Well be damned. Policy intended to prevent unconstitutional policing is not unconstitutional.
We'll be damned. Policy intended to prevent unconstitutional policing is not unconstitutional. SPD

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The Ninth Circuit Court of Appeals on Tuesday ruled that the Seattle Police Department's updated use of force policy—an initiative borne out of the city's court-ordered police reform process—does not violate police officers' Second Amendment rights.

About 125 police officers sued the City of Seattle in 2014, challenging a use-of-force policy that was implemented as part of the consent decree between the city and the Department of Justice. The policy, which instructs officers to only use "proportional" and "objectively reasonable" force, came after federal investigators found that the department engaged in a pattern of using excessive and unconstitutional force.

Officers argued that the policy violated their Second Amendment right to defend themselves with their city-issued guns, as well as their rights to substantive due process and equal protection. (Then-Stranger news editor Dominic Holden pointed out the irony of cops challenging the constitutionality of a policy adopted to prevent unconstitutional policing.)

Today, a panel affirmed a 2014 district court decision rejecting that claim. The opinion, written by Judge William Hayes says there is a "reasonable fit between the [use-of-force policy] and the City of Seattle’s important government interest in ensuring the safety of both the public and its police officers."

“On behalf of the City, I welcome this confirmation that constitutional policing and officer safety go hand-in-hand,” said City Attorney Pete Holmes, whose office defended the city's policy in court. A spokesman for the Seattle Police Department deferred to the City Attorney's office. Seattle Police Officers Guild President Kevin Stuckey, whose union is not a plaintiff in the lawsuit but does represent officers involved, did not immediately respond to a voicemail.

The 21-page opinion states that the panel used a two-step approach to determine whether the policy violates the Second Amendment. First, the court assumed that the Seattle's use-of-force policy could be challenged under the Second Amendment. (The District Court rejected the lawsuit on the basis that it did not even fall under that right.) Second, the court found that, under the policy, police officers can still use firearms to defend themselves. The court also rejected the officers' other constitutional claims.

Seattle's use-of-force policy, which went into effect in 2014 and has since been updated, require officers to only "use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law- enforcement objective.” It also requires officers to use de-escalation techniques to reduce the need for using force. The court found that these provisions are in line with the city's goals of protecting the public.

Interestingly, the court also found that the policy also advances the goal of protecting officers. For instance, the court notes, officers are only expected to use de-escalation techniques when "when safe and without compromising law enforcement priorities" and are permitted to use deadly force when under the "imminent" threat of death or serious injury.

"These provisions ensure that appellants may use their department-issued firearms to defend themselves and the public," the opinion states.

A recent report by federal monitor Merrick Bobb found that the department has recently seen a 60 percent drop in use-of-force compared with 2011. In its statement today, the City Attorney's office cited the use-of-force policy for that drop.

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