Seizure Disorder

Seattle's "drug nuisance abatement" program is a menace to law-abiding property owners.

Michelle Malkin from the March 1999 issue

(Page 2 of 2)

Ernest Heller, a senior administrative law judge who presided over a state Liquor Control Board hearing to determine whether the McCoys' liquor license should be revoked, concluded that he could not make findings based on the hearsay statements of confidential informants involved in the alleged drug buys. To do so, Heller wrote, "would deny the licensee an opportunity for confrontation"--a fundamental due process concern voiced six years earlier by Westerton Currie's lawyer.

Heller found the testimony of a key confidential informant known as "Bright Eyes" particularly disturbing. The anonymous woman participated in the Seattle Police Department's sting operation on six different occasions during 1997. She testified that she had obtained drugs from a customer, who claimed in turn that she had received them from a waitress at Oscar's named Colleen. But the only waitress with that name employed by the McCoys was neither on duty nor on the premises on the day Bright Eyes claimed to have bought drugs at Oscar's. Heller dismissed her testimony as "not credible" and said that "taken as whole, she was not presented as a credible person." Nor a particularly competent one. At one point, when asked whether she had an independent recollection of an alleged drug buy, Bright Eyes replied: "I don't have a photostatic record of memory, sir."

"It is troubling," Heller concluded, "that hundreds of thousands of dollars were paid out to drug dealers leading to no enforcement activity." Nevertheless, the Liquor Control Board, goaded by the city of Seattle to revoke Oscar's license, quickly threw out Heller's strongly worded ruling in favor of the McCoys and instead took Bright Eyes at her word.

Another targeted business was Uncle John's Tavern in the Rainier Valley neighborhood of Seattle. Owner John Clayton is a 40-year resident of Seattle, an Army veteran, and a retired employee of the U.S. Public Health Service. He had a spotless record of compliance with liquor laws until the city of Seattle filed an objection to his license renewal. He had never been charged with a drug violation and had cooperated with police to fight crime. Despite a petition of support signed by more than 100 neighbors and patrons of his tavern, the city launched a drug abatement action against Clayton in 1996.

King County Superior Court Judge Joseph Wesley, who also presided over the McCoys' abatement hearing, acknowledged the difficulty of balancing the "community's interest in combating drug traffic and an individual's right to operate his business free of government interference." The city decided to defer its case because alleged drug activity had ceased at Uncle John's. (Curiously, the cessation of alleged drug activity at Oscar's II has not resulted in a similar decision.) But by the time the city finally relented, Uncle John's had been strangled slowly to death. Clayton was forced to sell the business to defray his legal costs.

A courtroom exchange between Judge Wesley and Clayton's lawyer, Howard Pruzan, highlights the unfair expectations created by the abatement law:

Pruzan: "Honest to goodness, we want to help eradicate drug activity. Seriously, what can Mr. Clayton do? Supposing that he believes that someone in his parking lot is doing something suspicious. He certainly cannot make a citizen's arrest. He can call the police department. I am told by his security person that they have done that and that the police have not responded for three or four hours at a minimum. What in the world is he to do about this, Your Honor?"

Wesley: "It may well be that one can't run that business in that location. Maybe that's the answer....Pig farms make a good living for people, but in our community we don't let there be a pig farm."

Pig farms may be illegal in Seattle, but licensed, taxpaying, family-owned taverns such as Uncle John's and Oscar's II are not. These businesses have employed dozens of people, served hundreds of loyal customers, contributed to cultural diversity, generated property tax revenue, put kids through college, and provided retirement nest eggs. Clayton's entire savings were invested in his tavern. Now the 64-year-old former businessman works as a janitor at the Kingdome to make ends meet.

Attorney Richard Shepard of the Tacoma-based Northwest Legal Foundation, a property rights advocacy group, wonders "if the Seattle Parks Department was unable to control drug trafficking in Freeway Park, whether the city would sue the Parks Department for abatement." No such cases against publicly owned drug hotspots such as Freeway Park, Cowen Park, the Kingdome, or the King County Courthouse have been filed by Sidran to date.

Etta Mae Franklin, Rose Ervin, Mae Fosha, Preston Scott Sr., Westerton Currie, Dean Falls, Oscar McCoy, and John Clayton have two things in common: They were all targets of drug abatement by City Attorney Mark Sidran, and they all happen to be black. Sidran emphasizes that his aggressive abatement campaign "is not about race" but about reducing crime. Yet the Seattle Police Department reported in August that the number of gang-related drug arrests in the city skyrocketed from 168 in 1992 to 397 in 1997.

Sidran dismisses community concerns about racism as "too fantastic." Yet of the 28 cases I was able to review through public records requests or through the King County Courthouse, all but five involved black homeowners or black small-business owners. Only one out of the 28 involved a white property owner. In other words, Sidran lodged 96 percent of these drug abatement cases against minorities in a city where minorities make up roughly 25 percent of the population.

Moreover, of the cases I reviewed and mapped out, nearly 90 percent were located in the Central District and Rainier Valley areas. The city might reasonably argue that drug abatement cases are concentrated in these neighborhoods, where most of Seattle's black residents live, because that is where most drug crimes occur. The data that would be needed to back up that explanation--drug arrest figures broken down by neighborhood or precinct--are not available from the Seattle Police Department.

But a comparison of other law enforcement statistics for 1997 shows that black neighborhoods do not account for a disproportionate share of the city's other major crimes. In fact, the predominantly white West Precinct reported twice as many thefts as the predominantly black East Precinct and substantially more robberies, assaults, and auto thefts. All are crimes associated with drug activity. Given these data, it's reasonable to expect a far more even distribution of drug abatements between the two precincts than the pattern that seems to be emerging. Questioned on this point, the Seattle Police Department does not have an explanation for the discrepancy.

Does Seattle engage in deliberate racial discrimination, or is something more subtle at work? Some of the minority abatement targets are in areas slated for urban redevelopment. Critics also note that property owners in Seattle's black, working-class neighborhoods have fewer resources with which to contest abatement actions. Or perhaps it's a case of looking for the keys next to the lamppost: A his-tory of conspicuous drug activity invites heightened scrutiny and enforcement in certain neighborhoods, even though the drug problem has spread beyond those areas.

Adding to the racial tension are animal analogies like the "pig farm" comparison used by Judge Wesley. In a recent deposition involving the closure of another nightclub that catered to black patrons, Sidran said: "When you're confronting a recurring, repetitive, long-standing problem, at some point...you begin to think about draining the swamp instead of constantly chasing the alligators down one by one." He repeated that reasoning in the city's appeals brief in the Oscar's II case, complaining that the continued operation of the McCoys' business would force "the police to pursue the problem one suspect at a time."

Lindsay Thompson, a Seattle attorney who handled 300 drug felony cases as a deputy prosecutor for Cowlitz County, is troubled by the city's use of the drug abatement statute against law-abiding people like the McCoys: "It sends an oppressive message to the community when you work with citizens one day and then blame them for crime they can't possibly control on their own. That should make anybody rise up in outrage." Thompson--who lives in Seattle's Central District, just a few blocks from Oscar's II--adds, "Sidran's swamp analogy is faulty. The last thing we as servants in law enforcement should be doing is destroying the village to save it."

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