Seattle Cops Bring Lawsuit Claiming They Have A Constitutional Right To Use Excessive Force

by Nicole Flatow

Over the past year, the Seattle police department has revised its policies on when police can use force, as part of a settlement with the Justice Department over findings that officers used frequent excessive, unconstitutional force on suspects.
But some 125 Seattle police officers responded by filing a lawsuit challenging the new rules. In their view, the new policies infringe on their rights to use as much force as they deem necessary in self-protection. They represent about ten percent of the Seattle Police Officers’ Guild membership. The police union itself declined to endorse the lawsuit.
This week, a federal judge summarily rejected all of their claims, finding that they were without constitutional merit, and that she would have been surprised if such allegations of excessive force by officers did not lead to stricter standards.
The officers claimed the policies infringed on their rights under their Second Amendment and under the Fourth, claiming a self-defense right to use force. Chief U.S. District Judge Marsha Pechman pointed out that the Second Amendment protects the right to bear arms — not the right to use them — and that the officers “grossly misconstrued” the Fourth Amendment when they claimed that it protects them, and not individuals who would be the subjects of police force or seizures.
If they appeal, the officers have little chance of faring better. But their lawsuit does shed light on the sort of resistance officials and police chiefs face as they seek to make their policies more humane. The lawsuit employs rhetoric hostile to the idea of treating vulnerable suspects such as the mentally ill differently, and calls DOJ’s findings on excessive force “highly suspect.” It also embodies a Stand Your Ground-ification of self-defense attitudes in asserting that officers have a right not to de-escalate the situation before turning to deadly force, asserting that their force is protected “regardless of whether or not there existed less intrusive means, or alternatives to self-defense or defense of others, such as inflicting a less serious injury to, retreating from, or containing, or negotiating with a suspect.” (some version of this could be a defense to criminal charges against police, but not to Department policies).
Several years ago, the Justice Department investigated the Seattle department after several high-profile incidents of excessive force, and concluded in 2011 that officers use excessive force about 20 percent of the time. It couched its findings by noting that the “great majority of the City’s police officers are honorable law enforcement professionals who risk their safety and well-being for the public good” but that a “subset of officers” continue to misuse force. This is likely the case in most police departments. And some including DC Police Chief Kathy Lanier have lamented that strong government protections prevent her from firing the bad seeds in her department.
DOJ’s findings of excessive force included one incident in which officers approached a seemingly mentally disturbed man standing in the street yelling at a traffic light while holding a stuffed animal. He didn’t respond when police ordered him to get onto the sidewalk, so they pepper sprayed him. He allegedly then “balled up his fist” so they beat him with a baton, before punching him 14 to 18 times. They later arrested him for pedestrian interference and obstruction.
In another instance, officers reported to the home of a man they “knew was experiencing a mental health crisis” without seeking the assistance of the Crisis Intervention Team, which is trained to assist a person in distress. Instead, they sought to arrest him, and when the man pulled away, proceeded to beat him to the point that he stopped breathing, vomited, and was hospitalized with a brain injury.
In several instances, they pushed and beat suspects simply because they talked back, even when they had no plans to arrest them, or already had them restrained in handcuffs.
The city came to an agreement with the Justice Department, which resulted last year in new policies that for the first time defined “force” as “any physical coercion by an officer,” and required those interactions to be reported to supervisors, according to the Seattle Times. It also requires officers to attempt to de-escalate many situations if possible before turning to force.
In response to the lawsuit, Mayor Ed Murray said, “The City of Seattle will not fight the Civil Rights Division of the U.S. Department of Justice. This is not the 1960s.”