Law enforcement remains in the lead to re-criminalize drug use and possession / Noisy Waters Northwest

April 20, 2023 Dena Jensen

April 20, 2023  Dena Jensen

On April 10, 2023, five out of seven members of the Bellingham City Council voted to approve an ordinance making it illegal to publicly use controlled substances in their city. Council Members took the action after amending the original ordinance which had been presented by Mayor Seth Fleetwood about a month earlier. Enforcement will guarantee that some people living outside will be exposed to increased scrutiny and pursuit by the Bellingham Police Department.

During this timing, a community member had requested public records related to information on drug use in Bellingham. Some of the material in responsive records offers additional context to police involvement in the pursuit such criminalization.

At the Council’s Public Health, Safety, and Justice Committee meeting earlier that day, Bellingham Police Chief Rebecca Mertzig told Council Members that the first step in enforcing the proposed ordinance would be warning persons found to be using drugs in public that they were committing a crime. 

Mertzig was on hand at the related Council Committee meetings – starting March 13, 2023 – which lead up to the Council approval of the new law. At all of them she provided responses to Council Member concerns over police enforcement of such an ordinance and services police could facilitate to help those struggling with addiction and other crises who could otherwise be facing criminal charges. 

At that initial committee meeting on March, 13, Council Members had been reluctant to proceed with criminalizing public drug use without evidence of ample services to treat harmful drug use and addiction. But that changed for many of them suddenly, only two weeks after the first committee meeting and well before additional services had been robustly explored and provided where needed. 

At the March 27, 2023 Committee of the Whole meeting, Council Members expressed their own views about this potential new law which could predominately target people without shelter, asking questions about existing legal codes and some available diversion services. 

Those questions were answered principally through the lens of law and justice officials, Chief Mertzig and the City’s senior assistant prosecuting attorney, Ryan Anderson. The two hypothesized ways they might carry out enforcement of an ordinance without additional services in place to address substance use and mental health challenges. The action of further exploring needed services was moved by Council vote to the Public Health, Safety, and Justice Committee, 

About an hour and 20 minutes into the March 27 meeting, and related to this discussion, Council Member Hannah Stone spoke about the pressure officials were feeling from a variety of community interests to take the right kind of action, after which she remarked: 

“And I’m hopeful that we’re all on the same page in wanting to – right? – get this right and to do the best on the part of our community. But what’s resonating with me are the statistics that Chief Mertzig shared – right? – the number of overdoses. I recall that she said 76 last year and it was 87 to date [in 2023] when we met two weeks ago, and now it’s 107 – right? –  that’s about 10 a week.” 

It was at that point, Council Member Stone went on to announce that she was ready to potentially move forward with the ordinance. And it turned out that first and second readings of the ordinance were approved that day by a vote of 5-2. The Council would go on to officially approve the ordinance two weeks later with the same vote count.

Prior to approving the ordinance, at the April 10 Public Health, Safety, and Justice Committee meeting, there was a good deal of discussion about related State level legislation. A number of the City Council members said they had been in contact with local State representatives who were said to be expecting a bill to pass that would make knowing drug possession – and potentially public drug use – a misdemeanor of some type.

Back on February 16, 2023, Crosscut had published an article titled, “Push to decriminalize fades as WA Senate considers new drug law,” which traced a course of bills crafted to ensure continuing decriminalization of drug possession slipping through the fingers of legislators who had previously been eager to push forward services instead. Senate Bill 5536, with an amended version approved by the Washington State House on April 11, 2023 that prohibits both knowing drug possession and public drug use, does provide measures to support and enhance diversion and recovery services, but also, as Bellingham’s ordinance does, provides for enforcement of the law far before ample, diverse, and effective recovery services are available.

On April 10, Chief Mertzig informed Council Members she had spoken to someone in Marysville, WA about their city’s law against public drug use which had been passed about three and a half months earlier. Mertzig said she was informed that there had been approximately 70 arrests related to the law so far, and that things had improved in the community. She offered no specific details about any improvements.

Council Members did not ask any questions about this information during the meeting, even though the number of arrests posed an alarming contrast to Mertzig’s repeated assurances that BPD arrests would only be pursued as a last resort, and that warnings or cite and release actions would occur in the vast majority of cases.

As it happens, the overdose statistics that Council Member Stone said Chief Mertzig had shared – which helped prompt Stone’s expedited support of the Mayor’s ordinance – apparently resulted from Mertzig sending email inquiries to the deputy director of What-COMM 911 Dispatch for those numbers.

The Bellingham Police Chief’s first request for overdose figures appears to have occurred on February 6, 2023, about 10 days before Crosscut published their article about the fading push to decriminalize drugs in the State legislature. In that email, Mertzig had asked, “Is there a quick/easy way to find out how many overdose calls for service we entered for 2022 and how many Year to date.  That might be impactful when I speak to law makers about the drug legislation tomorrow.”

After receiving the statistics from What-COMM, Chief Mertzig had responded:

“This is an important stat to keep track of and I would like to continue to provide the numbers to our legislators, Mayor’s Office, and City Council. I have noticed a lot more overdose calls in the daily report I receive and just listening to the radio in my office. I have a feeling we are going to crush any records this year at the pace we are on. It is great motivation to keep ‘decriminalization’ out of the mouth of any decision makers.”

A month and a half later, Mertzig had sent an additional email to the What-COMM deputy director on the morning prior to the meeting where Council Member Stone referenced the overdose figures, and had proposed moving forward with the ordinance. In that email the Chief asked, “Could I get the YTD Overdose count this morning. The ordinance is back on the agenda this afternoon….”

The War on Drugs and at-risk community members continues

Relevant to a number of issues related to Bellingham’s drug use ordinance and our local law enforcement’s proactive measures to be able to take actions against those with mental and behavioral health struggles is a July 2021 commentary that sheriff and police officials signed onto. It’s valuable to revisit this in light of these recent developments.

The head law enforcement officials for Whatcom County and the cities within its boundaries signed onto “An editorial from your local law enforcement officials.” The editorial, with the main title of “Police Reform in Washington State,” ran in some local publications. It was published about two months after Governor Jay Inslee had signed into law a variety of police reform legislation aimed at improving police accountability following the murder of George Floyd by Minneapolis Police officer Derek Chauvin in May of 2020. 

The Point Roberts All Point Bulletin gave Whatcom County Sheriff Bill Elfo the byline in their published copy and listed at the bottom all of the city police chiefs who had signed on to the letter.  The Washington Association of Sheriffs & Police Chiefs (WASPC) has a copy of the editorial posted on their website. 

The commentary defended local law enforcement practices regarding Terry stops, use of force, vehicular pursuit, and drug possession. It maintained the new laws would compromise officers’ safety and hinder their efforts to provide safety to the community. 

In discussing police practices related to behavioral health and drug use issues, Sheriff Elfo had written:

“While law enforcement generally supports behavioral health intervention, there are not sufficient behavioral health professionals available or willing to take on risks associated with people who have a propensity toward violence without law enforcement protection.

“While law enforcement prefers referring drug users to treatment rather than the criminal justice system, legislation re-classified all drug possession, regardless of quantity, from felonies to simple misdemeanors, and directed that for an offender’s first two offenses, they not be referred to prosecution. Sufficient substance use disorder treatment resources are not available to effectuate this and there will be little law enforcement can effectively do about neighborhood and public drug activity.”

This statement makes it obvious that law enforcement officials – who, two years down the line, are continuing to push the criminalization of drug use and promote other actions that disproportionately, negatively impact and incarcerate marginalized community members and those in crisis – have a clear understanding that there are deficiencies in the services needed to properly care for them.

Instead of actively and visibly taking the lead to promote recovery services to officials and throughout the community that in many cases would not need to include law enforcement involvement, our local law enforcement officials have been shown to be proponents of laws that will, absent those services, end up punishing those who need help.