Federal judge blocks Seattle’s ban on police use of less-lethal crowd control tools

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SEATTLE, WA – Coming through in the evening of July 24th, a federal judge enacted a temporary restraining order against the Seattle City Council’s ban on the use of chemical irritants and other less-lethal means of enforcing crowd control by police during protests and riots.

U.S. District Judge James Robart issued the ruling in favor of the Department of Justice, who presented the motion with regard to the Seattle Police Department being hindered from using crowd control tools by way of the City Council.

The emergency hearing that the DOJ prompted made use of a roughly decade-old agreement between the Justice Department and the SPD to land the restraining order. The agreement used by the DOJ to win the court’s favor pertained to the two organizations working in conjunction to overhaul the SPD based upon the DOJ having nearly sued the SPD for alleged excessive force almost 10 years ago.

In the hearing, the DOJ argued that if the City Council’s ban were implemented then it would not only pose safety issues for officers and the public – but also encroach upon the terms set forth in the Consent Decree.

The DOJ filing stated the following on that matter:

“There is a serious question regarding whether the removal of these less lethal options (in particular without additional guidance or training to officers) is in violation of the Consent Decree’s provisions.”

An attorney for the Seattle Community Police Commission (the civilian advisory council for the SPD) attempted to argue that the City Council’s ban on chemical irritants and less-lethal weapons was a matter of lawful versus unlawful policing.

Likening the police and rioters clashing as a scene from a war-torn battlefield, attorney David Perez defended the ban, saying:

“The choice isn’t between sticks and guns and tear gas. The choice is between constitutional policing and unconstitutional policing.”

While Perez’s dramatic framing of the SPD’s use of less-lethal crowd controls techniques didn’t work to sway Judge Robart, the judge did state that the restraining order would be “very temporary,” but didn’t go into further detail as to what that meant.

Considering that this ruling falls in tandem with the already present Department of Homeland Security assets deployed to federal buildings in Seattle to ensure no harm or damage transpires on federal property, it seems that there shall be adequate resources to keep protests from egregiously escalating.

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Here’s Law Enforcement Today’s previous report on when the Seattle Police Chief was worried about the ban going into effect with protests planned for the weekend ahead. 

In light of the Seattle City Council banning a myriad of tools used to effectively control crowds during riots and protests, Seattle Police Chief Carmen Best issued a warning to her officers. Additionally, she requested the City Council rethink the language in place, essentially banning the use of chemical irritants and less-lethal ammunition during these riots.

In the letter addressed to the City Council, Chief Best notes the following:

“SPD has confirmed with the City Attorney’s Office that the City Council ordinance banning the use of less lethal tools – including pepper spray – commonly used to disperse crowds that have turned violent, will go into effect this weekend as written.”

The letter continues, noting how Chief Best did her “due diligence of informing,” the council that there will be adverse effects due to officers being able to safely control violent crowds:

“It is a fact that there are groups and individuals who are intent on destruction in our City. Yes, we also have seen weeks of peaceful demonstrations, but two recent events (Sunday, July 19th and Wednesday, July 22nd) have included wide-scale property destruction and attacks on officers, injuring more than a dozen, some significantly.”

Chief Best explained that the weekend where this ordinance regarding limiting police tools used to disperse crowds and address riotous individuals goes into effect also coincides with numerous demonstrations in the coming days:

“Several events are planned across the city that will foreseeably involve many of the same violent actors from recent days. There is no reason not to assume we will continue to experience property destruction, arson, looting, and attempts to injure additional officers throughout the weekend and beyond.”

Apparently, many have challenged the SPD as to why more people acting criminally during these riots haven’t been getting arrested, to which Chief Best explains that officers can only enact an arrest when it is safe to do so.

According to the chief, this new ordinance will only make it so even less can be arrested safely:

“In large crowds, there is no safe way for officers to effect arrests when their colleagues do not have the tools necessary to protect them. As City Council’s legislation goes into effect, it will create even more dangerous circumstances for our officers to intervene using what they have left – riot shields and riot batons.”

While the ordinance does grant officers to use OC spray in an extremely limited scope – the spray cannot come into contact with non-criminal suspects. Essentially, this bans police from being able to feasibly use OC during any interaction since the nature of these riots:

“While we recognize a limited exception for the targeted use of OC spray, the exception does not realistically allow for deployment in such a manner that ensures the aerosol does not disperse onto anyone other than the intended subject.

“For these reasons, officers who typically deploy with OC as one of their standard less-lethal options will no longer be carrying this tool.”

On July 23rd, Chief Best sent a letter to her staff detailing the anticipated outcomes of these demonstrations and riots. She explained that the federal court has decided to not interject themselves in the decision reached by the City Council, and thus they’ve been left without the proper tools:

“Given these facts, and with many individuals clearly intent on violence as in recent events, we are significantly adjusting our deployment plans for all upcoming major events, including this weekend.”

The chief noted that at the end of the day, when it comes to officer safety or protecting property from being damaged – she’s going to err on the side of officer safety every time:

“I want to be clear that I will never ask you to risk your personal safety to protect property without the tools to do so in a safe way.”

The SPD intends to change the manner in which they’re going to approach these demonstrations, but it’s unclear in what manner that will be.

The chief simply informed her team that they’ll be further updated on a plan of action and that they won’t be expected to risk life and limb while only armed with a gun, baton, and body armor:

“Simply put, I cannot ask any of you to do this work limited only to your sidearm, baton, and body as tools. These are not tools that are reasonable in modern policing for crowd control.”

In closing, the letter addressed to the SPD personnel from the chief explained that more details will be coming in on what to do with banned less-lethal items that officers may still have in their possession.

After that, all Chief Best could close with was “please stay safe.”

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