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Dingbat Federal Judge Marsha J. Pechman attempts to legalize all property damage in Seattle (under $750)

Well, this is insanity. Jason Rantz explains why property damage appears to be legal in Seattle right now, as long as it doesn’t exceed $750:

And this is the statement, in full:

Late yesterday afternoon, SPD received an order from a US District Court judge that enjoined, in full, enforcement of SMC 12A.080.020 – the City’s misdemeanor property destruction law.  This means that until further order of the Court, SPD cannot take action on damage to property under this law.  This is not a matter within SPD or City discretion; we are bound by the court order as it is written. 

We understand and share the concerns that are being relayed to us by our community, businesses and residents alike.   We know, as evidenced by the thousands of calls for service we receive each year reporting acts of vandalism and other forms of property damage that property damage is, in fact, a crime that is of significance to community members.  SPD is working closely with the Mayor’s Office and City Attorney’s Office to assess next steps with the Court.  

We admit that we were skeptical when we first started hearing about this. Ordinarily in our experience, federal judges are of a very high caliber. Surely, no federal judge would do something so idiotic?

And the answer is yes. Yes, at least one federal judge would do something that idiotic. We are ordinarily nice and respectful when talking about federal judges because you never know when you will appear in front of one, but sometimes we can’t hold back. This is an idiotic ruling by a dingbat judge who should consider retiring. In fact, the Senate should consider impeachment if she doesn't retire. The kindest interpretation is that she is incompetent. The worst interpretation is that she is a radical attempting to undermine the right of property.

It all comes from a case called Tucson, et. al. v. City of Seattle, et. al., Case No: 2:23-cv-00017-MJP (2023). According to the opinion, the plaintiffs ‘wrote political messages, some of which were critical of the Seattle Police Department (SPD), in sidewalk chalk and charcoal on ‘eco-block’ walls that were temporarily erected by the City outside of the SPD’s East Precinct.’ They were allegedly arrested under an ordinance (SMC 12A.08.020) that read as follows:

A person is guilty of property destruction if he or she:

1. Intentionally damages the property of another; or

2. Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person.

Now it does provide for two affirmative defenses—which means that the defendant would have to prove it. The first defense is that the ‘the actor reasonably believed that he had a lawful right to damage such property’ like if you are seemingly given permission. It also made it an affirmative defense that one had express permission.

Whatever one thinks of that ordinance, it has been replaced new version:

A person is guilty of property destruction if the person intentionally:

1. Damages the property of another; or

2. Writes, paints, or draws any inscription, figure, or mark of any type on any public or private building or other structure or any real or personal property owned by any other person unless the person has obtained the express permission of the owner or operator of the property.

That seemed to move ‘permission’ from being an affirmative defense to instead it being that the lack of permission had to be proven beyond a reasonable doubt (and we support that change). Meanwhile the defense of mistaken belief one had permission was still an affirmative defense.

In any case, the judge decided this entire law was unconstitutional because apparently, she thinks there is a right to put graffiti on other people’s property and public property.

Plaintiffs have successfully argued that the Ordinance is impermissibly vague. First, the Ordinance appears not to give fair notice. The Ordinance’s criminalization of property damage is overly vague given that it provides no boundaries on what constitutes ‘damage’ and how an ordinary citizen is to interpret the term. For example, it is wholly unclear whether one might ‘damage’ property in violation of the Ordinance by attaching a streamer to someone else’s bicycle or writing a note of ‘hello’ on a classmate’s notebook without express permission.

In sane jurisdictions courts recognize that you have no right to do any of those things. We call this a trespass. Seriously, ‘damage to property’ is not exactly a new concept in the law—it’s been talked about endlessly since the birth of the common law back in England.

Having found an apparent right to graffiti on public property and other people’s property, she then enjoins the entire ordinance, as written. She was as explicit on that point as one could get, writing that ‘[t]he Court GRANTS the Motion and PRELIMINARILY ENJOINS enforcement of SMC 12A.08.020 (as amended) for the duration of this action or until further order of the Court.’

Thus, under this ruling (and in the name of the First Amendment and avoiding vague laws), no one’s property rights (below $750) can be enforced.

After all, even if one assumes the ordinance has problems, completely leaving private property rights unenforced is a terrible solution. One of the factors the court was supposed to consider was ‘the public interest.’ How on earth is the public’s interest served by a district court declaring open season on everyone’s property—so long as the damage doesn’t exceed $750 (when apparently different laws would criminalize the conduct). The court, for instance, could stay its ruling for a short period of time giving the city time to write a new law. Even if the court felt that there was a right to graffiti, that didn’t mean it had to make all property damage suddenly legal. It could have just made the graffiti legal.

Now, we do have some sympathy with one argument the plaintiffs raised: The claim that the law was being enforced unevenly. For instance, there is an alleged policy that children drawing rainbows on the sidewalk are not going to be arrested, while apparently these plaintiffs were arrested after writing anti-police messages. If proven, that is obvious viewpoint discrimination. Viewpoint discrimination by the government is itself a violation of the First Amendment, but the solution to this problem is not to invalidate the ordinance: It is to stop the discrimination in enforcement.

(On the other hand, the police can discriminate based on age—so they can obviously respond differently to a child breaking the law versus an adult.)

Indeed, at another point, the court seemed to be upset that the city was not engaging in viewpoint discrimination, writing that:

On its face, the Ordinance sweeps so broadly that it criminalizes innocuous drawings (from a child’s drawing of a mermaid to pro-police messages written by the Seattle Police Foundation … that can hardly be said to constitute ‘visual blight’ and which would naturally wash away in the next rain storm.

All in all, it really an indefensible ruling—so much so that the judge is not actually defending it anymore. Yesterday, the court filed what is called a ‘minute order’ that suggested the judge realized she had f—ked up. The order states:

The Court has received a telephonic inquiry from the Parties as to whether the Court's Preliminary Injunction Order enjoins both SMC 12A.08.020(A)(1) and (A)(2) or just SMC 12A.08.020(A)(2). The Court orders the Parties to meet and confer to determine whether they agree the Preliminary Injunction should enjoin enforcement of only SMC 12A.08.020(A)(2) and to so notify the Court. If the Parties cannot agree, then the Court orders the Parties to file briefs of no more than 4 pages each outlining their positions on the scope of the injunction. The Court orders the Parties to file their response to this Minute Order by no later than Friday, 6/16/2023.

In other words, having expressly prohibited Seattle from enforcing its entire ordinance on the destruction of property and graffiti, she is now giving the parties a chance to agree that maybe the injunction should actually only apply to the graffiti. If they can’t agree, they will have a chance to litigate it, briefly. Reading further between the lines, we believe Judge Pechman realizes she f—ked up and now she is only going to only enjoin the stuff about graffiti—the second part of the ordinance. Even if the Plaintiff doesn’t agree to it, she will hold a hearing on the subject but come hell or high water, that is what she will do. She’s pretending to merely consider it, but we believe it is a foregone conclusion. We could be wrong, but that is how we read the situation.

Of course, the attorneys are smart enough to pretend that all of this is an accident:

The key passage says this: ‘both parties agree that the Preliminary Injunction enjoins only SMC 12A.08.020(A)(2).’

Notice the shift in language. The preliminary injunction enjoined the entire law. The judge asked the parties to decide ‘whether they agree the Preliminary Injunction should enjoin enforcement of only SMC 12A.08.020(A)(2),' the part dealing with graffiti. But suddenly the lawyers are pretending that, nah, she actually meant only the graffiti portion all along! It allows the judge to save face—and that is wise for any lawyer in their shoes—but we know it’s actually bull manure. She not only literally enjoined the entire statute, but she also claimed that the concept of property damage was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. In other words, she didn’t just say she was enjoining the whole ordinance, she argued in detail why all of it had to go. It is just not plausible to pretend now that this is like a typo or unclear writing. It was a mistake, but it wasn’t an accident.

In any case, the City Attorney put out this statement:

Our guess is that Judge Pechman knows she messed up. We wouldn’t be surprised if another judge went to her and said something to the effect of ‘are you out of your mind? You just legalized property destruction in Seattle! Someone could start hammering your car and the police wouldn’t be able to do anything about it until they thought the damage might cost $750.’ Therefore, we suspect that an order amending her original order will issue. The only interesting question is if the court will even acknowledge it made a mistake or pretend to agree with the parties that the order always applied only to graffiti.

Of course, that outcome is still terrible. If we understand things correctly, now a person can basically walk up to your car and start spray painting over it as the police watch, helpless. Furthermore, Washington state law, like most state laws, make it legal to use force to protect property, so we are likely to see private violence to stop such graffiti artists, which would lead to even more chaos. And then we wonder how the local police and prosecutors will react to that—will they respect clear statutory law that allows them to protect their property, or will they prosecute them for it? Hopefully, the City of Seattle either gets this dingbat decision overturned or passes a new ordinance to prohibit this kind of trespass. (And that is all assuming she does limit her ruling to the prohibition on graffiti.)

Needless to say, people were horrified by this:

Mr. Rantz replied:

Respectfully, if Mr. Rantz is saying she did this accidentally, we would disagree. She meant what she said when she said it. Any change now is because she changed her mind.

We never heard of her before today, so we are not sure what he is referring to.

The insurance of millions might end up being canceled. Can we get ‘dumb judge insurance?’

No one voted for this, except the judge.

Please note: This person is joking. The entire account is a humor account parodying liberal attitudes. We admit it can be hard to tell.

More like: ‘You’re on your own.’

One person even got philosophical:

Not a bad quote at a time like this.


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