Judge blocks Seattle from making vandalism arrests, citing censorship concerns

Seattle police have been barred — at least temporarily — from making graffiti-related arrests after a federal judge issued an injunction on the city’s contested property damage law late Tuesday.

U.S. District Court Judge Marsha Pechman’s order prohibits arrests under the city’s existing law, which four plaintiffs claim violated their First and 14th amendment rights, among other claims, “by being both vague and overbroad.”

The case dates back to January 2021 when the plaintiffs — Derek Tucson, Robin Snyder, Monsieree de Castro and Erik Moya-Delgado — protested Seattle police by writing statements like “[Expletive] the Police” in charcoal and chalk on a temporary concrete wall outside of Seattle’s East Precinct. According to Braden Pence, an attorney representing the plaintiffs, the first person was arrested after writing “peaceful protest” on the wall with a piece of coal.

The law “is written in a way that maybe, if the police were reasonable and could be trusted to exercise their discretion in a just way, it wouldn’t have ever become a problem,” Pence said. “But the fact is they can’t be trusted.”

The city code in question says someone who “intentionally damages the property of another” or “writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person” is guilty of property destruction, which is typically referred to the city attorney to prosecute, if the value of the damage is less than $1,000.

“The way it’s written right now, if I took a stick out to Alki Beach, and I wrote a big heart and threw an arrow through it, that would be a crime, but for Judge Pechman’s injunction,” Pence said noting that the current code does not require any actual or permanent damage to be done.

Pechman wrote Tuesday that the city’s current statute could be used for censorship, noting that “there is allegedly a policy not to arrest children drawing rainbows on the sidewalk,” but the statute would allow for that or the arrest of “those who might scribe something that irks an individual officer.”

The injunction caused turbulence among the city’s criminal law staff on Wednesday, as it enjoined the whole of the city’s property destruction code, not just the section related to graffiti.

“This means that until further order of the Court, SPD cannot take action on damage to property under this law,” a news release from the Seattle Police Department reads. “This is not a matter within SPD or City discretion; we are bound by the court order as it is written.”

In the initial complaint, the plaintiffs only challenge the city’s graffiti policy, “subsection A2” of the broader property destruction code, which can also address incidents like smashing doors and windows on businesses, slashing someone’s tires or the destruction of someone’s personal effects in a domestic violence case.

In the ruling, Pechman wrote, “the criminalization of free speech significantly harms the public interest in far greater measure than the public might benefit from criminalizing property damage.”

Around 900 property damage cases are referred to the City Attorney’s Office annually, and roughly a third of those cases relate to domestic violence, according to data provided by the city attorney Wednesday.

At the end of the day Wednesday, both parties co-signed a joint stipulation to the court, noting that both the plaintiffs and city believe the order should only enjoin A2, the section related to graffiti.

“The City Attorney’s Office is considering with our clients what next steps to take on A2, but we need to get clarification on the scope of the order, first and foremost,” a spokesperson for the city attorney said late Wednesday.

In a subsequent email, a spokesperson said they anticipate Pechman will issue an order confirming the stipulation and narrowed scope of the injunction, noting that the change is “significant because it permits the city to continue enforcing violations involving property damage, a gross misdemeanor.”

Pechman was not available for comment.

When asked whether the Police Department would be appealing or in any way challenging the injunction, a department spokesperson referred back to the written release.

“We understand and share the concerns that are being relayed to us by our community, businesses and residents alike,” the release reads. “We know, as evidenced by the thousands of calls for service we receive each year reporting acts of vandalism and other forms of property damage that property damage is, in fact, a crime that is of significance to community members.”

A spokesperson for Mayor Bruce Harrell, who has been aggressively trying to mitigate permanent graffiti in Seattle since before his election in 2021, noted that the underlying case occurred before Harrell took office, and said that the mayor would continue to find ways to alleviate graffiti and graffiti-related arrests.

“Mayor Harrell remains committed to swift and sustainable action to prevent and remove graffiti and property damage through a comprehensive One Seattle Graffiti Plan — focused on a holistic strategy to break the cycle of tagging and abatement through law enforcement, community engagement, artistic expression, and collaboration,” communications director Jamie Housen wrote Wednesday. “We will continue to activate our neighborhoods with positive, community-led art and abate actively harmful and malicious tagging including hate speech.”

Pence praised the injunction and said he and the other attorneys for the plaintiffs will now focus on determining who at the city made the decision to arrest and book the nonviolent protesters into jail during the pandemic, though low-level offenders were generally not being placed in jail at the time for their safety.

“If someone had gone to the Safeway and stolen a Snickers bar then, they wouldn’t have gone to jail. But if you stood in the street and refused to leave and chanted ‘Black lives matter,’ you were going to go to jail,” Pence said. “And that’s what we’re focused on next.”