Council Passes New Law Empowering City Attorney to Prosecute People Who Use Drugs in Public

Sara Nelson, Andrew Lewis, and Lisa Herbold all supported the legislation empowering City Attorney Ann Davison to prosecute drug users.

By Erica C. Barnett

On Wednesday, the Seattle City Council adopted a new law empowering City Attorney Ann Davison to prosecute people who use drugs in public, or who are caught with illegal drugs other than cannabis, on a 6-3 vote, with every council member except Teresa Mosqueda, Kshama Sawant, and Tammy Morales voting “yes.” The new law makes public drug use and simple possession gross misdemeanors for the first time in Seattle history.

An earlier version of the bill, which would have incorporated a new state drug criminalization law into the city’s municipal code, died on a 5-4 vote after Councilmember Andrew Lewis, a former city prosecutor, changed his mind in response to public testimony and Davison’s decision to unilaterally end a local therapeutic court called community court. The state law is as the “Blake fix” because it re-criminalized drug possession and public use after the state supreme court overturned an existing law that made public drug use and simple possession a felony.

The new version of the bill is significantly longer, but substantively similar, to the previous legislation. The new bill is significantly wordier, largely because it now includes more than 30 nonbinding “whereas” clauses stating the city’s intent to, among other things: Strongly recommend that police consider diversion before making arrests; avoid “repeating the mistakes of the past”; and review the impact of the legislation in the future.

The bill targets only people who use drugs in public, Councilmember Tammy Morales noted, targeting users who are poor or homeless while ignoring all the drug use that takes place behind closed doors. “If we wanted to address drug addiction, we would not be focused only on those who use it in the streets where we can see their suffering.”

It also contains new provisions saying police will, in the future, adopt policies governing when and how to divert people instead of arresting them, along with a section saying police “may” consider whether a person using drugs is harming others or just themselves when deciding whether to make an arrest.

Finally, the bill contains some reporting requirements and sets up a new committee to evaluate how the law is going in the future.

Proponents of the bill, with the exception of its original sponsor Sara Nelson, made a lot of all these nonbinding suggestions and reporting requirements. (Nelson wanted to eliminate the evaluation committee as well as a nonbinding recommendation that the police use officers who have received crisis training, who make up more than half the department, to respond to public drug use, saying both proposals infringed on the authority of Police Chief Adrian Diaz and Mayor Bruce Harrell. After other council members noted that Harrell’s office approved both provisions, a majority of the council voted down both of Nelson’s amendments.)

“This does not create new [police] authority. It seeks to limit it in a way that does not exist under state law,” one of the bill’s two sponsors, Councilmember Lisa Herbold, said. “This is a commitment to not repeat the errors of the past.”

Lewis, who co-sponsored the legislation with Herbold, said the bill was not intended to be “the magic solution that fixes the situation that we are facing,” but added that it “gives additional guidance and [a] focus on public health best practices that are alternatives to incarceration and entering the criminal legal system.”

Opponents of the bill pointed out that not only is that “guidance” nonbinding, the legislation comes with no additional funding to implement diversion or treatment; instead, Councilmember Teresa Mosqueda said, it offers a “hollow promise” of alternatives to arrest. Under the council’s regular process, the legislation would have been on the agenda for next week, coinciding with Harrell’s 2024 budget proposal, which will reveal how much, if any, funding Harrell will propose for expanding diversion programs such as LEAD, which is already oversubscribed for this year.

“So while the emphasis is on pre-arrest diversion and not arrest, we are not actually able to follow through with that without assurances that [these strategies] will be in the budget,” Mosqueda said.

Mosqueda, who chairs the council’s budget committee, also noted that Harrell’s “plan to invest $27 million toward facilities, treatments, and services to address the opioid crisis” is not actually a new $27 million investment. Instead, that number includes $7 million in unspent capital grants that will fund a new DESC overdose recovery site on Third Ave., as PubliCola exclusively reported last month, among other investments, plus an average of about $1 million a year from statewide settlements with opioid manufacturers and distributors, spread over the next 18 years.

Additionally, Harrell can’t actually commit that future money (whose value will depreciate with inflation over time), because the city allocates funding annually through the budget, so the money—which does have to be spent on purposes related to drug addiction—could pay for other things in the future.

Tammy Morales’ challenger Tanya Woo held a rally outside City Hall before the vote. The legislation, she acknowledged, isn’t perfect, but at least it “does something” to address public drug use in places like 12th and Jackson, in the Chinatown/International District.Councilmember Tammy Morales—whose challenger in this year’s election, Tanya Woo, held a rally with Chinatown/International District residents outside City Hall to highlight Morales’ opposition to the bill—said the legislation was “ineffective… unnecessary, and dare I say, performative.” The bill targets only people who use drugs in public, Morales noted, targeting users who are poor or homeless while ignoring all the drug use that takes place behind closed doors.

“If we wanted to address drug addiction, we would not be focused only on those who use it in the streets where we can see their suffering. We would be standing up real alternative for everyone,” like medication-assisted treatment, counseling, social supports, residential treatment, and walk-in clinics, Morales said.

The bill mentions many of these things—identifying “treatment” as a preferred approach, for example, in ten different places—but does nothing to make it happen. Instead, it doubles down on a law enforcement-based approach to a public health crisis.

9 thoughts on “Council Passes New Law Empowering City Attorney to Prosecute People Who Use Drugs in Public”

  1. For all of Teresa Mosqueda’s complaining about Bruce Harrell not adding new money, she seems to forget that SHE, Teresa Mosqueda, is Chair of the Budget Committee. If she wants money for treatment and diversion, she can include it in the budget. It might mean taking away from other city spending, but the City never seems to be able to suddenly find $3 million here, $100 million there to throw at nonprofit groups doing some vague community effort.

  2. The road to hell is paved with good intentions… Any “law” that allows police descretion, (“Strongly recommend(s) that police consider diversion before making arrests,”) is ripe for selective enforcement, and which, historically across the country, have targeted people of color as well as been found unconstitutional. I simply call it bullshit because the SPD has proven time and time again that many of their officers aren’t mature enough to make even more simple decisions.

    And, as already mentioned in the article, there is no funding provided for any of this; the King County Jail won’t even bother to book these people, the Department of Public Defense is already woefully overburdened, Seattle Municipal Court is already at capacity and Seattle Municipal Court probation is as well.

    Did any of these idiot Council members think about what this “law” looks like on ground level? Any conviction will include standard probationary periods with restrictions like “Obstain from alcohol & drugs,” which means that these same people that are already burdening the jails & courts are going to double or triple that burden.

    I don’t like watching people smoking fentanyl but I hate idiot Council members making idiotic laws worse…

  3. Again, what is your objective function? The general public wants to use parks and public spaces without some useless junkie/tweaker shooting/blazing up then shouting at passerby/harassing people/running in traffic, etc… It isn’t “hide the problem”, it’s “I don’t give a rats patootie if you want to ruin your life, just don’t ruin everyone else’s too”. OTOH, is the lefty “I want to see the maximum misery to heighten the contradictions until the middle class coughs up lots of money for this”. NOTE – No, the rich will stay off the hook with no income taxes, and protected behind gates and private security.

    Complain all you want about the twagic inequities, the majority of the general public is just sick of junkie losers ruining public spaces, stealing, and harassing people.

    1. I’d rather share public spaces with ‘junkie losers’ than people who call citizens in our community ‘junkie losers’. It is the latter group the general public is truly sick of.

      1. Those folks can camp in places where they aren’t a giant pain in the ass, and can also expect to have to move a little more often once they do become a pain in the ass. Sorry if that’s harsh, but even the Boise ruling (which will likely ultimately be overturned) doesn’t mean that you get to park you and as much stuff as you want wherever you want for as long as you want. It just doesn’t.

  4. Something for everybody here, eh? For those who are sick to death of seeing people harm themselves doing drugs on the streets for all to see, we have a vaguely worded ordinance full of loopholes so that nothing will change. For those who don’t want to see people prosecuted for pursuing their addiction in public, we have the same vaguely worded ordinance full of loopholes so that nothing will change. And just to be sure that remains the case, we have an illusory $27 million budget where the money is not dedicated to any purpose related to this issue, and where it can be diverted to other uses, presumably at the whim and the will of the council. Wow! Way to accomplish nothing and waste our time and money.

    1. People are tired of letting drug addicts do whatever they want whenever they want. Allowing this is what put Trump as close as he got to getting re-elected, and in the real world this a centrist position. Herbold is NOT a conservative, but clearly has a stronger grip on political reality than you do.

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