U.S. District Judge James Robart issued an order Friday night that blocked a Seattle law prohibiting police from using pepper spray and other anti-riot weapons. While described by the court as “very temporary,” it is also very dubious from a constitutional standpoint. I do not see the authority of a federal judge to stop the City of Seattle from determining what gear and devices may be used by its own officers, particularly in response to the federal government objecting to the state policy. The court in my view does not have the authority to make such a policy decision, even on a “very temporary” basis. Update: A different federal judge issued a more credible ruling in rejecting the demand of the Oregon Attorney General to put limits on the federal officers. The Oregon Attorney General’s filing was long on rhetoric and short on the law.
The Seattle City Council passed the new law unanimously last month and it was denounced by many as putting its own officers at greater risk. Many Seattle officers have already been injured by rioters.
That however is a policy judgment to be made by elected officials, not an unelected federal judge. Moreover, the objection by the Justice Department on how the city outfits and directs own police is an intrusion into local and state policy decision making.
Even when I disagree with judicial decisions, I usually have some idea of the legal basis for the claim of authority or the ruling of the court. I honestly do not have a clue on Judge Robart’s rationale. He just told a city that it could not reject the use of certain forms of nonlethal force and could not stipulate how its officers respond to mass protests.
This would be less controversial if the court found that city laws or policies were unconstitutional in furthering abusive arrests or practices. This was not a policy leading to unlawful arrests or the denial of constitutional rights. It was not a contractual dispute or the violation of an enforceable agreement with the federal government. This was meant as a protection for citizens in mass demonstrations. I actually disagree with the policy but I am not a Seattle City Council member. Neither is Judge Robart.
Judge Robart seemed rather casual on the basis for his order. He said he wanted to have the federal and city government engage in productive discussions. According to the Times, he added “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. 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.”
Once again, it really does not matter if the court believes that blast balls are “a good idea.” They are widely used non-lethal devices. As I discussed in my recent testimony in Congress on the controversy surrounding the protests in Lafayette Park, they have been limited by courts in their use to protect first amendment activities and excessive use of force.
Again, I fail to see that as a basis for enjoining a city on a discretionary decision over the proper use of force in mass demonstration cases.
However temporary this order may be, it cannot be temporary enough.