The Seattle City Council is preparing to pass new crowd control legislation in January that would largely defer to SPD.
At the Seattle City Council’s last public safety committee meeting of the year, councilmembers discussed new legislation to roll back restrictions on the Seattle Police Department’s (SPD) use of less lethal weapons for crowd management. The previous council passed legislation in 2020 and 2021 in response to SPD’s violence during the protests that followed the murder of George Floyd by police in Minneapolis. However, court actions and SPD interference prevented that legislation from ever being implemented.
Mayor Bruce Harrell transmitted the proposed legislation to the council in October right before the City had a consent decree hearing before Senior Judge James Robart of the United States District Court for the Western District of Washington. During the hearing, Robart expressed frustration that the City hadn’t yet submitted a new draft of SPD’s crowd control policy, which he had requested in October of 2023.
Should that new crowd control policy meet with the Court’s approval, the City and the Department of Justice are likely to file a joint motion to terminate the consent decree, ending federal oversight of SPD.
The catch is the City says they cannot submit the policy until it is in line with all existing legislation, including the two pieces of less lethal weapons legislation from 2020 and 2021, hence the new proposed crowd control legislation that would repeal both those bills.
However, critics of police brutality worry that little has changed to protect protesters and that SPD is being given carte blanche with the new policy.
MJ Jurgensen, a protester and one of 50 plaintiffs in the lawsuit against the City and SPD that settled earlier this year for $10 million, described the 2020 Black Lives Matter protests as a “warzone.”
“By and large, protests from the side of the protesters were peaceful,” Jurgensen said. “We would be standing there. Felt like the cops would get bored, wanted [it] to end, and would just unleash on us.”
At one protest, Jurgensen had a police officer kick a sign they were carrying into their shin. They then were shot in the leg with a blastball, which shattered a chopstick they had in their pocket, causing a large leg wound that still bothers them today, more than four years later.
“My injuries were kind of on the lesser end of some of the things that happened,” Jurgensen said. “A lot of people said it. We came for George Floyd, and we stayed because we witnessed police brutality firsthand.”
Karen Koehler of Stritmatter Kessler Koehler Moore is the attorney who won the $10 million settlement from Seattle on behalf of 50 protesters. “This is a license to do everything but kill protesters,” Koehler said about the new proposal. “So I think it’s ridiculous.”
History of less lethal weapons in Seattle
In 2020, SPD’s brutal treatment of protesters was on display before the world, including tear gassing largely residential neighborhoods, targeting medics and journalists, and using a variety of other harmful less lethal weapons, including blast balls, flash bangs, and pepper spray.
In response, the City Council passed legislation that banned SPD from using all less lethal weapons. However, Robart issued a temporary restraining order barring the new law from going into effect.
Later that year, U.S. District Judge Richard Jones held the City in contempt for failing to stop the “indiscriminate” use of blast balls and pepper spray against protesters.
The City Council tried again in 2021, passing a bill that didn’t outright ban less lethal weapons but instead tried to govern their use. It banned the use of blast balls and ultrasonic cannons under any circumstances while limiting the use of tear gas and pepper spray.
Both attempts provided a private right of action for individuals injured by the use of these weapons, although the Council weakened the right in the 2021 version.
The 2021 bill also required officers from other law enforcement agencies providing “mutual aid” to abide by the same rules governing less lethal weapons as applied to SPD. As The Urbanist reported, SPD called for help from at least 23 different law enforcement agencies during the 2020 protests. At that time, officers from these agencies weren’t ruled by SPD policies relating to use of force or accountability, using weapons such as “Stinger” rubber pellet blast grenades, 12-gauge beanbag “shotgun” rounds, military style SAF smoke, poisonous HC smoke, and “Aerial Flash-Bang” devices.
While these mutual aid agencies were responsible for at least 547 uses of force during the protests, there is no evidence the Office of Police Accountability investigated any of these incidents.
Then-Chair of the public safety committee Lisa Herbold consulted with both the Department of Justice and the court-appointed monitor who oversees the consent decree when preparing the bill. However, it required SPD to submit new less lethal weapon policies to the court before it could go into effect, an action it doesn’t appear SPD ever took. Both Mayor Jenny Durkan and Chief Adrian Diaz criticized the bill as passed, and Durkan refused to sign it.
Neither of these bills was actually allowed to govern policy in Seattle.
The new crowd control legislation
In addition to repealing both former bills, the new legislation transmitted by Harrell specifies that less lethal weapons can be used for crowd control when circumstances occur that create an imminent risk of physical injury to any person or significant property damage. Any and all less lethal weapons are on the table, including blast balls, tear gas, and pepper spray, and there is no oversight included over the use of any potential new less lethal weapons that might be developed in the future.
Washington State restrictions on the use of tear gas are incorporated in the new bill. But much about the use of less lethal weapons is left up to SPD policy instead of being incorporated into the legislation.
The ordinance also removes formal restrictions requiring so-called mutual aid agencies to follow SPD policy when assisting with crowd control. The lack of restrictions means such agencies could potentially deploy weapons not approved for use by SPD, as happened in 2020.
One of the reasons that the Harrell Administration gave for repealing the previous legislation is that mutual aid agencies have refused to assist SPD with these restrictions in place.
The new legislation also makes it harder for individuals injured by police crowd control weapons to seek legal recourse. It entirely removes the private right to action, leaving injured parties to avail themselves of options provided by state and federal law. However, these laws make it much more onerous to receive damages and are subject to qualified immunity and public duty doctrine.
The main oversight of use of these weapons is provided by a requirement for SPD to publish any revisions of their crowd control policy to their website and to prepare an annual report on their use of force in crowd management situations with the Office of the Inspector General.
When presenting to the council, Senior Deputy Mayor Tim Burgess said the new ordinance will clearly establish “the values and rules that govern using less lethal tools in crowd management situations. To put it another way, the ordinance you are considering today will establish restrictions on when these tools can be used, and these restrictions are more substantial than what is required under state statutes.”
Moore and Rinck amendments would add restrictions
Councilmember Cathy Moore expressed concern about the new legislation.
“Giving authority really under any circumstance to use blast balls is profoundly troubling to me, and I think we have to be very clear that that authority would be used in the last resort,” Moore said.
Current SPD policy about blast balls is that they should be thrown into space, but the policy doesn’t specify that the weapons need to be thrown away from people nor how much space is required.
“It seems to me that in a way we could take a scalpel to the current ordinance rather than repealing it entirely and basically just saying we’re going to rely on [departmental] policy,” Moore continued.
Moore promised she’d be bringing amendments to the bill. PubliCola reported that she is considering amendments that would require the mayor to approve the use of blast balls as well as tear gas, would require council approval for any new less lethal weapons that are developed, and would require any mutual aid agencies to follow SPD’s policies or instead take on desk duty. She is also looking into preserving the private right of action.
New Councilmember Alexis Mercedes Rinck is collaborating with Moore on some of the amendments.
Oversight and community concerns
In spite of the long delay between Robart’s request for SPD’s revised policy and the present day, the City now seems to be in a rush to pass this new legislation, with Council amendments due Friday, December 20, right before the winter recess.
This means that the Community Police Commission (CPC) won’t have a chance to weigh in with their recommendations before amendments are turned in. The CPC began their discussion on both the new ordinance and SPD’s interim crowd control policy at their last meeting on December 4, and they are currently developing recommendations for discussion and a potential vote at their next meeting on January 8.
Joel Merkel, the co-chair of the CPC, explained that Seattle’s accountability system was set up so that such impactful policy would need to go through proper channels before being adopted by either the Council or SPD.
“It’s important the CPC has the opportunity to provide that meaningful input,” Merkel said.
Were the less lethal weapons ordinance to pass, there might also be additional work that would need to be done aligning SPD policy with the ordinance before the policy was ultimately submitted to the Court.
The CPC released a community survey on the crowd control ordinance that closes on January 6. The South Seattle Emerald reported community members have criticized the survey, both in how it has been distributed and in how it has been constructed.
Jurgensen said they hadn’t heard anything about the survey, in spite of it being initially released more than three weeks before The Urbanist spoke with them.
Koehler is vocal in her opposition to the proposed legislation.
“I have seen more than a million pages of documents. I’ve seen some types of promises that we are no longer the same place, and I believe that that’s all smoke and mirrors,” Koehler said. “I don’t see anything that’s really meaningfully changed. And I think that the police actually are now even more emboldened than they were before.”
Jurgensen agreed, saying there’s no evidence to suggest SPD has changed. “I think there have been some performative changes at best,” they said. “Real reform would happen with shifts in the infrastructure.”
Jurgensen pointed to the controversial recording of SPD Officer Daniel Auderer making offensive comments about Jaahnavi Kandula after she was hit and killed by a fellow SPD officer as evidence that SPD’s culture remains the same. Actions they said would have shown a different attitude include preserving the Black Lives Matter Memorial Garden at Cal Anderson Park, allowing interested plaintiffs to meet with Harrell, and passing legislative solutions that weren’t later rolled back.
Koehler criticized the lack of communication and outreach around the development of the legislation.
“I think that if they really wanted to know someone’s opinion, they should have talked to us, those people that spent four years looking at all the records and all the use of force reports, all of the complaints, all of the rubber stamping that the complaints were unfounded, all of the abusive behavior, all of the ploys, the disrespect,” Koehler said.
Jorgenson, who used to be a teacher, attributed the lack of outreach to the plaintiffs in the case to mistaken perceptions about protesters in general.
“I think they have this frankly racist perception that the people that go out and protest are…disposable, that we don’t really matter, we’re not really part of society,” Jorgenson said. “The people that were in the street come from all different backgrounds, come from all different occupations.”
The Office of Civil Rights released a memo raising concerns about the proposed legislation last month: “The Office for Civil Rights is concerned about the implications of this ordinance for public safety, civil liberties, and trust of SPD,” the agency wrote.
The Office of Civil Rights went on to state that less lethal weapons “present significant risks for public safety” and that “their use in crowd situations can amount to a form of collective punishment against the public and undermine the exercise of civil liberties.”
“It is important to note that SPD’s 2020 crowd management operations occurred under the ‘objectively reasonable, necessary, and proportional’ standard for use of force that is the primary bulwark against abuse in the proposed ordinance,” the memo stated. “That the standard failed to protect residents in 2020 underscores the need for more effective constraints on the use of force as well as cultural changes created by and reflected in increased police-community interaction and trust.”
The Office of Civil Rights made several recommendations, including preserving the private right of action from the original 2020 ordinance and prohibiting operations “that accept from the onset the injury of the public, or that accept the risk of death or serious injury in defense of property.”
Passage just before Inauguration Day?
The less lethal weapons legislation will be heard again at the public safety committee on Tuesday, January 14. It could receive a final full council vote as early as January 21, one day before Donald Trump’s presidential inauguration. In 2020 Trump threatened to send the National Guard to Seattle to break apart the Capitol Hill Organized Protest (CHOP).
“I had to believe that making the City pay, and that amount of money, that we were making a vital statement about how things needed to change,” Jorgensen said. “And if that’s not the case? Absolutely devastating.”
Amy Sundberg is the publisher of Notes from the Emerald City, a weekly newsletter on Seattle politics and policy with a particular focus on public safety, police accountability, and the criminal legal system. She also writes science fiction, fantasy, and horror novels. She is particularly fond of Seattle’s parks, where she can often be found walking her little dog.