A Dubious Order against the Seattle Ban on Police Use of Non-Lethal Force

A line of Washington State Patrol officers in riot gear form as protesters point over a barricade during a protest near Seattle Police Department’s East Precinct in Seattle, Wash., June 1, 2020. (Lindsey Wasson/Reuters)A federal judge issued a temporary restraining order against an asinine Seattle law. Unfortunately, the legal theory underlying the order is weak.

Rioting continues to rage in Seattle, with property, construction sites, and cars being torched by anti-American radicals posing as anti-racism, social justice “protesters.” Beginning with Saturday’s organized mayhem, there were dozens of arrests and at least 59 police officers injured attempting to quell the violence.

Could it have been worse? Could it get worse? These are questions raised by a temporary restraining order issued Friday night by a federal district court, which suspended a Seattle ordinance that bars police from using tear gas, blast balls (essentially, rubber-coated grenades), and similar non-lethal anti-riot measures (e.g., pepper spray).

It is often observed that the best way to get a foolish law repealed is to apply it faithfully — or, if you prefer, the old H. L. Mencken snark that “Democracy is the theory that the common people know what they want, and deserve to get it good and hard.”

In that spirit, as violence and chaos took hold in the Pacific Northwest last month, Seattle’s ultra-progressive City Council unanimously enacted this law barring the textbook non-lethal police response. It is an inane policy because, stripped of standard non-lethal tactics, police are left with only lethal tactics, such as firearms, and such non-lethal weapons as tasers and batons, which necessarily bring them into close contact with violent subversives. That is, instead of numerous injuries sustained by police and rioters, we could be talking today about numerous deaths.

Realizing that, at the end of an emergency court hearing on Friday night, Judge James Robart issued a temporary restraining order against enforcement of the ban, to expire in two weeks. He did so at the Justice Department’s urging. Judge Robart’s order seems to be long on hope of preventing fatalities and of getting the interested parties to reconsider their position — particularly the lawmakers, there being no hope for the rioters.

Regrettably, the TRO seems to be short on law.

I am not as convinced as is the estimable Jonathan Turley that Robart’s order is indefensible. But I’m close. As Professor Turley points out, judges are not supposed to do policy — that’s for lawmakers. Federal courts are only supposed to step in if a state law violates the Constitution or some federal law that legitimately trumps the state (because it involves some matter on which the Constitution makes federal law supreme). Our Constitution, however, undergirds a federalist system in which the states are generally supreme in exercising police powers. At least on the surface, there is nothing in federal law that bars a city or state from enacting an ordinance that limits the kind of weaponry its own police force is permitted to use against its own citizens. The Constitution does not make stupidity illegal.

So what is the Justice Department’s theory — the one Judge Robart adopted, at least temporarily? Well, the Seattle Police Department is under a consent decree. I wrote about these several times during the Obama era. The Obama strategy (which will be the Biden strategy if the former vice president is elected president) was to remake police departments across the country by (a) having the Justice Department sue the relevant city for a pattern or practice of discriminatory law enforcement, and then (b) convincing the city to sign a consent decree agreeing to adopt Obama-approved policing and accept federal monitoring. Not much convincing was necessary with a city such as Seattle, which is controlled by progressive Democrats.

On Friday night, the Trump Justice Department appears to have creatively leveraged the 2012 Seattle consent decree to the unlikely advantage of the city’s police. If the ban went into effect, the feds argued, the police would be put into the position of inexorably violating the city’s consent decree with the Justice Department. That is, unable to use non-lethal riot-control measure, the police would be reduced to lethal and other more perilous riot-suppression methods; such methods would necessarily run afoul of the decree, which was intended to prohibit unduly harsh policing.

It’s a clever argument, but ultimately not convincing. Plainly, the police also have the option of either doing nothing and allowing the rioters to run rampant, or using the more harsh methods that are not banned by the ordinance — and then arguing, if there are deaths or injuries, that the use of force was commensurate with the risk of death, destruction and serious injury caused by the rioters.

That is a terrible choice. It is, nevertheless, the choice made by the lunatic legislators democratically elected by the oh-so-progressive people of Seattle. And it is a choice they are entitled to make. Unless one accepts the premise that, by signing a consent decree with the Justice Department, a city or state government entirely forfeits its police powers to the federal government, Seattle retains the authority to limit the arsenal available to its law enforcement officers.

“The law is a ass — a idiot,” yelped Dickens’ Mr. Bumble. For the next two weeks, at least, Judge Robart has decided an asinine law will not be enforced. He may not have had authority, but he had his reasons. Dark as they are, the news accounts from Seattle could otherwise have been much worse this morning.

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