Seattle Chapter of National Lawyers Guild Opposes WA Substitute Senate Bill 5038

SEATTLE, Feb. 19, 2021 – The Seattle Chapter of the National Lawyers Guild (“NLG Seattle”) opposes WA SSB 5038 because it grants even more unchecked discretion to WA law enforcement in its application. This discretion, coupled with a well-documented political bias among WA law enforcement toward right-wing, far-right, and fascist groups, would result in the targeting of Black, Indigenous, and people of color (BIPOC) communities and further erode first amendment rights.

Specifically, NLG Seattle issued the following Comment to WA lawmakers to oppose WA SSB 5038:

*First, under Subsection 2(a), the definition of “weapon” grants law enforcement discretion to make subjective determinations about similarity, capability, commonality, and intent. There is a well-established history of right-wing and far-right political bias among WA law enforcement. This bias has already resulted in various violations of first amendment rights, such as when WA law enforcement made a subjective determination at a leftist, progressive rally that the sticks activists used to hold their protest signage were weapons but did not apply this same analysis at right-wing and far-right rallies. NLG Seattle opposes the passing of a law that allows for even more unchecked law enforcement discretion. Moreover, existing state law (specifically, RCW 9.41.270) already addresses and criminalizes brandishing a weapon with the intent to intimidate others, which renders Subsection 2(a) duplicative and unnecessary in its entirety. *

*In the alternative to striking Subsection 2(a) in its entirety, NLG Seattle proposes to limit the definition of a weapon to “firearms” for the foregoing reasons. Second, under Subsections 2(a)(b)(d), the definition and use of “permitted demonstrations” is unconstitutionally vague. Again, this grants law enforcement subjective discretion to determine what is and what is not a “demonstration.” This is dangerous for first amendment protection, as it invites the chilling of free speech when it is not politically aligned with law enforcement officer’s personal views. In addition, the visitor exception to the definition of “permitted demonstrations” allows an escape hatch for the right-wing and far-right members who frequent the western Washington region to engage in violence at leftist, progressive protests. NLG Seattle opposes the passing of a law that allows for even more unchecked law enforcement discretion, a further erosion of first amendment protections, and another legal loophole for right-wing and far-right violence. In the alternative to striking Subsections 2(a)(b)(d) in their entirety, NLG Seattle proposes to strike the visitor exception for the foregoing reasons. Third, under Subsection 2(c), it is improper to condition the scope of this law upon the “employing agency’s policies.” First, if the employing agency’s policy allows law enforcement to carry even when off-duty, then this law would allow off-duty law enforcement to openly carry at demonstrations. This scenario would present constitutional issues because off-duty law enforcement and military members would be treated differently from the general public under this law. Second, for the aforementioned reasons, it is concerning to leave the application of a law in the tested-and-failed hands of law enforcement policymakers. NLG Seattle opposes the passing of an unconstitutional law that, among other issues raised, allows law enforcement to self-direct the scope and application of the law. *

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