Tag: City Attorney’s Office

Addiction, City Council, criminal justice, Drugs, Police

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.”

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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.

City Council, Drugs, Mayor Harrell

After Watering Down Language About Diversion, Committee Moves Drug Criminalization Bill Forward

By Erica C. Barnett

The Seattle City Council’s public safety committee approved legislation on Tuesday that will empower City Attorney Ann Davison to prosecute people for public drug use and simple possession. Councilmember Teresa Mosqueda cast the lone “no” vote, saying the council should be “focusing how on how we get people into public health services, not how we double down and recreate a punitive system … to prosecute more people.” Committee chair Lisa Herbold, along with Councilmembers Andrew Lewis, Sara Nelson, and Alex Pedersen, voted yes.

The legislation now heads to the full council, which will take it up on September 26—or sooner, if Herbold and council president Debora Juarez decide to amend council rules to push it through faster.

Substantively, the bill is more or less the same as a version the council narrowly rejected, with Lewis casting the deciding vote, in June; that is, it criminalizes public drug use and simple drug possession at the local level, mostly aligning the city’s law with state legislation that made public drug use and simple possession gross misdemeanors earlier this year. (Unlike state law, the city bill exempts cannabis.)

The newest version, which includes pages of new “whereas” clauses describing the fentanyl addiction crisis and stipulating that the city does not want another drug war, says police should show a preference for diversion to treatment and other programs when deciding whether to book people for drug use or possession. The new reference to diversion mirrors the new state law, which says that police are “encouraged to offer a referral” to treatment or  diversion programs “in lieu of arrest.”

Proponents of the bill, including Lewis, called this new clause a substantive change that helped transform the bill into a “balanced” piece of legislation. “What we’re really focusing on here is how to take full advantage of our provider community and the resources that they bring to to the forefront to facilitate warm handoffs from law enforcement” into programs like LEAD (Let Everyone Advance With Dignity), a successful pre-arrest diversion program, Lewis said. The state law adopted earlier this year also encourages LEAD referrals, mentioning the program by name 36 times.

“We have spent the last three years finding one-time funding sources to plug that gap at LEAD. If the funding gap from last year is the same [in Harrell’s 2024 budget], it will start to impugn our ability to actually do what this bill purports that it will do.”—Council budget chair Teresa Mosqueda

For those who end up arrested under the new law, Lewis said, the legislation also provides the option of pre-trial diversion, in which the city attorney’s office would decline to file charges if a person agreed to go through one of several programs offered through Davison’s office. “If they complete that referral, then they decline the the case,” Lewis said during a recent episode of the Seattle Channel’s “Seattle Inside/Out.”. “They won’t pursue it. Incredibly effective program. Twice as many people who go through pre-file diversion do not re-offend as people who go to jail. Very important statistic.”

While this may be true, as PubliCola has reported, the city’s pre-trial diversion programs are targeted toward young adults and people who are generally high-functioning; they are specifically inappropriate for the chronically homeless and profoundly addicted people the drug legislation is meant to target.

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An amendment by Sara Nelson removed language requiring officers “make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives to arrest consider diversion” before arresting someone under the law. That amendment, which passed 3-2 (with Mosqueda and Herbold voting “no”) effectively means that it will be up to officers to decide whether to direct people to diversion based on unidentified criteria. The bill says that the mayor plans to issue an executive order stating that diversion is the city’s “standard approach.”

Some councilmembers appeared reassured by this rhetoric, as well as apparent closed-door commitments from Harrell’s office to find money for diversion programs, which are chronically underfunded. But as Councilmember Teresa Mosqueda noted at Tuesday’s meeting, the bill itself commits no new funding to any of the city’s existing diversion programs, which are already stretched thin. This means that the council is putting great faith in Harrell’s budget, which won’t be released until late September. Historically, the mayor’s budget has underfunded diversion programs like LEAD, leading the council to add funding to keep existing programs going.

“We have spent the last three years finding one-time funding sources to plug that gap at LEAD,” Mosqueda noted. “If the funding gap from last year is the same [in Harrell’s 2024 budget], it will start to impugn our ability to actually do what this bill purports that it will do.”

Additionally, Mosqueda noted, the city faces a budget shortfall, starting in 2025, of more than $200 million a year. “Everyone should have that front and center,” she said.

Without new funding, the primary impact of this recommendation could be that existing diversion programs, such as LEAD, start getting new referrals primarily from police, instead of the community-based referrals that now make up the bulk of their work. For most of its existence, LEAD stood for “Law Enforcement Assisted Diversion”; last year, the group changed its name to reflect the shift in its priorities. Reverting to the old model would mean, “effectively, that the only entry point to LEAD is by a police officer,” Mosqueda said.

The committee also voted 3-2 for another amendment from Nelson that water down the second purportedly substantive change to the legislation, which originally would have required officers to use their discretion and judgment to “determine whether the individual, through their actions and conduct, presents a threat of harm to others” before making an arrest.” Nelson’s amendment changes “will” to “may,” making the use of discretion itself discretionary.

The change won’t have much practical impact, since the original version of the bill already defined “harm to others” so broadly it included any “street disorder” witnessed by “businesses, transit riders, and people traveling to school, work, retail stores, or trying to enjoy the City’s parks and other public places.”

But it does codify the notion that police officers get “confused,” as Nelson put it, “in the moment [about] … what we are expecting them to do,” and that requiring them to use their judgment before arresting drug users will make it harder for them to do their jobs (and, presumably, drive them away). “There are practical concerns for officers and prosecutors … includ[ing] time burdens and confusion for the prosecution of criminal cases to time burdens and confusion for officers that are trying to enforce our laws,” Nelson said. Given recent revelations about the way officers behave behind closed doors, one could reasonably argue that officers need more oversight and guidance from the city, not less.

Earlier in the meeting, Mosqueda proposed tightening the definition of “harm to others” to include only physical harm, as opposed to feeling uncomfortable or unsafe. That amendment failed, after Nelson said that someone “being exposed to fentanyl” should be enough to justify an arrest. During public comment, Rev. Harriett Walden, a member of the Community Police Commission, said she “had a fentanyl exposure and almost died.” According to numerous studies, fentanyl vapor contains almost no trace of the drug, and does not pose any physical risk to people who aren’t smoking it.

Addiction, Crime, Drugs, Mayor Harrell

Harrell’s “$27 Million Drug Diversion and Treatment” Plan Would Allow Prosecutions But Add No New Funding
Mayor Bruce Harrell and City Councilmember Sara Nelson, who cosponsored the original drug criminalization bill.

By Erica C. Barnett

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.

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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.”

City Council, Crime, Police

Audit: Police Could Do More, Without Hiring Extra Cops, To Address Retail Theft Rings

By Erica C. Barnett

A report from the city auditor’s office on the city’s response to organized retail theft concluded that the city, particularly the Seattle Police Department, is not doing everything it can to combat local commercial fencing operations that resell goods stolen by individual “boosters,” typically “”people who are homeless and people with substance use disorder,” who receive drugs or small amounts of money in exchange for bearing most of the legal risk for organized theft operations.

The audit, pointedly titled “The City Can Do More to Tackle Organized Retail Crime in Seattle,” points to a number of actions the department could take, without hiring additional staff or increasing its budget, to target people organizing thefts and directing the resale of stolen retail goods. City Councilmembers Andrew Lewis and Lisa Herbold announced the audit last year, and its chief author, the City Audit Office’s Research and Evaluation Director Claudia Gross Shader, presented its findings to Herbold’s public safety committee Tuesday morning.

Cities, like Auburn, that have been successful at reducing organized theft have succeeded by taking down the organizers of fencing operations—”cutting off the head of the snake,” as Gross Shader put it Tuesday.

The police department and City Attorney Ann Davison have rolled out numerous initiatives to crack down on the people at the bottom of the fencing food chain—Davison’s “high utilizers” initiative, for example, imposes extra penalties on people arrested repeatedly for stealing from stores—but have not taken meaningful steps to disrupt theft rings by focusing on the people actually running them, the report concludes.

According to the Washington Organized Retail Crime Association, organized retail theft refers to operations in which street-level shoplifters steal items in exchange for drugs or small amounts of money on behalf of fencers, who resell the items in markets that range from sidewalk setups to international theft and resale rings.

Under state law, however, a single shoplifting incident is considered “organized” if a person steals merchandise worth $750 or more in a single incident. As PubliCola has documented, the city has used the organized theft statute to prosecute people stealing valuable items without determining whether they are actually part of any organized theft ring.

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The audit puts a number on this tendency to focus on cases that do not appear to be “organized” in any meaningful sense: Of the 49 “organized retail theft” cases SPD referred to the King County Prosecutor’s Office in 2022, 45 involved thefts that qualified because they were above the $750 threshold, while only the remaining four indisputably involved fencing. The 45 people in the former category were disproportionately Black (38 percent) and included people who were homeless and had substance use disorders.

According to the audit, responding to calls from just the top 100 retail locations in the city used up almost 19,000 hours of police time, equivalent to the work of nine full-time officers—”a significant body of work” that could be streamlined, the report suggests, by using tools like “rapid video response” (essentially a police version of Zoom) to interview store employees instead of sending officers all over town.

Although the report says nothing about police hiring, City Councilmember Sara Nelson said it validated her efforts to secure more funding for police recruitment, and suggested (for the second time in a week) that if the council would  “just lift” a budget restriction that requires council approval before SPD can spend salary savings from unfilled positions, “they could spend that those resources on whatever they need to help with the crime situation.”

Although a report on place-based strategies specifically called for eliminating “extreme measures” like the razor-wire-topped fences the city installed to prevent people from accessing a parking lot at 12th and Jackson, the fences remain, giving the area the feel of a prison camp.

Chiming in a few minutes later, Councilmember Alex Pedersen said the “defunding movement against the police” movement had led to the loss of more than 400 police officers, which he said contributed to the spike in retail theft that began in 2020.

The audit found that although the city does participate in a number of collaborative efforts to address organized theft rings—including state and federal task forces focused on the issue—SPD could be doing a lot more to access existing resources outside the department. For example, the US Department of Justice offers free assistance implementing a strategy called Problem Oriented Policing, or POP, that addresses the conditions that lead people to do things like working for fencers with the goal of preventing crime rather than just reacting to it.

“Although POP has existed since the 1980s, SPD has not systematically implemented it,” the audit says. “In fact, SPD’s lack of experience with POP was seen as a limiting factor in a federally funded pilot project designed to address two downtown Seattle crime hot spots.”

The city should also invest in “place-based strategies”—better lighting, activating vacant lots, and other non-law-enforcement approaches—to make “hot spots” less appealing places for people to operate illegal street markets. SPD proposed 68 such strategies last year for the intersection of 12th and Jackson, a frequent target of aggressive “hot spot” policing operations, but the city has only implemented three of them.

Although the SPD report specifically called for eliminating “extreme measures” like the razor-wire-topped fences the city installed to prevent people from accessing a parking lot at 12th and Jackson—specifically because they make the area feel “unsafe”—the fences remain, giving the area the feel of a prison camp.

Another problem the auditors identified is that when police arrest shoplifters who work for fencing operations, they rarely interview the people they arrest to find out how the operations work, squandering opportunities to disrupt the market for stolen goods.

Last year, as part of an effort to build cases they could actually prosecute, the prosecutor’s office created a checklist of information SPD needed to provide before sending a case to the county. According to the audit, none of the five cases SPD filed after getting the checklist had all the required information, and all five are currently on hold because they lack information the prosecutor needs to move forward. The audit recommends training detectives in how to use the checklist, which includes four items and detailed instructions on how to obtain them.

Courts, homelessness

City’s Primary Tool for Sweeping Encampments Without Notice Ruled Unconstitutional
Two after-the-fact notices after recent back-to-back sweeps in Occidental Park

By Erica C. Barnett

King County Superior Court Judge David Keenan ruled against the city of Seattle this week in a case brought by two unsheltered Seattle residents, Bobby Kitcheon and Candace Ream, whose tents were repeatedly swept by the city without notice.

In his ruling, Keenan found that although the city has the right to remove tents and other items without notice in some circumstances—for example, if they pose an imminent safety risk or completely block a sidewalk—the city has used an overbroad definition of “obstruction” to unconstitutionally invade people’s homes, destroy their property, and move them from place to place without offering shelter or other services. This invasion of privacy, Keenan wrote, is “no different than if one returned to their single-family stick-built house in any Seattle neighborhood after a personal errand to find that it had vanished.”

“Denying [the plaintiffs] any protected privacy in their homes would be yet one more permission slip to consider them not fully human,” Keenan added.

The ruling could force Seattle to narrow its rules for encampment removals so that they only apply to actual obstructions. (The city provides notice, information about available shelter beds, and property storage for some encampment removals, but those aren’t at issue in this lawsuit.)

“Denying [the plaintiffs] any protected privacy in their homes would be yet one more permission slip to consider them not fully human.”

Under rules established in 2017, the city can remove any “people, tents, personal property, garbage, debris or other objects related to an encampment” if those items are in a public park or on the sidewalk, on the grounds that they inherently constitute an “obstruction” to other people’s use of that public space. The city has routinely used this rule to justify sweeping encampments whether or not they actually obstruct anything—such as a handful of tents located in a secluded, heavily forested area of a public park.

“Since the definition was expanded in 2017, there has been a dramatic increase in obstruction removals, versus encampment removals that were subject to advance notice,” said Jazmyn Clark, director of the ACLU-WA’s Smart Justice Policy Program.

Removals that rely on this overbroad definition of “obstruction” constitute “cruel punishment” under the Washington state constitution, Keenan wrote, “because that definition allows the City to move unhoused people who are not actual obstructions, without offering unhoused people shelter.”

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“There were circumstances in which unhoused folks would leave to, say, attend a doctor’s appointment, come back, and their entire home is just gone,” Clark said. “That is so disruptive and destabilizing— and then to have that practice continue over and over again; it just continually harms the folks that are most vulnerable because they have such limited resources to try to be able to start fresh.”

The case involved two unsheltered people who repeatedly lost all their belongings during no-notice sweeps. One of the plaintiffs, Bobby Kitcheon, described going through at least eight sweeps in less than four months, losing his wedding ring, his work boots, family heirlooms, and medication,  along with the tent and camping equipment he shared with his wife. Kitcheon said losing his work boots and equipment made it impossible for him to work, and that he and his wife now “feel like they have to be on constant alert and wake up every time someone walks by their home for fear that it is the City about to threaten them with arrest and destroy their property,” according to the lawsuit.

Keenan’s summary judgment is not the end of the road for the lawsuit, which is currently scheduled for trial in September. City Attorney Ann Davison could also choose to appeal the summary judgment ruling. In response to questions, a spokesperson for Davison’s office said, “at this point, the Seattle City Attorney’s Office is evaluating next steps.”

Courts, Mayor Harrell

Federal Judge Issues Injunction Barring Seattle from Enforcing Its Anti-Graffiti Law

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.

“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.”

“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.”

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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.

 

Addiction, City Council, Courts, Drugs, Mayor Harrell

Harrell Vows to Pass New Drug Law, Creates Work Group to Find Solutions to the Fentanyl Crisis
Seattle City Councilmember Andrew Lewis takes questions from reporters after yesterday’s press conference

By Andrew Engelson

Yesterday, following last week’s city council vote rejecting a bill that would have given City Attorney Ann Davison the power to prosecute people for drug possession and public use, Mayor Bruce Harrell announced the creation of a 24-member “Fentanyl Systems Work Group” tasked with finding and implementing solutions to the opioid overdose crisis. In King County, 462 people have died of overdoses involving opioids this year alone.

In a press conference at city hall on Monday, Harrell said he was committed to passing a new drug possession and public drug use ordinance that would align the Seattle Municipal Code with a statewide “Blake fix” law passed by the legislature in May, which set drug possession and public use as gross misdemeanors. 

“We will pass a law that allows our department to make arrests,” Harrell said. “But we will do that with compassion, to protect people when we have to.” Talking about how the war on drugs harmed his own community, Harrell wiped away tears and briefly stepped away from the podium.

“I believe in my heart, the people that are using drugs, many of them are sick,” Harrell said. “They’re not healthy. We’re not going to go out and fill our jails with sick people.”

The Seattle Police Department is already authorized to arrest people for drug use and possession under the statewide law, although King County Prosecutor Leesa Manion would have to agree to prosecute those cases, which she has said she will not do. Currently, few people are arrested or prosecuted under existing felony drug laws.

When pre-booking or pre-trial diversion don’t work or aren’t appropriate, Councilmember Andrew Lewis said he would support a new therapeutic court “where there would basically be a court-supervised check-in treatment regime—which is basically King County Drug Court.”

The work group will include municipal judges (including former community court judge Damon Shadid), several city council members, Davison, Police Chief Adrian Diaz, department directors, and representatives from service providers, diversion programs, community groups, and racial justice organizations.

Councilmember Sara Nelson, one of the sponsors of the drug possession bill, was adamant that the council pass a law soon. “I don’t want to see any infringement upon the city attorney’s prosecutorial discretion,” Nelson said after the press conference. “And I don’t want anybody telling the mayor what he’s going to do, what he’s going to direct his officers to do.”

Councilmember Andrew Lewis, who cast the deciding “no” vote last week, has said that in order to vote for a new bill granting the city attorney new authority to prosecute misdemeanor drug crimes, he wants to see a replacement for community court, more funding for prefiling and pre-arrest diversion programs like LEAD, and other “necessary treatment and diversion programs.”

“I’m looking forward to hearing from everybody,” Lewis told PubliCola. “We’ve got two judges who are on this task force. We’ve got the city attorney’s office on this task force. I think that we can work through whatever differences we have to get a plan in place to have a successor therapeutic court.”

Community court has been the primary alternative to Seattle’s mainstream municipal court system since 2020. Though Lewis said he’s committed to finding a replacement for the court, he added that he’s actually more invested in diversion programs that target people before they get arrested in charged, such as LEAD for adults and Community Passageways for youth.

Lisa Daugaard, co-director of Purpose Dignity Action (formerly the Public Defender Association), which runs the pioneering pre-booking diversion program LEAD, said the debate over adding drug possession and public use to Seattle’s municipal code is something of a distraction, since diversion programs have existed as an option for more than a decade and will continue to.

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“Since 2012,” Daugaard said, “we’ve had a framework in Seattle where even when there is legal authority to arrest, book someone into jail, refer them to prosecution, and prosecute them, our local law enforcement agencies and prosecutors have very often chosen not to do that, in preference for a pre-booking diversion framework where people get a warm handoff to harm reduction-based care.”

Daugaard says arrests for drug-related offenses in Seattle have plummeted in the past two decades and aren’t likely to increase. “The incidence of stops, searches, and arrests for drug crime fell over a decade from being at the very top of the reasons that people have course of contact with law enforcement to outside the top ten,” she said. “And that was not an accident.”

When pre-booking or pre-trial diversion don’t work or aren’t appropriate, Lewis said he would support a new therapeutic court “where there would basically be a court-supervised check-in treatment regime—which is basically King County Drug Court.” Participants in drug court, which lasts a minimum of 10 months, must check in frequently, stay sober, and meet other court-mandated requirements in order to have their charges dropped.

“We know that pre-file diversions are probably best for the overwhelming majority of people,” Lewis said. “But there is a small group of people where those interventions have not been successful, and they need a little bit more accountability and a little bit more structure. And that can definitely be provided by a therapeutic court.”

Daugaard says the more critical issue is finding sufficient funds for recovery services for people with substance use disorder, especially those without shelter. Though one selling point of the state’s drug possession bill was supposed to be an increase in funding for services and treatment, Daugaard says what the state actually provided is insufficient to deal with the scope of the problem statewide.

“The population in each region that it can serve is a small fraction of the total number of people who are using drugs in a way that could either be life threatening or problematic for their stability.” Addressing drug use in Seattle will require an injection of local resources beyond what the city has provided so far—something the council will have to grapple with during its annual budget deliberations this coming fall.

Courts, Crime

Davison Unilaterally Ends Community Court Program
City Councilmember Sara Nelson and City Attorney Ann Davison

By Erica C. Barnett

City Attorney Ann Davison informed the Seattle Municipal Court today that the city of Seattle will no longer participate in the municipal court’s pioneering community court—a therapeutic court that allows people accused of certain low-level crimes to access services without pleading guilty to a crime. The decision effectively represents the end of community court in Seattle.

“After considerable thought and discussion,” Criminal Division Director Natalie Walton-Anderson wrote in a letter to municipal court judges Friday afternoon, “the City Attorney has decided to end the criminal division’s participation in Community Court. We recognize that Community Court has been part of the Seattle Municipal Court’s practice for many years, and that many will be disappointed by this decision.

“However, I want to assure you that the City Attorney remains committed to the principles behind the original formation of Community Court, and we remain committed to working with court and the Department of Public Defense to mitigate the potential impacts of this decision and to work together to find innovative and effective ways to address the criminal justice issues in our city.”

According to Judge Damon Shadid, who established and oversaw community court, Davison’s office “never negotiated in good faith regarding the changes they wanted in community court. They came with demands and if their demands weren’t met exactly, they continually threatened to pull out of the court.” Shadid spoke to PubliCola in his personal capacity, not in his role as a judge

In a statement, King County Department of Public Defense director Anita Khandelwal expressed dismay at Davison’s unilateral decision to pull out of community court.

“We are in the midst of a public health crisis. Our community members are dying from drug overdoses and need access to housing and to community-based services,” Khandelwal said. “Evidence demonstrates that the criminal legal system does not change behavior and that it undermines public safety by destabilizing people’s lives. Community Court was a collaborative effort to reduce the harm of the system and instead connect people charged with nonviolent misdemeanor offenses to services. Nonetheless, the Seattle City Attorney … seeks to push people deeper into a criminal legal carceral system that is expensive, deadly, and deeply racially disproportionate.”

One issue that came up during internal deliberations over the future of community court was whether defendants should have to do community service as a condition of receiving services through the court. During the pandemic, the court allowed people to take a life skills class in lieu of in-person community service, an option Shadid said proved to be more effective at helping people achieve their goals than requiring them to do manual labor near the courthouse. In her letter, Walton-Anderson said the work requirement was “a central component” of the original community court plan—one that would have had to be restored for the court to continue.

“The city attorney’s office would accept absolutely no compromise when it came to community service, regardless of the information that was provided to them about the efficacy of community service in the courts or just whether or not its right or wrong to force someone to work in order to receive services.”—Seattle Municipal Court Judge Damon Shadid

In recent months, Shadid said, the city attorney’s main demand was that the court require its participants to complete at least six hours of community service. However, he said, “the city attorney’s office would accept absolutely no compromise when it came to community service, regardless of the information that was provided to them about the efficacy of community service in the courts or just whether or not its right or wrong to force someone to work in order to receive services.”

Davison’s office did not immediately respond to a request for comment about the decision to pull out of community court. In her letter, Walton-Anderson said the city attorney’s office will “shift cases where the defendant is likely to engage with service providers to a pre-filing diversion model.” The letter does not provide any details about this model or how the city attorney will determine which people are “likely to engage with service providers.”

Community court is a therapeutic, rather than punitive, court aimed at people who commit low-level crimes like theft, trespassing, and resisting arrest; people who commit serious misdemeanors, like DUI and domestic violence, are not eligible. Its goal is to address the root causes of people’s criminal activity, such as addiction and homelessness, by enrolling people in case management and services as an alternative to prosecution and jail.

Last year, Davison successfully pushed the court to categorically exclude people on her “high utilizers” list—those accused of more than 12 misdemeanor offenses in the past five years—from community court, arguing that people who commit crimes repeatedly “need meaningful accountability” in the form of prosecution and jail.

The court became an issue in last year’s municipal court elections. Davison-aligned candidates (including one of her own employees, assistant city attorney Nyjat Rose-Akins, running against incumbent, and community court champion, Damon Shadid) argued for drastically changing or eliminating community court on the grounds that it was all carrot, no stick. Rose-Akins, along with incumbent Adam Eisenberg, lost to their more progressive opponents, extinguishing conservative hopes that a new court would make community court more punitive or eliminate it altogether.

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In the letter to judges, which refers to community court as “Community Court 3.0” because it is the court’s third iteration, Walton-Anderson said the current court has not produced results, pointing to the fact that many people fail to appear in court for their first appearances—a point Rose-Akins made repeatedly in her campaign against Shadid last year. Shadid counters that the failure to appear rate for first appearances is “extraordinarily high” for misdemeanor cases throughout the municipal court system; “the only difference now is that in community court, we could try to connect people to services the day they came into court instead of warehousing them in the jail.”

Like many documents from Davison’s office, the letter uses several extreme, cherry-picked anecdotes about community court participants who went on to commit serious crimes to suggest community court is a soft-on-crime failure, including one involving a five-year-old child.

Earlier this month, Davison supported legislation sponsored by Councilmember Sara Nelson that will, if it passes, empower her office to prosecute people for possessing small amounts of drugs and using drugs in public, a first in the city’s history. (The Nelson bill stems from recent state action to make drug possession a gross misdemeanor. For Seattle to prosecute drug users under the new state law, the city has to pass a local law that incorporates—or goes beyond—the state law, which is what the proposed new law would do.)

According to some estimates, the new anti-drug law could result in up to 800 additional prosecutions per year—cases that, because they’ll be in mainstream court, will require full discovery, adding to existing court delays and further increasing the population of the downtown jail, which is currently sending inmates to jails in South King County in response to dangerous understaffing.

Crime, homelessness, Morning Fizz

City Attorney Filing, But Also Diverting, More Cases; City’s Shelter Enrollment Rate Remains Low
City Attorney Ann Davison

 

1. City Attorney Ann Davison’s office released a detailed report this week confirming what PubliCola reported earlier this month: In the first six months of 2022, her office has filed charges in only about half of the criminal cases it has considered, declining to pursue charges at a rate similar to that of her predecessor, Pete Holmes. Between 2017 and 2019, Holmes’ decline rate ranged from just over 40 percent to just under 60 percent, only slightly lower than Davison’s.

Between January and June, the city attorney’s office declined about 51 percent of cases. That number includes cases from a backlog left after Holmes left office, which resulted from a combination of failure to file cases prior to the pandemic and an increase in unfiled cases in 2021, when the Seattle Municipal Court was not operating at full capacity due to the pandemic.

Excluding those cases, Davison’s decline rate was lower (46 percent between January and March and 41 percent between April and June), but without more details about what cases the office considered from the backlog, or what cases came in between April and June, it’s hard to draw long-term conclusions from that comparison.

Digging into the numbers in the report, the rate of domestic violence cases that the office declined has risen steadily over the years, and remains high under Davison (over 60 percent) so far; one reason for this, according to the report, is that domestic violence victims often don’t want to file charges against their abusers. Assault, property destruction, and harassment topped the list of domestic violence cases where no charges were filed.

The report shows that Davison’s office has resolved cases using diversionary programs, such as community court, mental health court, and the Public Defender Association’s Law Enforcement Assisted Diversion program, at least as often as her predecessors, diverting hundreds of theft, assault, trespassing, and other cases to therapeutic courts or social services.

Davison’s office did file charges in a much higher percentage of new non-domestic violence and non-traffic criminal offenses (those committed in 2022) than Holmes—around half in the first quarter of this year and 37 percent in the second quarter. If that trend continues, it will mean that Davison is choosing to pursue charges against more people accused of crimes like assault, theft, and trespassing, which are often crimes of poverty.

 

Ann Davison portrait

Perhaps most interestingly, the report shows that Davison’s office has resolved cases using diversionary programs, such as community court, mental health court, and the Public Defender Association’s Law Enforcement Assisted Diversion program, at least as often as her predecessors, diverting hundreds of theft, assault, trespassing, and other cases to therapeutic courts or social services. Overall, Davison referred about 750 cases to community court, more than 600 to LEAD, and about 180 to mental health court.

Earlier this year, Davison sought, and received, authority to deny access to community court for the 100 or so people on her “high utilizer” list, which includes people with more than 12 cases (not charges) in the past five years. The city attorney’s office really is treating this population differently: In contrast to their overall approach, the office has filed charges in 82 percent of cases involving this group, a decline rate of just 18 percent.

2. The latest quarterly report from the Seattle Human Services Department on the work of the Homelessness Outreach and Provider Ecosystem (HOPE) Team shows an uptick in the number of people who received referrals to shelter from the HOPE Team and actually enrolled in shelter, meaning that they showed up and stayed for at least one night. The HOPE Team does outreach at encampments, primarily the city’s regularly updated list of encampments it plans to sweep.

Between April and June, 173 people went to shelter based on a HOPE team referral, amounting to 41 percent of the total number of people who received at least one referral. (Overall, the team made 458 referrals, including multiple referrals for some individuals). Put another way, that means about 58 people went to shelter on HOPE team referrals every month last quarter. The numbers are approximate, because some people who enroll in shelter choose to remain anonymous, making them harder to track.

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Those numbers, while they represent a slight improvement, continue to reveal that the majority of shelter referrals don’t result in shelter enrollments (and shelter, of course, isn’t housing)—people are getting referral slips but aren’t using them. This can happen for a variety of reasons: Leaving an encampment for shelter can involve a long trek across town, along with tough decisions, such as whether to leave an established street community or abandon a pet.

Notably, the second quarter of this year also included the removal of a large encampment at Woodland Park, which Mayor Bruce Harrell identified early on as one of the top priorities for his administration. As we reported at the time, the city asked the Low-Income Housing Institute to set aside dozens of spots in tiny-house villages—a desirable, semi-private shelter type that has a very high enrollment rate—for people living in the park. Out of 89 shelter referrals at Woodland Park, 60 were to tiny house villages.

The city also made a special effort to ensure that people forced to leave during the high-profile removal, offering direct transportation to shelters for everyone who received a referral, which likely boosted the overall enrollment rate. PubliCola has asked HSD how many of the 173 enrollments between April and June came from Woodland Park and will update this post when we hear back.

Courts, Crime, Development, Environment, Morning Fizz

Ruling on Tree Regulations Coming Soon, City Attorney Filed Charges in Just Over Half of Cases This Year

1. The Seattle Hearing Examiner is expected to rule as soon as next week on a case in which the Master Builders Association of King County and Seattle—a business group that represents housing developers—is seeking a more thorough review of a new tree ordinance that would make it harder to remove trees on private property. The goal of the new restrictions, MBAKS argues, isn’t to protect Seattle’s tree canopy (which includes many trees on public property that wouldn’t be subject to the new restrictions); it’s to prevent new housing in historically exclusive single-family neighborhoods.

“There are people and groups in our City that care deeply about trees and about the health of Seattle’s urban forest,” MBAKS wrote in a letter to Mayor Bruce Harrell last week. “Those are the people and groups we’d like to work with. However, the loudest voices are anti-development groups that have weaponized tree protection to support their singular goal of stopping development in their beloved single-family neighborhoods.”

The new tree ordinance would lower the size threshold for regulated “significant” and “exceptional” trees and make them harder or illegal for private property owners to remove; removing a tree larger than 12 inches in diameter, for example, would require a developer to either replant the tree on site or pay a fee based on the value of the tree.

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Technically, the appeal questions the Seattle Department of Construction and Inspection’s “determination of non-significance” under the State Environmental Policy Act—essentially a conclusion that imposing new restrictions on tree removal (and thus development) will have no significant impact on the city’s environmental policies or its Comprehensive Plan, which guides future development and land use decisions in the city. SDCI and TreePAC are the two groups opposing the Master Builders’ appeal.

The comprehensive plan encourages density inside neighborhoods as a bulwark against suburban sprawl and social inequity, since Seattle’s tree canopy is heavily concentrated in wealthier neighborhoods that were historically redlined to keep people of color out. In addition to more analysis that looks at density, not just privately owned trees, MBAKS has asked the city to consider requiring street trees when developers build new detached houses in single-family zones.

Chart showing Seattle City Attorney's Office Case Filing decisions (filed or declined), January-June 2022

2. City attorney Ann Davison, who announced in February that she would decide whether to file charges in her office receives from the police department within five days, decided to file charges in just over 56 percent of cases between the day she announced the new policy and late June of this year, records PubliCola obtained through a disclosure request show.

This represents a significant uptick in the percentage of cases Davison’s office filed compared to her predecessor, Pete Holmes’, filing rate during the pandemic, but is similar to Holmes’ pre-COVID filing rates when compared to data provided (in chart form) in a report from Davison’s office earlier this year. The overall number of cases coming in from SPD is lower than before 2020 because of a number of factors, including SPD’s decision to stop pulling people over for some minor traffic violations; Davison’s report suggests the cause is “the loss of a significant number of SPD officers.”

The charges Davison declined to file most frequently after announcing the close-in-time filing policy on February 7 included assault, assault with sexual motivation, theft, and property destruction; the charges she has filed most frequently also included assault and theft along with trespassing, harassment, and charges that involve driving under the influence of drugs and alcohol.

Case filings declined during the pandemic, in part, because the court shut down during COVID, creating a massive backlog that the municipal court is still struggling to work through. King County’s jails, meanwhile, remain understaffed even as jail populations rise, leading to conditions that both jail staffers and defense attorneys have described to PubliCola as inhumane. The more misdemeanor cases Seattle sends into this system, the greater the downstream backlog becomes.