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Judge tosses gas mask ban case from WTO
Seattle can't prove man heard the order
Friday, February 18, 2000
By LISE OLSEN
If a mayor issues an order during an emergency and nobody hears about it, can the city prosecute?
No, said a municipal court judge in one case yesterday, raising the possibility that the city may have to drop cases against others accused of possessing gas masks in violation of Mayor Paul Schell's emergency order during the World Trade Organization riots in December.
With pepper spray and tear gas flying, Schell issued an emergency order Dec. 1 that outlawed gas masks for protesters, painters and city workers.
Yesterday, city prosecutors conceded that they could not prove 18-year-old Justin Reed knew about the ban when police arrested and jailed him for bringing a gas mask downtown on the same day Schell signed the ban.
A judge dismissed the case with prejudice, meaning the charge can never be prosecuted.
Out of about 600 criminal cases involving the WTO protests, only 24 remain -- four of them related to possession of gas masks.
Part of the problem with the gas mask cases is that it is unclear when the emergency order actually took effect because neither the order nor Schell's signature bear a time.
An assistant city attorney drafted the order about 7 a.m. Dec. 1. Schell remembers signing it about 10 a.m. The ban was first announced in an 11 a.m. news conference by police Chief Norm Stamper. That news conference included information about hundreds of arrests that took place that same morning, and as a result, the gas mask ban got little media attention.
The timing is important because three people who are still being prosecuted in gas mask cases also were arrested the day the order was issued.
The mayor has emergency
powers that allow him to establish orders that are "imminently necessary for the protection of life and property," according to Seattle's municipal code.
But the gas mask order, announced Dec. 1, was so broad that it could have been applied, for example, to city firefighters.
Schell himself had a gas mask in his city-issued sports utility vehicle as part of an emergency kit, spokesman Dick Lilly said. Lilly said Schell did not use the car during the week of the WTO.
Through Lilly, Mayor Schell said he would not comment on the gas mask order because of the pending cases.
There were several other
potential problems with the gas
mask order, according to interviews
and a Seattle Post-Intelligencer
review of both city and court
documents.
Under the order, those being prosecuted faced as much as a $500 fine and 180 days in jail.
But Supervising Assistant City Attorney Mike Finkle, the author of the original order, described writing ordinances as "a normal part of our duties."
requires the orders be filed at the "earliest practicable time" with the city clerk and presented to the
City Council. Council members were to have met to ratify the gas mask order and others Dec. 2. Members gathered downtown that day, though citizens who wished to speak about the proposed ban were kept outside by guards. Council President Sue Donaldson canceled the meeting because of ongoing protests.
The final version of the order was not presented to the council or filed in the clerk's office until Dec. 6 -- well after the protests had ended.
The mayor originally justified the ban by saying that "many of those engaging in illegal activity had equipped themselves with gas masks in anticipation of the gas, which made it difficult to disperse crowds and halt illegal activity."
But incident reports indicate that the four out of five who were being prosecuted under the ban this week were accused of nothing besides possession of a gas mask. In the fifth case, the city is also filing charges of "pedestrian interference" and "failure to disperse" -- standard misdemeanor charges filed in the WTO cases.
Three of the gas mask cases involve people from the Seattle area. The other two are from out of state.
One of those, Erica Stephen, 25, of Portland was arrested Dec. 2, outside City Hall.
Stephen said she wore a gas mask in an attempt to attend the City Council meeting that was canceled.
Stephen's arrest took place in front of a group of 20 to 30 middle-aged activists and local lawyers who had also come to try to communicate with council members about their objections to the ban on gas masks.
One of the witnesses was long-time criminal defense lawyer Jan Dyer, who immediately offered to represent her. Dyer called the incident outrageous.
"You show up on the steps of City Hall when they call a meeting to discuss this issue and you wear the item that they're calling the meeting to discuss -- that's pure speech. That's a freedom that our mayor should not have been able to impinge on," Dyer said.
P-I reporter Lise Olsen can be reached at 206-448-8390 or liseolsen@seattle-pi.com
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