requests that the City Attorney notify the DOJ and the Monitor about the passage of the ordinance.
  • Section 3 recognizes that certain aspects will likely be subject to collective bargaining and commits the Council to work with the city’s Labor Relations Director on those negotiations. Nevertheless, simply codifying into law terms that are subject to collective bargaining likely constitutes an unfair labor practice on the part of the city.
  • Section 4 is the requirement for SPD to re-draft its policies “[w]ithin 60 days after this ordinance takes effect” and publish them on its website.
  • Section 5 reads: “Section 1 of this ordinance shall take effect and be in force 30 days after the Court in United States v. City of Seattle, Western District of Washington Civil Case Number 12-5 cv-1282, has approved the revised policies required by Section 4 of this ordinance.”
  • Section 6 reads: “This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section 1.04.020.” Mayor Durkan returned the bill unsigned on August 27, 2021, so the ordinance would take effect around September 23.

So there are multiple, conflicting, and somewhat circular statements about when the ordinance, or parts of it, take effect. Section 6 says that the entire ordinance takes effect on September 23, but Section 5 says that Section 1 takes effect much later, only when Judge Robart approves the revised policies.

Even if we hand-wave away the contradiction between Sections 5 and 6, there is a constitutional issue as to whether the Seattle City Council can delegate the decision as to the effective date of an ordinance (or part of one) to a federal judge: in general, but also particularly when it is based upon his approval of SPD’s written policies, which he may reject for reasons entirely unrelated to the contents of the Council’s ordinance.

Also, Section 4 says that SPD is required to produce revised policy drafts within 60 days of the ordinance taking effect; but different parts of the ordinance are written to take effect at different times, so which part is this referring to? If it’s Section 1, then there is a lovely circularity to the drafting of this ordinance: the directives that drive the approval process for Section 1 don’t take effect until Section 1 is approved. Obviously that doesn’t make any sense, but the Council’s ordinance is drafted so badly that it leaves significant questions as to the actual effective date(s).

In sum: the Council’s ordinance conflicts with the Consent Decree, it probably conflicts with the City Charter, and it’s a confusing mess as to when sections of it take effect. The Monitor and the DOJ won’t touch it, and SPD is caught in the middle between the City Council and Judge Robart. SPD’s response, in turn, has been to punt this over into 2022 — to Mayor-elect Harrell. Rebecca Boatright, SPD’s Executive Director of Risk Management and Legal Affairs, said in an interview that SPD’s next step isĀ  “to circle around with the next administration and seek guidance and direction from them as to what next steps the administration would have SPD take. And if that includes transmitting the language of the ordinance as written to the court in the form of a policy, then that is on the table. That said, SPD will state in submitting the policy to the court precisely what SPD has said in the prior documents on record: that SPD is transmitting this ordinance to comply with Council’s request, but SPD does not believe Council’s policy to be consistent with best practices or a data-informed approach.”

This will be an early test of Harrell’s ability to bring opposing parties to the table to compromise and find solutions. On the other hand, the Mayor and Council may decide to leave it alone until later in 2022 while several other related issues play out in the first part of the year:

  • The Office of the Inspector General is only partway through its “Sentinel Event Review” of the 2020 protests, and that process is expected to generate additional recommendations that the city might want to incorporate into future revisions of SPD’s policies;
  • The Monitor will be completing his assessment of SPD’s current compliance with the consent decree in early 2022, and that might also generate new priorities and recommendations for policy changes;
  • Labor negotiations are ongoing with both unions that represent SPD officers and supervisors;
  • The Washington State Legislature is expected to revisit in its January 2022 session two bills it passed in its 2021 session: HB 1310 and HB 1054, both of which concern law enforcement officers’ use of force and crowd-control tactics and will affect SPD’s policies.

In September, SPD issued a memo declaring that it believed no further revisions are needed to its use-of-force and crowd-control policies at that time, but that could easily change next year with all of these issues in play.

As if Mayor-elect Harrell isn’t inheriting enough issues — a pandemic, a homelessness crisis, public safety, a broken West Seattle bridge, and a staffing crisis at SPD — he will also quickly need to get the City Council and SPD to come to the table and find a common path forward on a policy for use of less-lethal weapons for crowd control. Given the distance between them, that will be no easy feat.

The office of Mayor-elect Harrell declined to comment on what guidance he planned to give SPD, other than to say, “The mayor-elect will review the status of the ordinance with legal counsel,” including the issues raised by SCC Insight in this report.

Thanks for reading!