City attorney Ann Davison announced Monday that the city has filed an amicus brief asking the US Supreme Court to overturn a Ninth Circuit District Court ruling that restricted the ability of Grants Pass, a city in southwestern Oregon, to criminalize sleeping in public places. In a statement, Davison said Johnson v. Grants Pass “strips local authority from a complex problem” and denies “local autonomy” to cities like Seattle.
Under a separate Ninth Circuit ruling called Martin v. Boise, cities are not allowed to remove homeless people from public places in most circumstances unless there is shelter available. In the Grants Pass ruling, a panel of three Ninth Circuit judges agreed with lower courts that the city’s anti-camping ordinance, which imposed fines and criminal penalties for sleeping in public and banned homeless people from using items like blankets, cardboard boxes, and pillows, is unconstitutional.
The brief—which was also joined by the National League of Cities, the North Dakota League of Cities, Colorado Springs, San Diego, and about a dozen other cities across the country—argues that by restricting cities’ authority to ban sleeping in public, Martin and Johnson “compel local governments to choose between providing shelter or surrendering public lands to encampments that harm local communities.”
The city of Seattle, in other words, is arguing that Seattle should be able to sweep homeless people without the city having to “choose” to provide them places to go.
Additionally, they are arguing that calling unsheltered people “involuntarily homeless” grants a special status on people who are, in reality, engaging in a voluntary behavior by sleeping outdoors, much as an alcoholic who is caught being drunk in public has chosen to drink of his own volition. (This is from a real Supreme Court case from 1968, whose conclusions many modern addiction experts would probably dispute).
Seattle has its own ban on sleeping in public that allows sweeps in two general situations. In some cases, the city gives people living in an encampment 72 hours’ notice that they have to leave the area, then offers shelter to the people who remain. This, in theory, meets the requirements of Martin—even though, as many advocates for unsheltered people have pointed out, the city’s “offer” may be for shelter that is across town, requires a person to abandon their spouse or partner, or is inappropriate for a person’s behavioral or physical health conditions.*
Many people decline to “accept” these untenable shelter offers, which has caused city to suggest the real problem is people “refusing” shelter, rather than a lack of appropriate shelter and housing. “A 2021 study in Seattle found that offers of shelter were declined 52% of the time,” the brief notes, echoing these perennial claims. “Undoubtedly, sleeping outdoors can afford more freedom and autonomy than congregate sleeping arrangements. But this also shows that, at least for some people sometimes, personal decisions and preferences can play a role in whether someone continues to be unsheltered.”
The brief even suggests that rules banning encampments are like city zoning laws that prohibit certain uses in residential areas, citing a 1974 Supreme Court ruling (on frat houses, of all things) that allowed to establish “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Unsheltered people, according to the brief, “directly undermine these legitimate aims and turn zoning schemes into hollow promises.”
In recent years, it’s become common for the city to exploit a loophole in the rules governing encampment sweeps to remove people and throw away belongings, such as tents and survival gear, without notice. In these case, the justification is that any person or object occupying a public space, including remote areas of public parks, constitutes an “obstruction” to the public’s use or potential use of that space. Earlier this year, a King County Superior Court judge ruled this interpretation of the city’s rules unconstitutional on privacy grounds; Davison immediately appealed that case, and the sweeps continue.
The city’s argument, as expressed in the brief, is a muddle of conflicting perspectives. The brief argues that requiring cities to choose between sweeps and shelter for every homeless person is an unconstitutional imposition; cities already spend hundreds of millions of dollars on homelessness, but the problem is only getting worse, which shows that spending money isn’t going to fix the problem. Since that’s the case, the brief continues, cities should be allowed to sweep encampments using whatever criteria they deem necessary, because encampments “monopolize common spaces like parks and sidewalks” and create “enormous volumes of garbage, human waste, and other health hazards like used needles.”
“A town that is not allowed to keep its sidewalks clear and parks open is not really a town at all. It is just a cluster of people living close together,” the brief concludes.
The brief even suggests that rules banning encampments are like city zoning laws that prohibit certain uses in residential areas, citing a 1974 Supreme Court ruling (on frat houses, of all things) that said cities could establish “zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people.” Unsheltered people, according to the brief, “directly undermine these legitimate aims and turn zoning schemes into hollow promises.”
“A town that is not allowed to keep its sidewalks clear and parks open is not really a town at all. It is just a cluster of people living close together,” the brief concludes.
If the Supreme Court takes up the case, it could overturn rules specific to the Ninth District that make it harder for cities to simply sweep homeless people from public places. But even if Seattle wins the right to sweep people with impunity, it won’t change a basic reality: Homeless people don’t stop existing—and needing to sleep, eat, discard trash, and use the restroom— just because cities pass bans on sleeping and deny them access to resources, like trash cans and indoor plumbing, that the rest of us take for granted.
*Other programs exist that do route people to appropriate shelter, services, and housing, but these involve extensive outreach and engagement, and are generally separate from the city’s encampment removals.
The Seattle City Council narrowly rejected Councilmember Andrew Lewis’ proposal to fast-track a bill empowering City Attorney Ann Davison to prosecute people for drug possession and public use, voting to allow the bill to go through the regular committee process. The impact of the vote is that the council will take up the bill after they return from the regular August recess, allowing council staff the time to draft amendments and analyze the latest version of the legislation.
Councilmembers Sara Nelson and Alex Pedersen introduced the first version of the drug criminalization bill last April, after the state adopted legislation making drug possession and public drug use a gross misdemeanor. Initially, Lewis voted against the legislation, citing Davison’s unilateral decision to abandon Seattle Community Court, but he has since become one of the bill’s most vocal advocates, arguing that the work of Mayor Bruce Harrell’s fentanyl task force will produce policy and legal alternatives to the traditional arrest-and-prosecution system.
While the bill says diversion and other options are the “preferred” alternatives to arrest, it does not require diversion or lay out the kind of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop “guidance on diversion” as part of policies that will “state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations.”
The latest version of the bill includes 13 additional “whereas” clauses, along with eight new findings about the state of the drug crisis in Seattle. It also adds a new section to the Seattle Municipal Code stating that, in the future, police will adopt policies governing arrests for drug possession and public drug use, and that those policies will state that alternatives like diversion and treatment “are the preferred approach” when police make arrests under the new law.
At a committee meeting to discuss the drug criminalization bill Monday afternoon, council members discussed several issues with the legislation that PubliCola pointed out two weeks ago.
First, while the bill says diversion and other options are the “preferred” alternatives to arrest, it does not require diversion, provide funding for alternatives to arrest, or provide examples of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop “guidance on diversion” as part of policies that will “state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations.”
Beyond this, the ordinance delegates to individual officers the authority to decide whether a person poses a threat, based on “the totality of the circumstances and the officer’s training and experience,” which is essentially the current system, augmented by some new training on what constitutes a drug-specific threat.
“The standard mirrors the practical thought process that officers ordinarily apply in the field when deciding whether to make an arrest, and it allows for it encourages officers to exercise discretion,” mayoral advisor Andrew Myerberg told the council. If a person is only a “threat to self,” the bill says officers should “make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives,” but leaves that decision, too, up to individual officers.
“The fundamental goal of this ordinance and executives overall approach to the synthetic opioid crisis is to increase the proportion of individuals suffering from addiction who seek and accept treatment services,” Myerberg said.
Councilmember Teresa Mosqueda pointed out the obvious: The mayor’s office has not proposed funding for addiction, treatment, or diversion programs. “It seems important that the resources be sufficiently invested into the alternative strategies so that people are not being given a false promise that there will be a diversion strategy [but] we don’t have those resources,” Councilmember Teresa Mosqueda said. “And where will that funding come from?”
The law does not address private use of illegal drugs inside people’s homes.
Second, while Harrell has stated (and mainstream media outlets have inaccurately reported) that the bill includes $27 million for treatment and other alternatives to arrest, the bill never mentions money or spending priorities. In fact, as council budget chair Teresa Mosqueda noted repeatedly on Monday, the “new” $27 million is a combination of $7 million in grant funding the city didn’t spend in previous years, plus $1 million a year from two state settlements with opioid manufacturers and distributors. Harrell has indicated he wants to use the money to stand up and staff the proposed opioid response center he announced in April. That would leave no additional funding for programs like LEAD, REACH, and We Deliver Care, to which Myerberg said police could direct people who break the new law.
“When I’m talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on [officers. Personally I believe that the council should have incorporated state law, and then if some council members and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance.”—Councilmember Alex Pedersen
At Monday’s meeting, Pedersen and Nelson raised concerns that the bill would create ambiguity and introduce new challenges for police officers that would make it harder for them to do their jobs.
“When I’m talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on” officers, Pedersen said. “Personally, I believe that the council should have incorporated state law into our Seattle Municipal Code and then if some council members and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance.”
Myerberg said the legislation isn’t “asking [officers] to reinvent the wheel.” While it is Harrell’s “intent” to steer people toward diversion and treatment, officers will still get to make the calls they consider appropriate in all cases, including arrest if they believe it’s necessary to prevent harm or get someone to go into treatment or crisis care. “[Harrell is] asking them to do what they already do,” Myerberg said. “The executive remains clear that such a decision will be within the discretion of the officer. It will be fact-specific and individual-dependent.”
In late July, the Seattle Police Officers Guild “applauded” the new legislation, saying it would help “restor[e] public safety to the city.” This suggests that, at the very least, SPOG —which has a history of opposing substantive police reforms—does not expect the bill to cause major disruptions to officers’ usual way of doing business.
Including a preference for diversion in the police manual could lead to incremental change. But without significantly more funding, it’s unlikely to result in different outcomes, either for people using drugs in public or the general public witnessing public drug use.
Myerberg noted Harrell’s personal commitment to encouraging alternatives to arrest and prosecution, which stem partly from his direct experience as a Black man growing up in Seattle during the drug war. But intent is not the same thing as law; mayors come and go, and their lasting impact isn’t meaning well, but pushing through tangible, legally binding changes that last longer than a single administration.
1. Last Friday, a state appeals court issued a ruling staying any enforcement of a King County Superior Court decision finding Seattle’s rules on “obstruction” encampment removals unconstitutional. The city defines an “obstruction” as any encampment, tent, person, or property that is located in virtually any public space, including remote areas of public parks. The stay comes in response to an appeal filed by City Attorney Ann Davison’s office on Friday, and allows the city to continue its practice of no-notice sweeps, which have ramped up dramatically under the Harrell Administration. Attorneys for the plaintiffs in the case have until August 11 to respond to the city’s appeal.
As we reported last month, two formerly homeless people, Bobby Kitcheon and Candace Ream, sued the city, with the help of the ACLU of Washington, after the city subjected them to repeated sweeps. According to the lawsuit, both Kitcheon and Ream lost all their possessions, including irreplaceable family mementos as well as IDs, insulin and other medications, and food, each time the city arrived to remove their tents from a new location.
In his order, Superior Court Judge David Keenan found that the city’s rule violates people’s privacy and constitutes “cruel punishment” under the state constitution because the city’s definition of “obstruction”—which includes any tent or person sleeping in any area of a public park, for example—”allows the City to move unhoused people who are not actual obstructions, without offering unhoused people shelter.” Under a Ninth Circuit ruling called Martin v. Boise, cities are not allowed to remove homeless people from a location without offering them shelter except in certain circumstances, including when a tent or person is blocking others from using a public space, such as a sidewalk.
The city’s appeal of the superior court ruling rests on the argument that the city’s rule allowing no-notice removals of encampments when they are “obstructions” can’t be “facially” invalid—that is, unenforceable on its face— because the rules can be applied constitutionally; in other words, because there are cases where a tent is actually obstructing the public use of a space, such as a sidewalk, the city is claiming the law can’t be invalid in its entirety.
The city attorney’s office, using outside attorneys, is also arguing that because the two plaintiffs are now housed and were never subject to civil or criminal charges, they lack standing to challenge the city. It’s worth noting that as a matter of practice, the city does not fine or charge people for sleeping in public; instead, it conducts sweeps.
Additionally, according to the city’s appeal, “even if respondents had standing, Mr. Kitcheon and Ms. Ream were not involuntarily homeless because they were repeatedly offered shelter by the City and voluntarily left City-funded shelter.” As we have reported many times, people often decline shelter or leave the shelter beds the city assigns them because the beds are not appropriate for their circumstances; in Kitcheon’s case, according to the lawsuit, the only shelters that were generally available were single-gender and would have forced him and his wife to separate.
Davison’s office also argued that people have no right to privacy inside their tents when those tents are located on public property. PubliCola is not a lawyer, but this does raise an obvious question about how far the city’s right to invade people’s personal space extends.
Over the weekend, for example, housed people camped out along Lake Washington during Seafair; would Davison claim a right to send workers to barge into those tents and seize everything inside them, since they are, according to the city’s own rules, obstructing the use of public space? Or does the city’s “heightened interest in protecting the health and safety of the community (both housed and unhoused) and accessible use of public property and rights of way” only apply when the people camped out in public space have nowhere else to go?
2. PubliCola has received the second of 10 “deliverables” provided by former KCRHA director Marc Dones as part of their ongoing, $60,000 contract with the city of Seattle, which involves researching how Medicaid funding might be used to pay for homeless services.
The document, which—according to Dones’ contract—represents 10 hours’ worth of work, is a spare timeline and 375-word summary of the work Dones is supposed to do, including “framework development,” interviews with stakeholders, and “iterating the framework report” with Harrell’s office. The city is paying Dones through December.
As we’ve reported, Dones left the KCRHA at a time when many agency staffers and government officials with oversight authority over the agency had begun to express a lack of confidence in their leadership. The contract is worth three months’ salary for Dones—the minimum they would have been likely to receive in severance if they had been fired instead of leaving voluntarily.
Mayor Bruce Harrell’s proposal to reintroduce a local drug criminalization ordinance has been widely described as a “plan to combat opioid addiction” that would—as the Seattle Times put it—”[c]ommit $27 million toward enhanced treatment facilities, new addiction services and improved overdose response.”
But this characterization is misleading. For one thing, the $27 million includes no new funding. For another, that total includes both one-time spending and a small annual allocation from last year’s state opioid settlement that will trickle in over the next 18 years.
Of the $27 million, $7 million consists of leftover federal Community Development Block Grant funding that the city did not spend in previous years—a one-time allocation that Harrell’s spokesman, Jamie Housen said will provide “capital funding to prepare existing facilities to provide care and treatment services for substance use disorders.”
Of the $27 million, $7 million consists of leftover federal funding that the city did not spend in previous years. The rest is the total amount the city estimates it will receive from the statewide opioid settlement over the next 18 years—a little over $1 million a year each year, on average, through 2032.
The rest, $20 million, is the total amount the city estimates it will receive from the statewide opioid lawsuit settlement over the next 18 years—a little over $1 million a year each year, on average, through 2032. That’s less than seven-hundredths of one percent of the city’s general-fund budget, and about three-tenths of one percent of the Seattle Police Department’s budget.
Housen said the $1.1 million a year will go toward “programs addressing addiction and improving our treatment and service provision systems.”
Those are surely worthy goals (spending on any kind of treatment or social service is almost certainly better than further criminalizing addiction), but they do not amount to the “enhanced treatment facilities, new addiction services and improved overdose response” Harrell announced his plan would pay for. Nor is the opioid settlement funding new; we’ve been reporting on what it will mean for Seattle, and how the state has directed cities to spend the money, since last year.
So what does the bill actually do? Exactly what an earlier version of the bill, which the council rejected 5-4, would have done: Empower City Attorney Ann Davison to prosecute people for simple drug possession or for using drugs, except alcohol and marijuana, in public. The substantive portion of the bill, which comes after nearly six pages of nonbinding whereas clauses and statements of fact, is identical to the previous proposal.
In addition, and less substantively, the bill directs the Seattle Police Department to adopt policies governing arrests under the new law, and says that these future policies must “state that diversion and referral to services is the preferred 2 response to possession and public use while acknowledging that arrests are warranted in some situations,” including situations that threaten any person’s safety.
Harrell’s task force on addiction, which includes subgroups that are discussion diversion, treatment, and the role of the municipal court, continues to meet. According to Housen, the groups are focusing on “court systems, arrest and pretrial diversion, and treatment programs” and “are tasked with advancing efforts to improve connections between systems, map and identify gaps in diversion programs, and strengthen partner coordination.”
1. In a last-minute endorsement (of sorts), Seattle City Attorney Ann Davison sent out a mass email on Saturday urging voters to support the city council candidates who have consistently supported legislation—which will almost certainly pass later this summer—that would empower her to prosecute drug users for simple possession and for using drugs, other than alcohol and marijuana, in public. The law would incorporate a new state law into city law, granting the city attorney the authortiy prosecute misdemeanor-level drug use and possession.
The letter painted an apocalyptic picture of the city where Davison serves as chief local prosecutor.
“Parents should be able to take their kids on the bus without inhaling plumes of fentanyl smoke. We all should be able to walk in our parks and sidewalks without stepping over needles and drug paraphernalia. We should be able to get to work without dodging a gauntlet of drug deals,” Davison wrote.
“Unfortunately, some members of City Council voted not to allow Seattle to adopt our new State law on drugs. For me to have authority to prosecute and intervene, the new state law must be put into our city code by City Council.”
Although Davison’s letter, sent from her campaign email address, claims the proposed law would empower her to “intervene” in drug users’ cycle of addiction, the law itself is silent on intervention and diversion. In reality, according to a city council staff analysis, the legislation only gives the city attorney the authority to prosecute.
The city council candidates who unequivocally said yes to a Seattle Times survey question about prosecuting drug users, according to a survey conducted by the Seattle Times, are, in order of district: Rob Saka and Phil Tavel (District 1); George Artem and Ken Wilson (District 4); Boegert Bibby (District 5); Pete Hanning, Victoria Palmer, and Shea Wilson (District 6); Bob Kettle, Olga Sagan, Aaron Marshall, Wade Sowders, and Isabelle Kerner (District 7). District 7 incumbent Andrew Lewis also told the Seattle Times he supports prosecuting drug users, but because he cast the tie-breaking vote against the bill before saying he would support it, he does not meet Davison’s criteria.
2. Meta attorney Rob Saka, a frontrunner in District 1, may be the primary beneficiary of billboards and mailers advertising Eltana Bagels, the company founded by another D1 candidate, Stephen Brown. As we’ve reported, Brown has insisted the mailers and billboards, which look strikingly similar to his campaign materials, were just ordinary advertising for the Montreal-style bagel stores.
That didn’t stand up to scrutiny by the Seattle Ethics and Elections Commission, however: The mailers, which featured the phrase “Seattle Deserves Better…—Stephen Brown” and offered $25 in free bagels, look like campaign literature, and the billboards—which also featured Brown’s name—were mostly located in District 1, which does not have a single Eltana store. After conferring with Ethics and Elections director Wayne Barnett, the Brown campaign filed an amended campaign report that included $33,000 for the West Seattle portion of the mailing and billboards.
Last week, the ethics commission went even further, voting—in response to a request from Saka—to allow him to raise and spend more than $93,750, the maximum allowed under Seattle election law unless another candidate goes above the spending cap. Ordinarily, this happens when a candidate’s own campaign spending, plus independent expenditures on their behalf, breaches the cap, but the city also allows candidates to spend more than the mandatory maximum if another candidate violates election law.
Ironically, Saka himself has already benefited from tens of thousands of dollars in spending from an independent expenditure campaign backed by real estate moguls and a Trump-donating billionaire, putting him over the limit himself. Maren Costa, a labor-backed candidate, requested a lift on the cap for her own campaign and received it last week.
Because last week’s hearing was about Saka’s motion to lift the cap, the Brown campaign’s $33,000 valuation for the mailers was not in question. The commission will likely seek a new valuation, but hasn’t yet, so as of now, the old, under-the-limit valuation stands. This creates a bizarre Schrödinger’s cap situation in which the Brown campaign has both spent more than the legal limit (according to the ethics commission) and is within the limit (according to the commission’s executive director and the campaign itself).
A task force convened by Mayor Bruce Harrell to come up with proposals to address illegal drug use in public spaces has been meeting for several weeks to discuss how Seattle’s court system can address a potential influx of cases from the City Attorney Ann Davison’s office. This summer, the council is expected to pass a new law empowering Davison’s office to prosecute people who use drugs in public by aligning Seattle’s municipal code with a new state law making public drug use or simple possession a gross misdemeanor, rather than a felony.
The city council rejected the proposal last month; Councilmember Andrew Lewis, who cast the deciding vote, plans to bring the measure back this summer and vote for it, a switch he says he feels comfortable making now that the task force’s work is underway. Only one of three sub-groups had met as of last week: The one focused on how the court will respond to a potential influx of new drug cases.
After just a couple of meetings, there appears to be broad consensus (with one exception that I’ll get to in a moment) in favor of expanding the Vital program, which provides intensive services to people with behavioral health issues, including addiction, and LEAD, a program run by Purpose Dignity Action (formerly the Public Defender Association, or PDA) that offers services and case management to people before they are arrested.
Even Davison, who unilaterally withdrew the city from community court earlier this year—ending a program that allowed some people to avoid charges by participating in short-term programs—is reportedly open to expanding programs that divert drug users away from jail.
The idea, according to Councilmember Andrew Lewis, is to focus on “things that fall way short of the court” level and “keep things as far away from the court as possible,” since the court has essentially no extra capacity to take on a flood of new drug cases.
The task force includes representatives from Davison’s office, the PDA, Seattle Municipal Court, and—since last week—the King County Department of Public Defense, which was excluded from Harrell’s initial list.
The group, according to Lewis, generally agrees the city should focus on “things that fall way short of the court” level and “keep [cases] as far away from the court as possible,” since Seattle Municipal Court has essentially no extra capacity to take on a flood of new drug cases.
“This conversation is really laying bare that a lot of policy discussions are based on assumptions that aren’t true,” Lewis said. “It really did call out that we could arrest everyone downtown for smoking fentanyl and the King County Jail wouldn’t be able to book them—so where does that leave us?”
The exception to this consensus, according to multiple sources, is City Councilmember Sara Nelson, who has expressed support for a new local misdemeanor drug court that would push people into long-term treatment instead of diversion or services based on harm reduction, such as medication assisted treatment and focused case management. Nelson—who has objected to funding PDA-run programs in the past—supports an abstinence-only approach to addiction and has argued that programs that provide methadone and suboxone to opiate addicts are “not aimed at long-term recovery.”
King County has a special drug court for people facing felony drug-related charges; defendants who opt in must go through a rigorous, abstinence-based program that includes mandatory treatment, frequent drug testing, and regular court appearances. The program is high-risk and high-reward: If a defendant completes the program, which lasts a minimum of 10 months, the charges are dropped. If they don’t, the judge can find them guilty and sentence them for their original felony, which could mean a long jail sentence.
For misdemeanors, the reward at the end of the process would be comparatively minuscule—the dismissal of low-level charges that don’t usually lead to jail sentences in the first place. It’s unclear how many, if any, misdemeanor defendants would opt in to such a court; currently, every drug court in Washington state is focused on felony-level offenses.
The group Harrell announced last month includes two other task forces, in addition to the one focused on the courts, that will discuss treatment and enforcement.
Lewis said that now that the work groups are meeting to discuss the best way to respond to public drug use, the legislation making public use a gross misdemeanor in Seattle is “almost a Macguffin”—a device that gets the plot going, but isn’t particularly significant in itself.
PDA co-director Lisa Daugaard agrees with that assessment. In an op/ed for PubliCola last month, she said the city’s primary focus should be on investing in evidence-based approaches to drug use and homelessness, regardless of whether the council gives Davison the authority to prosecute drug users.
1. City Attorney Ann Davison announced Wednesday that her office will appeal an injunction that prevents Seattle police from arresting people for violations of the city’s anti-graffiti law. However, given the broad sweep of the injunction—and the judge’s rejection of an earlier motion to dismiss the case—the city’s appeal seems unlikely to succeed.
Last month, a federal judge, Marsha Pechman, issued a ruling in a a case brought by four people who were arrested in 2021 for writing messages including “peaceful protest” in sidewalk chalk on concrete barricades set up outside the Seattle Police Department’s East Precinct. In her ruling, Pechman found that that the four plaintiffs were likely to prove that the ordinance “violates the First and Fourteenth Amendments by being both vague and overbroad.” One week later, Pechman rejected the city’s motion to dismiss the case.
In her June 23 order declining to dismiss the case, Pechman said the city failed to prove that the four protesters lack standing to file a claim under the First, Fourth, and Fourteenth Amendments. In addition to the reasons laid out in the original injunction, Pechman rejected the city’s claim that the police who made the arrests had qualified immunity because they believed the arrests were allowed under the ordinance’s “ban on drawing.”
“We have to have the ability to arrest people for unwanted graffiti. If we lose the lawsuit, we go back to the drawing board and figure out what the deficiencies are in the law, and we fix it or remedy it.”—Mayor Bruce Harrell
“The injunction restricts the City from appropriately addressing the growing problem of graffiti,” Davison said in a statement announcing the appeal. “The victims of graffiti—the public as a whole, business owners, property owners, and others – must have a voice. Graffiti is a crime that has an enormously negative and costly impact.”
During an event last week announcing details of his downtown revitalization plan, Mayor Bruce Harrell told PubliCola, “We have to have the ability to arrest people for unwanted graffiti. …. If we lose the lawsuit, we go back to the drawing board and figure out what the deficiencies are in the law, and we fix it or remedy it.”
2. Next week, the Seattle city council will consider new rules for council committee meetings that restrict public comment explicitly to items on a meeting’s agenda, unless the council member chairing the meeting specifies that people can comment on additional items or issues and provides “prior notice” that additional comments will be allowed as part of the meeting agenda.
Over the past several years, public comments at city council meetings have broadened in scope, as more people have shown up to committee meetings to talk about issues that fall under the committee’s purview (addressing the public safety committee about police brutality, or the sustainability committee about climate change), even when there isn’t a specific item about that topic on the agenda. Under the new rules, a committee chair or the council president will be able to cut a speaker off if they go off-topic.
Of the two dozen or so homeowners with active city council campaigns, seven are landlords.
The new rules also spell out more clearly what kind of conduct will get someone kicked out of a meeting, including “threats, personal attacks, or the use of racial, misogynistic, or gender-related slurs, or abusive language or other disorderly conduct,” and give the committee chair sole discretion to decide whether a person is violating the rules.
3. Although the majority of Seattle residents are now renters, the City Council has long been the purview of the property-owning class—people who either come onto the council with property and wealth, or are able to buy property once they start making a council salary.
This year’s council candidates reflect that trend—a large majority of the 30 candidates with active campaigns are homeowners, and only about eight are renters who do not own any property, such as a house that they don’t live in. (These numbers are approximate because state election disclosure records do not require reporting of property owned out of state.)
Of the two dozen or so homeowners with active campaigns, seven are landlords who earn a portion of their income renting residential property. This group includes District 4 candidate Kenneth Wilson, who owns a large coastal property in Florida; District 4 candidate Maritza Rivera, who rents out a Seattle townhouse; and District 5 candidate Cathy Moore, who owns a house in Burien. Most of the landlord candidates make less than $30,000 a year from their rental properties.
The one exception: District 7 candidate (and Piroshky Piroshky owner) Olga Sagan, who reported making between $90,000 and $159,998 last year from her two rental properties in Seattle.
Before casting the deciding vote to reject a bill that would have given City Attorney Ann Davison new power to prosecute people for using or possessing drugs, Councilmember Andrew Lewis said he was swayed to vote no by Davison’s unilateral decision to stop sending cases to community court, a therapeutic court that allows people accused of specific low-level misdemeanors to access services and life-skills classes in lieu of prosecution.
Davison’s office has argued that community court and its onetime presiding judge, Damon Shadid, have been too lenient on low-level defendants, allowing people to elude charges by attending a single online life-skills class. Some service providers have actually echoed this complaint, arguing that the court does too little to get people into meaningful services like addiction treatment and job assistance programs.
Proponents of community court, including Shadid and the King County Department of Public Defense (DPD), say community court graduates were less likely to reoffend (one measure of success) than people who go through mainstream court, and that the court offered a vital alternative to prosecution and incarceration, which clog up court dockets and put more pressure on the understaffed downtown jail.
“Community Court was a collaborative effort to reduce the harm of the system and instead connect people charged with nonviolent misdemeanor offenses to services,” DPD director Anita Khandelwal said after Davison announced her decision. “Nonetheless, the Seattle City Attorney … seeks to push push people deeper into a criminal legal carceral system that is expensive, deadly, and deeply racially disproportionate.”
Lewis, a former assistant city attorney, has said he will vote for a future version of Davison’s legislation if and when the city comes up with an alternative, or “successor,” to community court that includes access to services like addiction treatment for people who participate. So far, Lewis—who’s up for reelection this year—has outlined no specific plan, timeline, or proposal for what the new court would look like and who would be eligible.
In this context, the debate over Seattle’s now-defunct community court is still highly relevant. If the whole concept is doomed to failure, as Davison has suggested, the solution might be some combination of expanded pre-trial diversion programs and prosecution, which Davison’s office maintains the Seattle Municipal Court is better equipped to handle now that one judge (Shadid) has been “freed up” to hear mainstream cases. If it was a success, as DPD maintains, a new court might look more like community court 4.0, perhaps with more requirements—Davison’s office bristled at Shadid’s elimination of a community-service mandate—and a more punitive prosecute-and-jail track for people who fail to engage after signing up for the program.
The City Attorney’s Perspective
In her letter to the city council announcing the city’s withdrawal from community court, the city attorney’s criminal division chief, Natalie Walton-Anderson, said community court had an extremely low completion rate, with just a 22 percent “graduation” rate among defendants referred to the court. This, the city attorney’s office argued, has led over time to “a huge volume of unresolved and unaccounted for cases”—growing from a handful in August 2020, when the court was launched, to more than 1,500 as of last September.
“Prosecutors, judges and defense sitting in empty courtrooms is extremely costly, not just in staff time but in opportunity cost,” a spokeswoman for the city attorney said. “There are many more effective uses of this staff time. It also imposes a public cost—if there is no effective response to repeat criminal activity then the public pays through reduced safety and increased victimization.”
This backlog, Walton-Anderson argued, is the result of people failing to engage in court by showing up for hearings or complying with court requirements, even though “most participants only had to participate in an assessment with a pre-trial service counselor and attend a 90-minute life skills class.”
“Prosecutors, judges and defense sitting in empty courtrooms is extremely costly, not just in staff time but in opportunity cost,” a spokeswoman for Davison, Marina Yudodik, told PubliCola. “There are many more effective uses of this staff time. It also imposes a public cost—if there is no effective response to repeat criminal activity then the public pays through reduced safety and increased victimization.”
Community court—which excludes anyone accused of serious misdemeanors, such as stalking, harassment, and motor vehicle offenses—has three tiers for engagement, ranging from a 14-day program that includes the online life-skills class and information about available services to a 45-day program that includes mandatory engagement in services assigned by the court. According to Seattle Municipal Court data, Tier 1 defendants—the lowest level of engagement—account for fewer than half of those who enter community court, and there are about the same number of Tier 3 defendants as Tier 1.
But even among people who do engage with services, Davison’s office argues, the majority only access items to help with their immediate needs, rather than ongoing services like drug treatment or job training. According to community court records, in the court’s first 16 months, 31 participants accessed drug treatment, including medication-assisted treatment with suboxone—less than a third of the number referred to treatment services. In contrast, 214 people received bus tickets, 132 got clothing, and 166 accepted food bags.
In addition, the city attorney’s office argues, community court has is open to people who are accused of “significant criminal acts,” and does not screen out people with “serious criminal histories,” including in other states. In her letter, Walton-Anderson gives several examples of cases that her office believes are “inappropriate” for community court, either because they’ve committed more serious crimes in the past or because their specific cases are more serious than their charges indicate.
The letter provides four examples of “inappropriate cases and individuals” that ended up in community court, including one man who had several felony cases pending in King County Superior Court who went on to carjack a vehicle with a child inside; one man who was charged with multiple felonies while in community court but still graduated; and another man who committed multiple misdemeanors and felonies while his cases were pending in community court.
In her letter, Walton-Anderson said the office plans “to dismiss a significant number of cases that were filed prior to January 1, 2022” to clear out the community court docket, and the city attorney’s office has said it plans to send more cases into pre-trial diversion, where appropriate, while routing other cases to mainstream municipal court. In a statement about her decision to stop sending cases to community court, Davison noted that people who participate in pre-filing diversion are less likely to reoffend than those referred to community court.
The city’s existing pre-filing diversion programs are aimed at people under 25, not the older adults who commit a large and growing number of drug-related crimes. Other programs, such as the longstanding program now called Let Everyone Advance with Dignity (LEAD), serve older adults, including those with significant behavioral health challenges and extensive criminal justice involvement, but LEAD is a pre-booking program separate from the pre-filing programs Walton-Anderson referred to in her letter.
Recently, the CAO did sign new pre-filing diversion contracts with several nonprofit groups, including the Urban League, the LGBTQ+ Center (formerly Gay City), and Unified Outreach, an arts program for at-risk youth that is expanding to serve adults. The city council provided $750,000 for expanding diversion to people 25 and older in 2021, but—after a protracted battle with Davison in 2021—moved the funding from the city attorney’s office to the Human Services Department, which spent more than a year analyzing potential diversion strategies. During this time, the funding sat unspent for “many months,” Davison spokeswoman Yudodik said.
These programs, once they’re up and running, will still be aimed at people who are fairly high-functioning—excluding, for example, those who are in active fentanyl addiction and need more services than a light-touch diversion program can provide.
The Public Defenders’ Perspective
Community court has many defenders, including the attorneys who represent clients accused of low-level misdemeanor crimes.
DPD director Khandelwal recently told PubliCola that “if the CAO opts for traditional prosecution, we expect we’ll see more dismissals. This means that more people will churn through a costly and ineffective system and will be harmed and destabilized in the process.” Data from the city attorney shows that in 2022, municipal court judges dismissed nearly 800 cases out of 5,700 filed by the city attorney’s office.
Advocates for community court have also argued that criminalizing low-level crimes, and jailing people who would have been eligible for community court, will only destabilize defendants with major challenges that contribute to their criminal activity, such as mental illness, addiction, and homelessness.
“We have been able to hook people up with housing, with inpatient treatment, with mental health services, with Apple Care [Medicaid] insurance, right there at the court,” Shadid told PubliCola last year. “I just think this way is proven to have more positive effects for our community than putting people in jail, destabilizing them, making them lose their services, and then releasing them back into the community with less connections to services than they had when they entered.”
In her letter, Walton-Anderson provided several examples intended to demonstrate that community court doesn’t work, and that eliminating the court would give the city attorney the ability to prosecute people who cause harm. However, it’s debatable whether the cases she picked as examples would have gone differently if community court did not exist.
For example, the letter describes Ryan, who was accused of theft and property damage. After opting in to community court, he committed a felony by attempting to steal a car that had a child inside. However, both of Ryan’s charges stemmed from arrests in 2021 for which he was booked and quickly released, long before he opted in to community court last year. Both of those cases were dismissed for lack of proof. Ryan has been in jail on the felony charge since last May in lieu of $350,000 bail.
It would be one thing if this was unique to community court, but failure to appear is extremely common across all parts of the municipal court system. Scott Lindsay, now Davison’s deputy city attorney and a vocal opponent of community court, estimated in a 2019 report for the Downtown Seattle Association that around 65 percent of people failed to appear at their initial court hearing.
In another case, William racked up a large number of shoplifting misdemeanors before his 2020 referral to community court. The jail repeatedly released him directly into residential treatment for his substance use disorder, but he left each time before finishing. The reason William’s cases were dismissed, though, was a separate plea deal with the King County prosecutor on a felony case, not his failure to participate in community court or treatment. Additionally, William is on the “high utilizers” list Davison categorically excluded from community court more than a year ago, and has been ineligible for community court since then.
Walton-Anderson’s letter also cites David, a man who was arrested repeatedly for stealing from a store in North Seattle and “graduated” from community court in 2022, “having completed only the 90 minute life skills class to resolve all [nine] cases” from 2020. In fact, according to court records, David had been in a one-year residential treatment program for almost two months and “making great progress,” according to his probation officer, when he graduated from community court—precisely the kind of outcome the city attorney’s office has said it hopes to see. By the time David reoffended last August, he was already ineligible for community court because he, like William, was on Davison’s high-utilizers list.
Advocates for community court also dispute some of the statistics the city attorney uses to claim the court wasn’t working. For example, the office has frequently noted that community court has a low completion level—about 78 percent of people who opt in to the court don’t complete it. However, as Judge Shadid has pointed out, the low “graduation” rate stems from the fact that a high percentage of community court participants fail to appear at initial hearings, often because they are homeless.
It would be one thing if this was unique to community court, but failure to appear is extremely common across all parts of the municipal court system. Scott Lindsay, now Davison’s deputy city attorney and a vocal opponent of community court, estimated in a 2019 report for the Downtown Seattle Association that around 65 percent of people failed to appear at their initial court hearings. The subtitle for the report, which preceded the most recent iteration of community court, was “Declines, Delays, And Dismissals – Why Most Seattle Misdemeanor Cases Never Get Resolved And The Impacts On Public Safety.”
The city attorney’s office has pointed to higher recidivism rates among people who opt in to community court compared to pre-trial diversion programs that have more requirements, like the LGBTQ+ Center’s online Access to Change program for young adults accused of certain domestic violence crimes. However, people who get referred into pretrial diversion are a specific subset of defendants who the city attorney’s office believes are likely to succeed in diversion programs that offer a “light touch”—young people with minimal prior criminal involvement who generally do not face the same challenges as older community court defendants, like chronic homelessness, fentanyl addiction, and severe mental illness. They just aren’t the same group of people.
Community court is gone, for now, and its replacement is now in the city’s hands. Both Lewis and Davison have expressed support for expanded use of pre-trial diversion programs for the higher-functioning people who qualify, and continuing or expanding LEAD, an evidence-based program that provides case management and services to people with high levels of criminal legal involvement.
Even with those programs, both Davison’s office and the municipal court will likely be inundated with new low-level cases, which could lead to larger backlogs and more dismissals. Currently, according to records compiled by municipal court staffers, the court has almost 2,400 cases from 2022 that are still pending, along with nearly 2,000 so far in 2023. Adding cases that would have gone to community court to this pile would only increase the backlog. In 2019, for example, nearly 3,000 cases were filed that would have been eligible for community court, if community court had existed at the time.
Last year, Davison’s office declined fewer than 60 cases using pre-filing diversion programs—a small fraction of the number that will need to be diverted into programs that have limited capacity in order to avoid an even greater backlog. The city—and Lewis in particular—will have to be creative and determined if it wants to avoid the very situation Davison decried during her election campaign.
After a tense, emotional meeting Tuesday, the Seattle City Council voted 5-4 to reject legislation proposed by City Attorney Ann Davison that would have empowered Davison to prosecute Seattle residents for simple drug use and possession.
The bill, co-sponsored by Councilmembers Sara Nelson and Alex Pedersen, would have incorporated most of a new state law making drug use and possession a gross misdemeanor into the city’s municipal code. The state legislature changed the law this year after the state supreme court overturned the state’s felony drug possession law in a decision called Washington v. Blake.
The swing vote was Andrew Lewis, a former assistant city attorney who represents downtown Seattle and is up for reelection this year. On Tuesday, Lewis said he had planned on voting for the bill, but changed his mind after Davison abruptly and unilaterally announced the city would no longer participate in community court, a therapeutic court that did not require people to plead guilty of a crime to participate.
Lewis’ vote, he said, came down to the fact that he didn’t believe Davison would use the law judiciously after she effectively eliminated the city’s only therapeutic court.
“What it really came down to was that I don’t have any guarantee right now, with these misdemeanors, that jail isn’t going to be the primary remedy that’s sought to enforce them” in the absence of community court, Councilmember Andrew Lewis said. “”This infrastructure has to be in place, or at least there has to be a commitment or an outline for what we are going to do, and I ultimately didn’t feel comfortable giving that authority without that.”
“I came out here on the dais today fully prepared to vote for this measure,” Lewis said. “I am not necessarily opposed to incorporating the statute into our [city code], and I was prepared to do this. I think it is generally proper for us to do it. But with the ending of community court, without any additional process, I just can’t do it today.”
On Wednesday, Lewis told PubliCola that what his vote “really came down to was that I don’t have any guarantee right now, with these misdemeanors, that jail isn’t going to be the primary remedy that’s sought to enforce them” in the absence of community court. “It doesn’t exist now, but maybe we could make a successor court” to community court, he said. “This infrastructure has to be in place, or at least there has to be a commitment or an outline for what we are going to do, and I ultimately didn’t feel comfortable giving that authority without that.”
This afternoon, Lewis announced he would propose a path toward passing a version of Davison’s law, after working to develop a “successor court” to community court, develop and fund treatment-based pre-filing diversion, working “to scale and deploy” an evidence-based response to fentanyl use in Seattle, and “finally, after creating those necessary pathways for treatment and diversion, propose legislation making the Seattle Municipal Code consistent with State Law on possession and public use.”
Tensions were high in council chambers on Tuesday, as dozens of public commenters opposed to the law expressed their grievances with the council in general, and Nelson—who owns Fremont Brewing, a brewery and bar, with her husband—in particular.
“We all know that the Seattle Police Department will not be investigating, arresting, and charging anyone who is doing lines of coke in the bathroom of the Fremont Brewery,” Molly Gilbert, head of the union representing King County Department of Public Defense employees, said. “You are literally a drug dealer!” another commenter quipped.
Others responded to claims that the proposal was not tantamount to a “drug war,” because it would only make drug use and possession a misdemeanor, by telling the council how their own lives were derailed by misdemeanor drug convictions. Liletha Williams, one of the last people to speak, testified that her misdemeanor convictions in the 1990s “destroyed my life.”
“I’m 62 and I don’t have any retirement,” Williams said. “I have to work. I’m sick. I can’t have surgery because I can’t miss work. This is all because of my drug addiction in 1990.”
Moments after listening to this testimony, Nelson said her legislation had nothing in common with the drug war of the 1990s.
“I believe that equating this legislation to the war on drugs is frankly to diminish and minimize the damages and the heinousness of that stain on our history,” Nelson said. “Those were felonies. People were thrown into jail for years on felony charges having to do primarily with cannabis and coke and crack and heroin, etc. We are talking [about creating a] gross misdemeanor to address the most potent and dangerous drug to hit our streets, ever.”
Juarez—who briefly put the meeting into recess after people objected to her proposal to end public comment before everyone had spoken—also described fentanyl as a uniquely deadly and dangerous new drug.
“Let me be clear,” Juarez said, “fentanyl is poison. The effects are different and more deadly than than we have ever witnessed with other dangerous drugs like cocaine or heroin. There is no such thing as a functioning fentanyl user. You either have treatment or you die. And you die soon.”
In fact, fentanyl has been legally manufactured and prescribed in the US since the 1960s for long-term pain management and is on the World Health Organization’s list of essential medicines, along with many other potentially addictive drugs. (Nor—despite frequent claims to the contrary—can people get high or overdose from secondhand fentanyl vapor, according to the Seattle/King County Department of Public Health.)
“Let me be clear,” Council President Debora Juarez said, “fentanyl is poison. The effects are different and more deadly than than we have ever witnessed with other dangerous drugs like cocaine or heroin. There is no such thing as a functioning fentanyl user. You either have treatment or you die. And you die soon.”
So what happens now? As it has since May, the new state law applies in Seattle, meaning that drug use and possession are both illegal. (This is true despite a false claim from Davison that “Seattle will now be the only municipality in the State of Washington where it is legal to use hard drugs in public.”). Seattle Police Department officers retain their existing authority to arrest people under the state law, and King County Prosecutor Leesa Manion retains her existing authority to prosecute people for misdemeanor drug use and possession. And Davison can continue prosecuting misdemeanors related to drug use, such as shoplifting and trespassing—something that has already been keeping her busy in the absence of broad the broad new authority she sought.
In all likelihood, SPD won’t start rounding up fentanyl users on Third Avenue, and Manion won’t start prosecuting people for simple possession, but that would have been the case even if the legislation had passed. Manion, who supported the bill, rarely pursues even felony drug cases, and SPD has been focusing its resources on people higher up the illicit drug food chain—”the dealers and traffickers bringing this poison into our communities,” as Mayor Bruce Harrell put it in a statement after the vote. Harrell, no fan of drug-war policies, has stayed largely silent on the legislation; in his statement, he said it was “unacceptable for people to consume illegal drugs in public spaces,” but also emphasized “new and innovative approaches to ensure those in need receive the treatment they deserve,” such as contingency management.
Lewis’ potential legislation is the wild card. If he re-introduces some version of Davison’s bill—criminalizing drug use but securing promises from her office about diversion and treatment, for example—it could reignite a largely irrelevant debate about arresting and jailing drug users amid an overdose crisis that cries out for evidence-based approaches, not overheated drug-war rhetoric.
1. As of last week, the Seattle City Council seemed likely to vote at least 5-4 in favor of legislation, proposed by City Attorney Ann Davison and sponsored by Councilmembers Sara Nelson and Alex Pedersen, to criminalize simple drug possession and public use at the city level. The state legislature, responding to a state supreme court decision overturning the state’s previous felony law, made drug use and possession a gross misdemeanor earlier this year; the local proposal would incorporate parts of that law into the city’s municipal code.
However, after Davison abruptly withdrew the city from Seattle’s community court—a therapeutic court that accepts people accused of most misdemeanors without requiring them to plead guilty of a crime—council members who were leaning toward a “yes” vote have reportedly been reconsidering their positions. If Councilmembers Teresa Mosqueda, Tammy Morales, Kshama Sawant, and Lisa Herbold all vote “no,” all it will take is one more council member—either Andrew Lewis or Dan Strauss, both up for reelection this year—to doom the bill.
Lewis declined to comment on Monday, and Strauss did not respond to a text message last week. However, Strauss proposed an amendment on Monday that would add a “whereas” clause the bill pointing out that the state law mentions diversion, treatment, and services as alternatives to booking and prosecution, suggesting that he may believe the new law meaningfully encourages these alternatives.
If Strauss supports the bill, the decision would come down to Lewis. Although Lewis told the Seattle Times he supports prosecuting people for public drug use, that was before Davison withdrew the city from community court. In light of that decision, Lewis may want to avoid handing more authority to a separately elected official who has demonstrated she will act unilaterally to penalize low-level crimes. During Monday’s council briefing, Lewis criticized Davison’s decision, saying it was “concerning that the decision to pull out and disrupt that program has been made without a well-thought–out plan on what replaces it.”
The criminalization bill skipped past the usual committee hearing, so tomorrow’s 2 pm full council meeting will be the first time the council discusses the legislation publicly, and the first and last opportunity for the public to address the council directly before the vote.
2. Former King County Regional Homelessness Authority CEO Marc Dones, who announced their resignation last month, will reportedly receive a public contract to work on an unspecified project for the agency for up to three months after their last day on June 16. Sources close to Dones and the agency were tight-lipped about the details, but the deal is said to be a kind of payment in lieu of severance because Dones decided to resign rather than forcing the agency to fire them, which was starting to look more and more likely in the weeks leading up to Dones’ resignation.
Dones has been a divisive figure, winning praise for their big-picture vision and efforts to include people with direct experience in decisions that impact them directly, along with criticism for neglecting ground-level details, like building relationships with existing service providers and paying contractors on time.
It’s unclear exactly where the money for Dones’ potential contract would come from, and whether it would require them to be physically present at KCRHA headquarters at the same time that an interim director, Helen Howell, is working to establish a new course for the agency. A representative for King County declined to comment on the details of the potential contract, and a representative for Harrell did not respond to an email, a phone call, or a text message seeking comment.