The drug possession and public use criminalization bill cooked up to replace City Attorney Ann Davison and Councilmember Sara Nelson’s failed first attempt will become law. It passed 6-3 at a Sept. 19 meeting of the full Seattle City Council.
The bill makes public use and possession of illicit drugs a gross misdemeanor in the city of Seattle, allowing Davison’s office to prosecute people arrested for those crimes. Possession and public use of drugs was already illegal, thanks to a state law that went into effect in July. Council Bill 120645 adopts the same penalty schemes as the state’s bill.
Davison and Nelson’s original bill failed because of concerns from Councilmember Andrew Lewis, a crucial swing vote, over Davison’s decision to withdraw from the community court plan just prior to a vote on the bill. Lewis then joined 23 other members of a task force convened by Mayor Bruce Harrell in coming up with an alternative bill, one designed to include more treatment options for people arrested under the statute.
The new bill does not include any extra money for treatment or outreach programs. It does define diversion as the preferred option in many circumstances. It does so in a section titled, “Policies governing arrests for knowing possession of a controlled substance and use of a controlled substance in a public place.”
Besides authorizing Davison to prosecute drug users at a municipal level, this section — effectively a long suggestion — is the main difference between Seattle’s bill and the state’s.
The guidance section was the subject of extensive debate and discussion at a Sept. 12 meeting of the council’s Public Safety and Human Services Committee. It passed out of that hearing with a vote of 4-1, earning a nod from Councilmembers Nelson, Lewis, Lisa Herbold and Alex Pedersen. Departing Councilmember Teresa Mosqueda was the only “no” vote. The committee’s deliberations included a flurry of proposed amendments — seven in total — almost entirely focused on that key guidance section.
The first amendment, proposed by Herbold and Lewis, was a textual overhaul of the section that added language to create a new “behavioral health alternatives” committee. It was tasked with advising “the Mayor, City Council, the Seattle Police Department (SPD), and the Civilian Assisted Response and Engagement (CARE) Department on an ongoing basis regarding any need for change in operationalized police protocols, legislation, or other policies.” The committee would have no power to approve or reject actual SPD policy. Their other proposed language asks SPD to use officers with 40 hours or more of crisis training “where operationally possible.”
While Mosqueda’s one solo amendment made an effort to clearly define “threat of harm,” a key component of the bill’s instructions for when officers should opt for arrest or treatment, most amendments were concerned with adding recital clauses (the ones that begin with “WHEREAS”) or small tweaks to language that didn’t direct SPD officers to do anything other than try to use their best judgment.
Nelson, during that Sept. 12 committee meeting, was the one to point out how problematic that can be:
“In the Aug. 14 special meeting, I expressed concern that requiring officers to assess a threat of harm to others, however that’s defined — and we haven’t seen the EO yet, the executive order — inserts officer discretion directly into the law and could open the city up to allegations of biased policing, and/or be used in a motion to dismiss by the defense. Since that meeting, none of the information that I’ve received, which has been extensive, has allayed those concerns.”
Her original bill was rejected when Lewis flipped his vote at the last minute, citing a lack of access to community court and a dearth of diversion programs as a major concern. The new bill attempts to beef up those alternatives to arrest and prosecution and to strengthen language around when the cops should choose to divert rather than arrest. As it comes before budget season, it does not contain any additional funding for diversion programs.
Nelson, for her part, was not impressed with Lewis and Herbold’s remix of her bill.
“This substitute [bill], despite the changes that have been made that I’ve seen only this morning, only increases my concern about legal risk because it adds a whole bunch more conditions and complexity,” she said.
Her solution to this uncertainty was to add some ambiguity. She offered two amendments, submitted to amend Lewis and Herbold’s amendment, that focused on changing the word “will” to “may” when officers were asked to react to or assess certain situations.
The overhaul amendment was sent to full council, as were Nelson’s minor language modifications. At full council, four new amendments were introduced: one from Herbold clarifying language in the officer guidance section of the bill; a second from Nelson undoing Lewis’ behavioral health advisory committee provision; a third, also from Nelson, striking the bill’s wording that urged SPD to try really hard to send officers with 40 hours of crisis intervention training to deal with public drug use or possession; and a fourth from Mosqueda reversing Nelson’s change to “may” from “will” in the language around when to divert an individual who officers have determined to not be a threat to others. Herbold’s amendment made it in while the other three failed.
After all the amendments, nothing in the final bill actually requires officers to take specific actions under specific circumstances.
As Lewis pointed out, “The city council cannot order the police to do anything. … So the language we put into statute, whether it is ‘will’ or ‘may,’ is going to have the same practical effect.”
Mayor Bruce Harrell’s impending executive order, which he promised will clarify the issue of when to arrest or when to divert, does have the ability to create binding guidelines for officers encountering public drug use and possession. However, as of now, who goes to jail has a lot to do with who cops and prosecutors feel should go to jail.
That situation, according to a number of public commenters at the Sept. 19 full council meeting, is unacceptable. Many people, including Councilmember Kshama Sawant, cited SPD Officer and Seattle Police Officers Guild vice president Daniel Auderer’s recent comments regarding the police killing of Jaahnavi Kandula as proof that the department was not qualified to make those calls.
Activists lined the back holding cardboard signs listing the “reasons why we cannot allow SPD to use their discretion.” The 12 reasons covered an array of misconduct, including multiple instances related to SPOG officers. Two signs noted that SPD officers were seven times more likely to stop Black people and seven times more likely to use force on Black people.
As Erica Rusher, a public defender with King County, put it, describing the decisions that police officers make during drug arrests, “If you vote yes today, you do so knowing that these distinctions are based on race and class and nothing else.”
Shannon Kelly, a social worker with the King County public defender’s office, put it a bit more bluntly.
“The amendments are not good enough. They will not get people into treatment. There is no infrastructure set up to do that,” she said. “Voting yes on this either has to be intentional malice or severe cognitive dissonance because you can’t say you care for people and vote for this. Because you’ll kill people.”
Read more of the Sept. 20-26, 2023 issue.