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Federal judge blocks Seattle law banning crowd control weapons as city braces for tumult

Protesters block I-5 on May 30, 2020, in downtown Seattle. (Dean Rutz/Seattle Times/TNS)

In an emergency hearing Friday night, a federal judge blocked Seattle’s new law prohibiting police from using tear gas, blast balls and similar weapons, even as it was scheduled to go into effect Sunday and as the city awaits a potentially tumultuous weekend of protests with federal agents in the area.

U.S. District Judge James Robart granted a request from the federal government to block the new law, which the Seattle City Council passed unanimously last month.

The temporary restraining order, filed Saturday in U.S. District Court, will expire in two weeks.

The U.S. Department of Justice, citing Seattle’s longstanding police consent decree, argued that banning the use of crowd control weapons could actually lead to more police use of force, leaving them only with more deadly weapons.

Robart said the issue needed more discussion between the city and the Justice Department before the change went into effect. Ruling from the bench, just before 9 p.m. Friday night, Robart said the temporary restraining order he granted would be “very temporary.”

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“I urge you all to use it as an occasion to try to find out where it is we are and where it is we’re going,” Robart said. “I can’t tell you today if blast balls are a good idea or a bad idea, but I know that sometime a long time ago I approved them.”

Robart had slapped down an attempt by Mayor Jenny Durkan and Police Chief Carmen Best, earlier this week, to block the new law. In that order, he criticized the legal approach the city had taken and said it had not attempted to meet the burden necessary to issue an injunction.

But Robart granted the Justice Department’s request, filed the day before a police department directive enforcing the ordinance was set to go into effect.

Durkan pleaded on Friday for protesters to show restraint this weekend, as the Trump administration has deployed a team of federal agents to the Seattle area. Federal agents in Portland have been involved in hostile, violent clashes with demonstrators there in recent days.

In a statement issued Saturday, Durkan spokesperson Stephanie Formas said the mayor believes changes are needed in Seattle Police’s crowd management practices, policies and training.

But the mayor also believes the Council’s ordinance could conflict with the consent decree, Formas said.

“City Council’s legislation imposed changes to the court approved policies before an appropriate review could be done, which is why the mayor and chief raised these concerns with the court in the notice previously filed by the city,” she said.

Chief Best said in a statement posted on the department’s website Saturday that SPD officers would be carrying pepper spray and blast balls while policing expected protests over the weekend.

She wrote she was disclosing that in “a spirit of offering trust and full transparency” and also promised tear gas would not be used.

Best is on the record opposing the ban, writing in a July 23 letter to the Council she would be reckless if she were to put officers into the street — with the threat of violence looming — without the legal tools of protection allowed.

“The Council legislation gives officers no ability to safely intercede to preserve property in the midst of a large, violent crowd,” she wrote.

Christina Fogg, an Assistant U.S. Attorney, argued on Friday that without blast balls, pepper spray and other weapons banned by the Council, police would have only “batons, tasers and handguns.”

Fogg added, “We are setting up a situation where there is a very increased likelihood of excessive force being used.”

Seattle City Attorney Pete Holmes was in the awkward position of defending both sides of the argument. Earlier in the week, he represented Durkan and Best when they tried to block the law. On Friday he represented the City Council in attempting to preserve it.

“There is a validly enacted ordinance, I have a duty under the city charter to defend it,” Holmes said Friday.

Robart had little patience for the argument.

“You were dancing on too many pinheads,” Robart said. “What I hear you saying tonight is now you want the political cover to say ‘we’re supporting the City Council.’”

Left to defend the City Council’s law was David Perez, attorney for Seattle’s Community Police Commission.

Perez accused the Justice Department, under President Donald Trump, of using the consent decree, which was put into place after the police department routinely engaged in excessive use of force and showed evidence of biased policing, for its own political ends.

“I don’t believe, your honor, that the DOJ’s motivation here is to protect the consent decree and that’s really important,” he said. “The DOJ has operated over the last three years to dilute the consent decree.”

Perez said the Department had set up a “false choice” between guns and batons on one hand and pepper spray and blast balls on the other. He said they never objected when Seattle police were widely criticized for using excessive force to quell protests last month.

“Right now you hear the DOJ talking about the possibility of excessive force,” he said. “Where was their concern when that excessive force was being shown day in and day out … It was like a video game, your honor, they made Capitol Hill look like Mosul or Baghdad.”

Another judge’s prohibition against using crowd control weapons against peaceful protesters, from a separate court case involving a lawsuit filed by the American Civil Liberties Union of Washington on behalf of Black Lives Matter Seattle-King County and others, remains in effect. That prohibition, however, does allow some flexibility for officers to use the weapons in certain circumstances.

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©2020 The Seattle Times

Distributed by Tribune Content Agency, LLC.