Seattle’s Graffiti Law Reinstated by Court of Appeals
By David Kroman Feb. 2, 2024 at 2:16 pm Updated Feb. 2, 2024 at 3:27 pm
Seattle can once again enforce its anti-graffiti laws following a ruling Friday by the 9th Circuit Court of Appeals overturning a previous court’s finding that the statute was unconstitutional.
It’s a victory for Seattle City Attorney Ann Davison, who made public disorder and specifically graffiti crackdowns central to her campaign two years ago.
“Graffiti is a massive problem for our city, costing taxpayers, businesses and residents millions of dollars while creating widespread visual blight,” Davison said. “We must have as many tools as possible to protect neighbors and residents impacted by graffiti.”
The case was brought by four people arrested after using chalk outside of Seattle’s East Precinct. An attorney for the plaintiffs, Braden Pence, said the ruling still left open a path to strike down parts of the graffiti law.
“Our fight for the right to criticize the Seattle Police Department in children’s sidewalk chalk written on public property without fear of arrest and booking into jail is not over,” Pence said.
The case is part of the long tail of 2020 — and the frequent protests of that year and the next — and centered on what qualified as protected speech versus unlawful activity.
In January 2021, four people — Derek Tucson, Robin Snyder, Monsieree de Castro and Erik Moya-Delgado — were arrested by the Seattle Police Department for writing statements like “[Expletive] the Police” and “peaceful protests” in chalk and charcoal on city walls and sidewalks near the East Precinct on Capitol Hill. The people spent a night in jail, but were never prosecuted. The two-year statute of limitations has expired.
In making the arrests, officers cited the law barring writing, painting or drawing on public property without permission.
The four people sued, arguing the law was overly broad under the First Amendment and could, in the wrong hands, mean that children drawing on the sidewalk during a parade could theoretically be arrested. They also argued the law was overly vague under the 14th Amendment.
Judge Marsha Pechman of the U.S. District Court of Western Washington agreed, initially tossing the entire part of the law regulating property damage, including graffiti. She later clarified her injunction to only apply to the graffiti section.
Pechman wrote at the time that the city’s 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 City Attorney’s Office appealed the ruling to the higher court last year, calling the lower court’s hypothetical scenarios “far-fetched.” Pechman, attorney’s argued, did not demonstrate that the law would have a dangerous chilling effect on First Amendment rights.
The three-judge panel sided with the city.
The plaintiffs in the case, the judges found, had not demonstrated that the law would be disproportionately used for unconstitutional purposes to the extent that justified tossing the statute. Federal courts should not “strike down laws in their entirety just because the legislature could have more carefully crafted the statutory language to avoid some unconstitutional applications,” they wrote.
The law’s alleged vagueness was also not reason enough to strike it down entirely, the judges found.
“The mere fact that the city and its officers have discretion to enforce the local ordinance in some circumstances and not others is not a sufficient basis for concluding that the local ordinance is wholly vague such that it can never be enforced,” they wrote.
Spokesperson for Mayor Bruce Harrell, Callie Craighead, said the Mayor’s Office appreciates the “clarity” the ruling brings. Harrell’s office will work with the Seattle Police Department and City Attorney’s Office on “enforcement efforts that strike a balance between larger penalties for prolific taggers and diversion options for low-level offenders to provide them with appropriate avenues for creative expression and discourage future offenses,” she said.
Historically, around 900 property damage cases are referred to the City Attorney’s Office every year, according to the office. In naming public disorder as a priority, Davison has argued uncleanliness and disarray creates breeding grounds for more serious crimes.
David Kroman: 206-464-3196 or [email protected]; Seattle Times staff reporter David Kroman covers City Hall.