By Erica C. Barnett

US District Court Judge Marsha Pechman issued an injunction yesterday barring the city of Seattle from enforcing its ban on graffiti in a case stemming from protests against police violence in early 2021. In the order, Pechman writes that the four plaintiffs—who wrote in “ordinary charcoal and children’s sidewalk chalk: on a temporary concrete wall outside SPD’s East Precinct—were “likely to prove that the Ordinance… violates the First and Fourteenth Amendments by being both vague and overbroad.”

The chalked messages included, among other slogans critical of police, “peaceful protest,” “Fuck SPD,” and “BLM.”

Seattle’s municipal code says a person is guilty of “property destruction,” a gross misdemeanor punishable by up to 364 days in jail, if “he or she… [w]rites, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person.”

On Wednesday evening, the city and plaintiffs agreed that the injunction only applies to the part of the property destruction law that pertains to graffiti.

In her injunction, Pechman wrote that the current law threatens people with arrest for exercising their right to free speech under the guise of “preventing even temporary visual blight,” as the city attorney’s office wrote in its defense of the law.

“On its face, the Ordinance sweeps so broadly that it criminalizes innocuous drawings (from a child’s drawing of a mermaid to pro-police messages written by the Seattle Police Foundation that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm,” Pechman wrote. As written, Pechman continued, the law could allow police to arrest people for “attaching a streamer to someone else’s bicycle or writing a note of ‘hello’ on a classmate’s notebook without express permission.”

“While there is allegedly a policy not to arrest children drawing rainbows on the sidewalk, the Ordinance itself allows the police to do just that and to arrest those who might scribe something that irks an individual officer,” Pechman wrote. In other words, the law as written allows officers to arbitrarily decide what speech is illegal based on their own personal views.

“Although the Ordinance also criminalizes ‘property destruction,’ it equally targets speech. As such, it has a close enough nexus to expression that it poses a real and substantial threat of censorship.”

The lawsuit was filed by four people who were arrested outside the East Precinct in Capitol Hill on January 1, 2021, a time when the precinct was surrounded by large temporary walls made of concrete “eco-blocks.” According to the lawsuit, the plaintiffs—Derek Tucson, Robin Snyder, Monsieree de Castro, and Erik Moya-Delgado—were arrested in retaliation for criticizing SPD, in violation of their First and Fourteenth amendment rights protecting free speech and due process.

The lawsuit gives several examples in which the police department has encouraged and even participated in sidewalk-chalk events when they approved of the message.

For example, police participated in a Seattle Police Foundation event in 2017 where supporters chalked “WE ♥ SPD” in huge letters on public sidewalks, and chalked pro-police messages such as “LIBERTY IS ESSENTIAL” and “DEFEND SPD” on the ground outside City Hall during a “Back the Blue” rally in July 2020. 

Additionally, in 2015, SPD’s official Twitter advised a comedy festival organizer that “the use of sidewalk chalk doesn’t constitute graffiti.”

Mayor Bruce Harrell has focused heavily on graffiti as part of his plan to “beautify Seattle,” promising in 2022 to “increase enforcement of graffiti offenses, striking a balance with larger penalties for the most prolific taggers and expanded diversion options for low-level offenders.” That year, the city arrested two “prolific” taggers who they accused of causing more than $300,000 in property damage under a separate “malicious mischief” law that remains in effect.

Harrell also attempted, unsuccessfully, to add more than $1 million last year’s budget to set up new teams of city employees to respond to graffiti.

In a statement, Harrell’s office said he “remains committed to swift and sustainable action to prevent and remove graffiti and property damage through a comprehensive One Seattle Graffiti Plan—focused on a holistic strategy to break the cycle of tagging and abatement through law enforcement, community engagement, artistic expression, and collaboration. We will continue to activate our neighborhoods with positive, community-led art and abate actively harmful and malicious tagging including hate speech.”

City Attorney Ann Davison’s office said they would file a motion asking Pechman for an expedited reconsideration of her order, and that the office “will not be filing property destruction charges under this law for the time being.”

SPD issued a statement Wednesday afternoon saying they have no choice but to abide by the injunction. “We know, as evidenced by the thousands of calls for service we receive each year reporting acts of vandalism and other forms of property damage that property damage is, in fact, a crime that is of significance to community members,” the statement said.