Council Declines to Fast-Track Law Empowering City Attorney To Prosecute Drug Users

by Erica C. Barnett

(This article was originally published on PubliCola and has been reprinted under an agreement.)

The Seattle City Council narrowly rejected Councilmember Andrew Lewis' proposal to fast-track a bill empowering City Attorney Ann Davison to prosecute people for drug possession and public use, voting to allow the bill to go through the regular committee process. The impact of the vote is that the Council will take up the bill after they return from the regular August recess, allowing Council staff the time to draft amendments and analyze the latest version of the legislation.

Councilmembers Sara Nelson and Alex Pedersen introduced the first version of the drug criminalization bill last April, after the State adopted legislation making drug possession and public drug use a gross misdemeanor. Initially, Lewis voted against the legislation, citing Davison's unilateral decision to abandon Seattle Community Court, but he has since become one of the bill's most vocal advocates, arguing that the work of Mayor Bruce Harrell's fentanyl task force will produce policy and legal alternatives to the traditional arrest-and-prosecution system.

While the bill says diversion and other options are the "preferred" alternatives to arrest, it does not require diversion or lay out the kind of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop "guidance on diversion" as part of policies that will "state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations."

The latest version of the bill includes 13 additional "whereas" clauses, along with eight new findings about the state of the drug crisis in Seattle. It also adds a new section to the Seattle Municipal Code stating that, in the future, police will adopt policies governing arrests for drug possession and public drug use, and that those policies will state that alternatives like diversion and treatment "are the preferred approach" when police make arrests under the new law.

At a committee meeting to discuss the drug criminalization bill Monday afternoon, Councilmembers discussed several issues with the legislation that PubliCola pointed out two weeks ago.

First, while the bill says diversion and other options are the "preferred" alternatives to arrest, it does not require diversion, provide funding for alternatives to arrest, or provide examples of circumstances in which diversion would be appropriate. Instead, it directs SPD to develop "guidance on diversion" as part of policies that will "state that diversion and referral to services is the preferred response to possession and public use while acknowledging that arrests are warranted in some situations."

Beyond this, the ordinance delegates to individual officers the authority to decide whether a person poses a threat, based on "the totality of the circumstances and the officer's training and experience," which is essentially the current system, augmented by some new training on what constitutes a drug-specific threat.

"The standard mirrors the practical thought process that officers ordinarily apply in the field when deciding whether to make an arrest, and it allows for, it encourages, officers to exercise discretion," mayoral adviser Andrew Myerberg told the Council. If a person is only a "threat to self," the bill says officers should "make a reasonable attempt to contact and coordinate efforts for diversion, outreach, and other alternatives," but leaves that decision, too, up to individual officers.

"The fundamental goal of this ordinance and executives' overall approach to the synthetic opioid crisis is to increase the proportion of individuals suffering from addiction who seek and accept treatment services," Myerberg said.

Councilmember Teresa Mosqueda pointed out the obvious: The mayor's Office has not proposed funding for addiction, treatment, or diversion programs. "It seems important that the resources be sufficiently invested into the alternative strategies so that people are not being given a false promise that there will be a diversion strategy, [but] we don't have those resources," Mosqueda said. "And where will that funding come from?"

The law does not address private use of illegal drugs inside people's homes.

Second, while Harrell has stated (and mainstream media outlets have inaccurately reported) that the bill includes $27 million for treatment and other alternatives to arrest, the bill never mentions money or spending priorities. In fact, as Council Budget Chair Mosqueda noted repeatedly on Monday, the "new" $27 million is a combination of $7 million in grant funding the City didn't spend in previous years, plus $1 million a year from two State settlements with opioid manufacturers and distributors. Harrell has indicated he wants to use the money to stand up and staff the proposed opioid response center he announced in April. That would leave no additional funding for programs like LEAD, REACH, and We Deliver Care, to which Myerberg said police could direct people who break the new law.

"When I'm talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on [officers]. Personally, I believe that the Council should have incorporated State law … and then if some Councilmembers and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance."

—Councilmember Alex Pedersen

At Monday's meeting, Pedersen and Nelson raised concerns that the bill would create ambiguity and introduce new challenges for police officers that would make it harder for them to do their jobs.

"When I'm talking to officers in the field about this [harm to others] concept, I guess there is a concern that it is an additional layer of complexity and standard that would be put on" officers, Pedersen said. "Personally, I believe that the Council should have incorporated State law into our Seattle Municipal Code and then if some council members and others wanted to add policy or funding, they could have done that shortly after adopting the ordinance."

Myerberg said the legislation isn't "asking [officers] to reinvent the wheel." While it is Harrell's "intent" to steer people toward diversion and treatment, officers will still get to make the calls they consider appropriate in all cases, including arrest if they believe it's necessary to prevent harm or get someone to go into treatment or crisis care. "[Harrell is] asking them to do what they already do," Myerberg said. "The executive remains clear that such a decision will be within the discretion of the officer. It will be fact-specific and individual-dependent."

In late July, the Seattle Police Officers Guild "applauded" the new legislation, saying it would help "restor[e] public safety to the city." This suggests that, at the very least, SPOG — which has a history of opposing substantive police reforms — does not expect the bill to cause major disruptions to officers' usual way of doing business.

Including a preference for diversion in the police manual could lead to incremental change. But without significantly more funding, it's unlikely to result in different outcomes, either for people using drugs in public or the general public witnessing public drug use.

Myerberg noted Harrell's personal commitment to encouraging alternatives to arrest and prosecution, which stem partly from his direct experience as a Black man growing up in Seattle during the drug war. But intent is not the same thing as law; mayors come and go, and their lasting impact isn't meaning well, but pushing through tangible, legally binding changes that last longer than a single administration.

Erica C. Barnett is a feminist, an urbanist, and an obsessive observer of politics, transportation, and the quotidian inner workings of City Hall.

📸 Featured Image: Councilmember Alex Pedersen, representing District 4, speaks during a Seattle City Council Public Safety & Human Services Committee meeting on Council Bill 120645. Screenshot from Seattle Channel, courtesy of PubliCola.