Ninth Circuit Rejects Second Amendment Challenge to Seattle's Use-of-Force Policy

Steven D. Schwinn, John Marshall Law School

The Ninth Circuit today rejected a Second Amendment challenge by Seattle police officers to the city's use-of-force policy. The ruling means that the policy stays in place.

The case arose when Seattle agreed to adopt a use-of-force policy for its police officers as part of a settlement agreement with the U.S. government in a case alleging that Seattle police engaged in a pattern or practice of excessive use of force. The policy says that "[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective." It goes on to provide a set of factors that officers must consider to determine whether a use of force is objectively reasonable, necessary, and proportional to the threat, but only "[w]hen safe under the totality of the circumstances and time and circumstances permit[.]" The policy requires officers to use de-escalation tactics in order to reduce the need for force only "[w]hen safe and feasible under the totality of the circumstances."

Seattle officers sued, arguing that the policy violated the Second Amendment, due process (fundamental rights), and equal protection.

The Ninth Circuit disagreed. The court applied the familiar two-part Second Amendment analysis and concluded (1) that while the policy "burdens conduct protected by the Second Amendment," (2) it satisfies intermediate scrutiny.

As to the burden step, the court said that the policy "does not resemble any of the 'presumptively lawful' regulations recognized in Heller," and that "the parties have adduced no evidence that the [policy] imposes a restriction on conduct that falls outside the historical scope of the Second Amendment . . . ." As a result, the court held that the policy burdened Second Amendment conduct.

As to the scrutiny step, the court set the level of review at intermediate scrutiny, because the city "has a significant interest in regulating the use of department-issued firearms by its employees," and because the policy "does not impose a substantial burden on [the officers'] right to use a firearm for the purpose of lawful self-defense." The court noted that the government, in adopting the policy, was acting as "proprietor," and not "regulator," in that it was regulating its own officers' use of force. This might've put a thumb on the scale in favor of the regulation, but, if so, it's not clear how weighty a thumb, because the court nevertheless applied intermediate scrutiny (and not a lower level of scrutiny).

The court went on to say that the policy satisfies intermediate scrutiny, because it's reasonably related to the city's significant interests in public safety and officer safety.

The court also rejected the officers' due process and equal protection claims.