Judge holds Seattle PD in contempt for use of pepper spray

By Mike Carter / The Seattle Times

A federal judge has found the Seattle Police Department in contempt of court for the indiscriminate use of pepper-filled “blast balls” and pepper spray during Black Lives Matter protests this fall, but also cited instances where police were justified in using force against demonstrators.

U.S. District Judge Richard Jones issued a 27-page order Monday in response to a motion by BLM Seattle-King County to find the police department in contempt of his earlier injunction preventing police from using force against peaceful protesters. Jones found a total of four “clear violations” of the injunction: one involving the use of pepper spray and the other three involving blast balls, grenadelike devices that explode and spew pepper gas. It’s a weapon the judge says raises serious issues with the court.

“Of the less lethal weapons, the Court is most concerned about SPD’s use of blast balls, the most indiscriminate of the four” crowd-control weapons whose use he examined. “SPD has often hurled blast balls into crowds of protesters” when no immediate threat to the officers’ safety or public property could be identified, the judge found.

At the same time, Jones highlighted four instances where officers’ use of force complied with his order.

All the other instances cited in voluminous briefs and pleadings filed by BLM and the city’s attorneys were too close to call one way or another, he said, which Jones said was not a good thing for the SPD.

In issuing the contempt order, Jones rejected the police department’s argument that the department was in “substantial compliance” with the injunction and that it could not be held responsible for the actions of individual officers.

Jones asked lawyers for BLM to submit a motion for proposed sanctions by the end of next week.

“Some might say that four clear violations — out of four days of protests and countless uses of less lethal weapons — must surely be insufficient to ‘vitiate’ (spoil) the City’s otherwise substantial compliance,” Jones wrote. “But this is misguided.”

Jones said the incidents he highlighted were more than mere technical violations of the injunction, which he issued after finding that SPD’s use of tear gas, pepper-spray and other crowd-control weapons during downtown demonstrations following the May 25 death of George Floyd in Minneapolis were unconstitutional and that the department had likely violated the rights of thousands of peaceful Seattle protesters.

Detective Patrick Michaud, a spokesman for the SPD, said the department would not comment on Jones’ ruling because the litigation is pending.

Lisa Nowlin, a staff attorney for the American Civil Liberties Union of Washington, which filed the lawsuit along with attorneys from the Seattle law firm of Perkins Coie and the Fred T. Korematsu Center at Seattle University, said SPD needs to be held accountable.

“Seattle Police’s continued use of less lethal weapons against protesters is disturbing and the City needs to focus on protecting freedom of speech and freedom of assembly, rather than using force to prevent protesters from exercising their constitutionally-protected rights,” Nowlin said.

David Perez, from Perkins Coie, said the decision to seek a contempt finding was not made lightly.

“But after witnessing repeated and blatant violations of protesters’ constitutional rights, we had to act,” he said. “This ruling … serves as a reminder that the City cannot violate the Court’s orders without consequences.”

In a statement, Black Lives Matter Seattle-King County added “the use of pepper spray and blast balls against our community is proof that our protests are necessary.”

The office of Mayor Jenny Durkan was not available for comment by press time Monday.

The initial injunction was issued in June and it was modified in July after BLM sought at that time to hold the SPD in contempt of court for its continued use of crowd-control weapons. At that time, SPD agreed to a number of additional refinements to the injunction, including an agreement to stop targeting reporters and civilian medics.

Police were repeatedly confronted with rowdy and sometimes violent protests in June and July, leading to the abandonment by SPD of the East Precinct and the formation of the police-free Capitol Hill Occupied Protest, or CHOP, which crumbled following a pair of homicides.

The most recent call for contempt involved the review of police actions at four protests during the late summer and early fall, and the department’s use of four specific less lethal crowd-control weapons — pepper spray, pepper balls, so-called “blast balls” and paint balls, which are used by officers to mark individuals seen committing crimes.

The protests Jones reviewed were held on Capitol Hill on Aug. 26 during a memorial for Summer Taylor, a BLM protester who had been struck and killed by a car during a freeway protest on July 4; a protest at the headquarters of the Seattle Police Officer’s Guild (SPOG) in the Sodo district on Sept. 7; and protests held Sept. 22 and 23 on Capitol Hill, one in response to a decision by a Kentucky grand jury not to indict the officers who killed Breonna Taylor in March.

Jones said SPD’s use of pepper-balls and paint-balls — both deployed accurately from a shoulder-fired weapon — complied with his injunction in every instance he reviewed.

However, Jones cited one instance of a “clear violation” of his order regarding the use of pepper spray — at the Sept. 7 SPOG protests — and three instances where officers indiscriminately lobbed or threw blast balls into a crowd without being able to identify a specific threat. In two of those instances, he said the officers failed to report the use of the blast balls in their report.

At the SPOG incident, Jones related that an officer rode up behind a group of retreating protesters who were complying with orders to move out of the area.

“Yet, for no apparent reason, the officer sprayed them in the face with OC [pepper] spray,” the judge noted, referring to police body camera and civilian video of the incident for review. “This was a plain violation of the orders.” The officer, the judge noted, did not account for his use of the irritant in his use of force report.

“That the entire incident was brief and that the discharge of OC spray was minimal are irrelevant,” Jones wrote. “It was a prohibited and needless action under the orders.”

There were many instances where Jones said he couldn’t be sure of the propriety of officers’ use of force because of the chaotic nature of the events and unclear video from police body cameras and protesters’ cameras and phones. Often it was not clear whether the officer faced the level of threat needed to use force, he said.

In others, however, Jones said officers acted appropriately. In one instance, during protests on Capitol Hill on Sept. 23, a protester struck an officer in the back of the head with a baseball bat. The officer deployed pepper-spray as he staggered back toward the police lines.

“This use was plainly permitted by the orders,” Jones wrote.

It was the repeated, indiscriminate and untargeted use of blast balls that Jones said concerned him the most.

He cited one instance when he ruled the device was used properly — on Sept. 7 at the protests aimed at the police guild’s headquarters south of downtown. In that case, officers deployed several blast balls in response to someone throwing a Molotov cocktail, which Jones said nearly struck another protester when it shattered and set the pavement ablaze.

Officers, he said, were responding to a serious safety threat and the balls were thrown into open spaces away from individuals, although near where the firebomb had been launched, in keeping with the requirements of the injunction.

However, Jones cited other instances where police misused the device. For example, during the Sept. 7 protest, Jones referred to an incident where police threw several blast balls into a large crowd after a glass shattered behind police lines. At least one of the officers in this instance failed to report his use of the device, the judge found.

On Sept. 27, as officers pushed protesters marching on Capitol Hill away from the East Precinct, Jones said an officer can be seen throwing a blast ball overhand into the crowd — they’re supposed to be lobbed underhand — then turned away before it detonated. The judge said the officer’s action “demonstrates a clear lack of care for whether the blast ball landed.”