District judge James Robart issued an order Friday night that blocked a Seattle law prohibiting police from using pepper spray and other counterinsurgency weapons. Although the court calls it “very temporary”, it is also very doubtful from a constitutional perspective. I do not see the authority of a federal judge to prevent the city of Seattle from determining which equipment and devices may be used by its own officials, particularly in response to the federal government's objections to government policies. In my opinion, the court is not empowered to make such a political decision, not even on a "very temporary" basis. Update: Another federal judge made a more credible decision than denied the Oregon Attorney General's request to set limits on federal officials. The Attorney General's filing in Oregon was long and rhetorical.
The Seattle City Council unanimously passed the new law last month and has been judged by many to be at risk for its own officials. Many Seattle officials have been injured by rioters.
However, this is a political judgment that must be made by elected officials and not by an unelected federal judge. In addition, the Justice Department's objection of how the city equips and directs its own police force is an interference with decision-making at local and state levels.
Even if I disagree with court decisions, I usually have an idea of the legal basis for the claim to authority or the decision of the court. I honestly have no idea about Judge Robart's reasoning. He only told a city that it could not refuse to use certain forms of non-lethal violence and could not determine how its officials would react to mass protests.
This would be less controversial if the court found that the city's laws or policies were unconstitutional to promote abusive arrests or practices. This was not a policy that resulted in illegal arrests or denial of constitutional rights. It was not a contractual dispute or a breach of an enforceable agreement with the federal government. This was intended to protect citizens from mass demonstrations. I don't really agree with politics, but I'm not a member of the Seattle City Council. Nor did Judge Robart.
Judge Robart looked rather casual due to his order. He said he wanted the federal government and the city to have productive discussions. According to the Times, he added, "I urge all of you to use this as an opportunity to find out where we are and where we are going. I cannot tell you today whether explosion balls are a good idea or a bad idea, but I do know I approved it a long time ago. "
Again, it doesn't matter whether the court thinks that explosion balls are "a good idea". They are widely used non-lethal devices. As I recently discussed in my testimony in Congress on the controversy surrounding the protests in Lafayette Park, they have been restricted by courts to protect initial adjustment activities and excessive use of violence.
Again, I do not see this as the basis for imposing a discretionary decision on a city about the correct use of violence in mass demonstration cases.
As temporary as this order may be, it cannot be temporary enough.