By Paul Kiefer

Seattle Mayor Jenny Durkan refused to sign the city council’s recent ordinance restricting the Seattle Police Department’s use of crowd control weapons, allowing the bill to become law while the city awaits a federal district court’s go-ahead to implement changes to SPD’s tactics and arsenal.

In a letter to the council during their August recess, Durkan heaped criticism on the bill and the year-long process that produced it, calling it a “kneejerk reaction” to last year’s protests that overstepped the council’s authority, undercut SPD policy change procedures enshrined in the city’s agreement with the US Department of Justice, and made promises that the city can’t keep.

Durkan has routinely allowed legislation to take effect without her signature, though not always because of a difference of opinion: Certain land use ordinances, for instance, don’t necessarily go to the mayor for a signature before becoming law. The mayor can also return legislation to the council unsigned when she has concerns about a bill’s impact or legality but believes that the council would vote to override a veto.

The council’s bill, which passed unanimously in early August, bans officers from using “disorientation devices” like blast balls or ultrasonic cannons under any circumstances, with the exception of flash-bang grenades, which would still be available to SWAT teams. It also allows officers to use pepper spray and tear gas to move crowds of protesters, but only in response to a “violent public disturbance”—a legal term to describe violence committed by a group of twelve or more people. The legislation is supposed to replace a June 2020 ordinance that would have prohibited police officers from using tear gas, pepper spray, blast balls and other “less-lethal” weapons for crowd control.

Shortly after the 2020 ordinance passed, US District Court Judge James Robart—who oversees reforms to SPD as part of an ongoing agreement between the US Department of Justice and the city of Seattle known as the consent decree—issued a temporary restraining order that stopped it from taking effect. The order came in response to a warning from the US Department of Justice that any law preventing officers from using “less-lethal” weapons against crowds might lead officers to use more extreme forms of force.

When reworking the crowd control weapons bill to respond to the DOJ’s criticism, council public safety chair Lisa Herbold sought feedback from both the DOJ and the federal court-appointed monitor—the court’s eyes and ears in police reform matters. During a hearing on the status of Seattle’s consent decree on August 10, neither Robart nor representatives from the DOJ or monitoring team raised new concerns about the bill.

In a statement to PubliCola, Herbold’s office said that the new bill was “developed in compliance with, and respect for, the Consent Decree process.” Herbold also noted that she met informally with the court-appointed monitor and DOJ while re-working the bill and made adjustments based on their suggestions.

The bill doesn’t directly rewrite SPD’s policy manual. Instead, the department has 60 days from the bill’s passage to draft new crowd-control weapons policies that reflect the new law; the federal court will then consider whether those policy changes should move forward. If Robart concludes that SPD should not change its crowd control weapons policies, the law is effectively dead in the water.

In her letter, Durkan criticized the council for passing a law that can’t go into effect without the court’s approval—an arrangement, she wrote, of “doubtful legality.” And the requirement that SPD rewrite policies that reflect the new law, she wrote, places the department “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 Seattle City Attorney’s office reviewed and approved the legality of the bill.

In Durkan’s view, the ordinance is unlikely to survive a court challenge.

The ordinance, she argued, leaves SPD unable to make “agile” and “iterative” policy adjustments. Durkan said the ordinance could undercut a recent spate of crowd management policy changes—all approved by the federal court—that SPD implemented earlier this year, including the addition of pepper-ball launchers to the department’s crowd control arsenal. The ordinance allows SPD to use pepper ball launchers in narrow circumstances at protests, but not for moving crowds: a change spurred by Robart’s approval of the department’s policy revisions.

She also suggested that the council had sidelined the city’s police oversight agencies, and particularly the Office of the Inspector General (OIG), by passing the ordinance before the agencies complete their reviews of SPD’s response to protests in 2020. The ordinance does, however, roughly align with policy recommendations issued jointly by Seattle’s police oversight agencies in August 2020; in fact, the OIG and other accountability agencies—as well as SPD—appeared before Herbold’s committee during discussions on the bill.

If the DOJ and federal court prevent many of the ordinance’s provisions from taking effect, Durkan wrote that the bill will amount to a false promise. “This will undermine public trust, create confusion, and could hasten more departures from SPD,” she added—a reference to the fact that SPD, like police departments around the country, is facing a high rate of attrition.

But while Durkan assumes that the DOJ and federal court will take issue with the ordinance, that outcome isn’t a given. SPD will bring its draft policy revisions before the court in mid-October. If the DOJ believes the changes would violate the terms of the consent decree, it can ask Robart to enjoin the city from implementing the new policies. The DOJ declined to comment on the legislation itself on Tuesday.