Durkan, Best say Seattle City Council’s ban on police ‘crowd-control weapons’ conflicts with consent decree

Mayor Jenny Durkan has asked a federal judge to prevent a new City Council ordinance banning Seattle police from using most “crowd-control weapons” from taking effect later this month, saying it likely conflicts with the consent decree the city entered into with the Department of Justice (DOJ) nearly eight years ago.

Documents filed Friday in U.S. District Court by the city say that the Department of Justice and the court-appointed monitor overseeing implementation of the consent decree have said the new law can’t take effect without the approval of U.S. District Judge James Robart.

Durkan and police Chief Carmen Best are asking the court to stop the ordinance from taking effect on July 26 to give Judge Robart, monitor Merrick Bobb and the DOJ a chance to review it and determine how it impacts policies already approved by the court.

The ordinance passed unanimously on June 15 after widespread condemnation of the Seattle Police Department’s (SPD) use of tear gas, blast balls and other nonlethal weapons against mostly peaceful protesters rallying against police racism and violence downtown and on Capitol Hill.

At the time, the city was likely within sight of getting out from under nearly eight years of federal oversight of its Police Department, however complaints and outrage over police violence against protesters led the city to scotch those plans indefinitely.

The filing by City Attorney Pete Holmes gives official notice of the ordinance’s passage to Robart, who has overseen a sweeping overhaul of the Police Department that resulted from DOJ findings in 2012 that Seattle officers routinely used excessive force and displayed evidence of biased policing.

Until now, the document notes, the city has presented the court and monitor copies of proposed legislation impacting the operations of the SPD to ensure it doesn’t run afoul of the consent decree.

The council’s passage of the new crowd-control ordinance would significantly impact a number of detailed policies already approved by the court, particularly those dealing with use-of-force, crowd management and crisis intervention. Best says the city’s operation of its SWAT team would also be impacted, since many of the less-than-lethal weapons they routinely use with barricaded subjects are specifically banned by the law.

Durkan declined to sign the measure, expressing concerns about it conflicting with the consent decree — which she helped negotiate when she was U.S. Attorney — and that it was scheduled to take effect before the department’s accountability agencies had a chance to review it and offer their advice.

The council allowed for the Office of Inspector General for Public Safety, the Community Police Commission and the Office of Police Accountability to provide their “recommendation to the City Council on whether the Seattle Police Department should be reauthorized to use less-lethal weapons for crowd control” by Aug. 15, nearly three weeks after the new ordinance is set to take effect, according to the court filings.

The ordinance passed following violent confrontations between police and protesters in the wake of widespread outrage over the cellphone-recorded suffocation death of a Black man, George Floyd, under the knee of a white police officer in Minneapolis on May 25.

The ordinance prohibits the use or possession by police of “crowd-control weapons” including kinetic impact projectiles, such as foam bullets, “chemical irritants, acoustic- or directed-energy weapons, water cannons” or any other devices use to disperse crowds through the use of “pain or discomfort.”

Police can use pepper spray, but only on individuals and only when that person is committing a crime, according to the documents.

The city says it has discussed the new ordinance with the monitor, Bobb, who the documents say have “taken the position that the Consent Decree prohibits SPD from implementing changes to the policies required by the Consent Decree until after the DOJ, the Monitor and the court have had an opportunity to review and approve them.”

The city is also asking the court to allow for comment on the ordinance and its possible impact on the consent decree by the city’s so-called police “accountability partners,” which include the Office of Police Accountability, the department’s Office of Inspector General and the Community Police Commission.

Editor’s Note: An earlier version of this story incorrectly stated that the city had discussed the new ordinance with U.S. District Judge James Robart.