Last month, our state Supreme Court sided with conservative sheriffs from Washington’s rural counties when the justices handed down a 5-4 ruling in Snaza v. State. The Snaza decision gave sheriffs a new constitutional right to tear gas anyone they deem to be participating in a “riot,” eviscerating the State Legislature’s meager attempts to regulate some police tactics.
To be clear, the Legislature didn’t attempt to ban tear gas, as the Seattle City Council tried to do in 2020. They only passed a law requiring sheriffs in rural counties to ask permission from their county commissioners before cutting loose with the chemical weapons. Even that gesture was a bridge too far for our Supreme Court.
In siding with the sheriffs, the Court willfully ignored dangerous warning signs from law enforcement agencies across the state. In just the last few months, the president and vice president of Seattle’s most powerful police union provoked international outrage after callously joking about a young woman’s death. Tacoma police officers face murder charges for killing Manuel Ellis; they’ve also been credibly accused of intimidating Mr. Ellis’s family. The Sheriff of Pacific County and some of his on-duty deputies attended a meeting of the far-right John Birch Society, which famously opposed the 1964 Civil Rights Act. A sergeant in the Spokane Sheriff’s Department was recently placed on leave after knocking out a 62-year-old man’s teeth. The sergeant delivered this savage beating only days after one of Washington’s senior appellate judges accused that same sergeant, the entire Spokane County Sheriff’s Office, and local prosecutors of racist practices. And, as any Seattleite knows, Washington cops have a long history of misusing tear gas.
The Court’s broad ruling in Snaza also casts doubt on the prospects for further police reform in Washington state.
A Constitutional Right to Use Tear Gas
The Snaza in question is Robert Snaza, the Sheriff of Lewis County who is famous for calling COVID mask-wearers “sheep.” Several other conservative sheriffs joined Snaza’s lawsuit, including those who refused to enforce state gun control laws, illegally cooperated with ICE, and picked fights with Black civil rights leaders.
The law these sheriffs challenged, RCW 10.116.030(3), was narrow. By requiring sheriffs to get authorization from the highest elected official in their county before using tear gas, the State Legislature aimed to ensure cops only deployed chemical weapons during actual riots.
This check on police authority to violently disperse crowds seems warranted because Washington’s law enforcement agencies have often defined “riot” far too broadly. In 2020, for example, a federal judge found that Seattle police indiscriminately deployed chemical weapons and other riot control tactics against peaceful protestors.
But requiring these sheriffs to ask another elected county official for permission to use tear gas amounted to too much democracy for the Court. The justices decided that such a policy violated the sheriffs’ authority under Article XI, Section 5 of the Washington Constitution by “interfering with a core function of the sheriff.” The words “core function” do not appear in Washington’s Constitution. This entire idea was made up by judges–much like the idea that state income taxes are unconstitutional.
The Court’s five-judge majority, drawing on a 1937 case that invented this nebulous “core functions” doctrine, concluded that riot suppression was a “core function” of county sheriffs when our Constitution was ratified. Sheriffs must therefore have broad discretion to suppress riots. Requiring them to ask anyone’s permission before using tear gas would unconstitutionally infringe on their authority.
The dissent effortlessly shreds these arguments, pointing out that the Legislature has always put limits on sheriffs’ authority to quell riots, that tear gas wasn’t invented until “about 25 years after our constitution was enacted,” and that no one knows how to define “core functions.” The dissent also points out that the sheriffs didn’t challenge other legislative limits on their ability to use force, like the requirement that sheriffs only use force when there’s no “reasonably effective alternative.” For protests, the sheriffs want to be the only ones allowed to decide what’s reasonable.
Sadly, the majority’s incoherent deference to Washington’s most aggressive sheriffs carried the day. While this decision doesn’t apply to Washington’s seven charter counties—or to big cities such as Seattle—the result amounted to a victory for those in groups like the “constitutional sheriff” movement, who already believe county law enforcement officers should possess dictatorial power. Pacific County’s John Bircher sheriff–who doesn't even have law enforcement training–is now free to deploy tear gas as he sees fit. Rural Washington communities seeking to regulate their law enforcement officials have suffered a terrible blow.
Washington Can and Must Elect Bolder Justices
Washingtonians don’t have to sit back and accept disappointing judicial decisions. Three justices will be up for election in 2024, including one who believes Sheriff Snaza shouldn’t have to ask anyone for permission to use tear gas. Two more pro-Snaza justices will be up for re-election soon. Justice Charles Johnson, who initially ran for office as a joke in 1990 and voted against legalizing gay marriage, is up for reelection in 2027. Justice Barbara Madsen, who wrote that anti-gay marriage opinion, is up in 2029.
We can choose justices who worry more about promoting economic democracy than about giving police and prosecutors even more power.
Austin Field is a public defender in Seattle. Before attending law school at the University of Washington, he was an Army infantry officer, a law firm operations manager, and a public defense investigator. The views expressed are his own.