By Erica C. Barnett

Nearly three years after the Seattle City Council passed legislation that constrained the Seattle Police Department”s use of  “less lethal” weapons during protests and required SPD to come up with a new crowd-control approach, SPD continues to operate under a policy that is out of compliance with that law.

The council passed the less-lethal weapons bill in 2021, after a federal judge concluded that an earlier, more restrictive version of the legislation might violate a longstanding consent decree between the city and the US Department of Justice. The 2021 law instructed SPD to come up with a new crowd control policy that complied with the law within 60 days. Instead, the department ignored the requirement until last December, when it submitted a proposal to the court monitor overseeing the consent decree.

Accompanying the policy: A memo from SPD denouncing their own proposal as “dangerous” and unworkable and asking the court to instead approve the department’s existing “interim” crowd control policy, which does not ban or substantially restrict the use of a single less-lethal weapon.

“SPD believes that [the legally compliant] policy is not grounded in best practices, would compromise public safety, and would unnecessarily endanger SPD employees,” the memo, written by SPD’s chief operating officer Brian Maxey, says. “SPD has drafted the ordinance policy, which is attached to this  submission, but completely disavows that policy.”

The department’s defiance leaves the 2021 law in limbo. As the city works through the remaining vestiges of the 2012 consent decree—among them, the crowd control policy—DOJ and court monitor are unlikely to force SPD’s hand. Meanwhile, a majority of the new city council has gone out of their way to demonstrate that they see themselves as SPD’s cheerleaders, not critics.

The draft policy SPD “disavows” would go much further than the largely toothless “interim” policy SPD adopted last year, by banning the use of blast balls, limiting the use of pepper spray and tear gas, and restricting the use of 40-millimeter chemical launchers, tear gas, and “flash-bang” grenades to trained SWAT team officers.

It would also reduce SPD’s ability to use a specific list of less-lethal weapons for crowd control during demonstrations and protests, restricting their use to “violent public disturbances” in which a crowd of 12 or more people are using, or threatening to use, physical violence.

In its memo, SPD argued that adopting any crowd control policy through legislation—especially these particular policies—would impede officers’ ability to act nimbly in dangerous situations and would lock the department into rigid rules that could only be changed through new legislation. The department also argued that if they adopted a policy consistent with the 2021 legislation, they’d have no ability to control violent crowds, use less-lethal weapons to respond to property destruction, or “rescu[e] victims in a crowd.”

SPD  alsocontends that the ordinance would prevent them from using most less-lethal options to move crowds in situations that fall short of the “violent public disturbance” standard, essentially forcing them to fall back on striking people with batons and shoving them with bikes.

The department made a similar argument in response to the original law back in 2021, arguing that it would render them helpless to respond to violent demonstrations or address individual acts of violence in crowds.

The sponsor of the 2021 legislation, former city council member Lisa Herbold, says this claim is false, because the ordinance only defines certain weapons as “less lethal,” while still allowing police to use weapons like Tasers and sponge-tipped 40-millimeter rounds to respond to violent situations in crowds. A council memo about the legislation includes a table describing the situations in which police could and could not use different types of less-lethal weapons under the ordinance.

Shortly before the end of her term last year, Herbold wrote a point-by-point rebuttal to SPD’s memo.

“The idea that SPD’s only recourse under the less lethal weapons regulations … is to disengage if a group smaller than 12 people is threatening to use unlawful violence, seems to discount the value that SPD places on de-escalation” and their ability to use other weapons that aren’t in the ordinance, Herbold wrote.

SPD argues that they’ve improved their crowd control policies even without the ordinance. “SPD has continued to refine and develop its Crowd Management policy while this process continues,” an SPD spokesperson told PubliCola, “and is proud of its success in managing often contentious and polarizing free speech events based on lessons learned from 2020 and consultation with international experts.”

In February, however, the Stranger reported that police dispersed a nonviolent pro-Palestine demonstrators on the downtown waterfront using pepper balls —one of the weapons that would not have been available for crowd control if SPD had adopted a policy in line with the 2021 ordinance.

Herbold’s memo to SPD concluded with a plea for the court to reject SPD’s request that it review the interim policy and ignore the one drafted in response to the law.

“SPD seems to be asking the Court to ‘double-down’ on limiting the democratic legislative process by suggesting that the Court review only SPD’s existing Interim Policy, and not the policy that incorporates the requirements of the ordinance,” Herbold wrote. “SPD’s request is that the Court not only limit the Council’s legislative authority in an area covered by the Consent Decree, but, in practice, eliminate it.”

Antonio Oftelie, the court monitor overseeing the consent decree, told PubliCola that his office and the DOJ have decided to step back and see if SPD, working with the mayor and new city council, can come up with a policy in the first quarter of this year that complies with the consent decree and is something all sides can live with.

“This represents an opportunity for the City to develop complex policy without federal and Court supervision,” Oftelie said. “Ideally, the City will develop a crowd management policy that ensures Constitutional rights to speech and expression and protection of life and property, as well as design tactics that are feasible to implement by the police department.”

Herbold told PubliCola the monitor should review the policy SPD submitted on the merits, rather than punt the issue back to the city. In 2021, she said, the council sought outside legal advice about how they could force SPD to develop the policies required by the law, but did not take action because they “wanted to try and work in good faith towards SPD fulfilling this legal requirement.” Now she said, “I’m left wondering whether the consent decree has been successfully weaponized to completely undermine the authority of the legislative branch and is now rewarding SPD for their failure to adhere to the rule of law.”