Below is my column in the Hill on the controversy over the creation of the Capitol Hill Autonomous Zone, better known as Chaz. Well, it was Chaz. “The autonomous zone formerly known as CHAZ” is now the Capitol Hill Occupied Protest (CHOP). As W.C. Fields said “It ain’t what they call you, it’s what you answer to.” The problem is that Chief Best said no one is answering their calls. Chief Carmen Best stated today that the name had apparently changed but that they have yet to identify people who will speak for CHAZ or CHOP. She also noted that there appears to be widely different demands. That presents a serious barrier to a resolution.
RIP CHAZ. All Hail CHOP, but the question of leadership remains. Here is the column:
In Seattle, the Capitol Hill Autonomous Zone, better known as Chaz, seeks to create a communal experiment in governing free of cops. With raucous meetings in the Seattle People Department, formerly known as the Seattle Police Department in the East Precinct, Chaz is a work in progress covered in graffiti. Beyond its barricaded border, however, Chaz is already defining governance. In Seattle, Mayor Jenny Durkan is dismissing the concept for leadership. In Washington, President Trump is claiming authority he does not have to retake the district. It is a tale of two very different cities, with one official abdicating her authority and the other exaggerating his.
Officials struggled to ignore that people have taken control of one police precinct and six blocks of the largest city in Washington state. Governor Jay Inslee was ridiculed for denying he was aware of the takeover, which has been the focus of every major network and newspaper for days now. As Inslee struggled with denial, Durkan swiftly moved to acceptance.
Despite images of men walking around Chaz with weapons and extensive property damage, Durkan shrugged off suggestions that she might have a responsibility to regain control of the area. In an interview, she described the takeover as nothing more than a block party. Pressed about when she may act, Durkan said she may simply abandon the area and allow for what she called a summer of love. Nonetheless, both Durkan and Seattle Police Chief Carmen Best denied giving the order to abandon the precinct.
In a way, that is the greatest achievement of some of the anarchist and socialist groups in the movement: Government seems to have melted away, not just inside CHAZ but in Seattle. Indeed, they are witnessing what Frederick Engels once envisioned: “The state is not ‘abolished’, it withers away.”
The support from Durkan for their “desire to build a better world” ignores that she was elected to govern the entire city of Seattle. Withdrawing the police and giving in to mob control of even one small area is antithetical to the most basic concepts of governance. Indeed, unwilling citizens of Chaz could sue over that decision to surrender control of their precinct. The city could also be sued for damages caused by abandonment.
The irony is that Durkan and the city can be protected by the very thing the denizens of Chaz, and Democratic leaders, have called to eliminate, which is immunity. Police have won lawsuits over the failure to prevent injuries or respond to calls as the discretionary decisions left for a city. Some of those cases turned on the “public duty doctrine” that shields governments from liability when it refuses to act to enforce laws.
In the 19th century, the Supreme Court rejected a lawsuit against a sheriff who allowed a gang of working men to basically hold a man hostage over unpaid money. The Supreme Court ruled that the sheriff owed his duty to the public rather than to individual citizens. Durkan can rely on the same antebellum precedent to excuse her own refusal to act with Chaz.
As Durkan abandons her duties, Trump is threatening to exceed his own. He tweeted that the “anarchist takeover” in Seattle is a case of domestic terrorism. Whatever Chaz is, it is certainly not terrorism. The mayhem is mostly peaceful, if also destructive, and the habit of Trump of calling his critics “traitors” is unnerving. But he went further, telling Seattle officials to take back the city or he would do it himself. This assertion of power is as radically overstated as that of Durkan is radically understated.
Under our federalist system, police powers mostly reside with the states. The Constitution gives Congress authority to overcome disturbances. It can “provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions.” Yet the disorder in Seattle is not an insurrection or a challenge to federal authority. It is rather a local protest that has now been allowed to continue by city officials.
With the Insurrection Act, Congress authorized presidents to use troops in response to rioting that “opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws.” The president may intervene if requested by a state legislature to suppress an insurrection. In the case of Chaz, there is neither a rebellion nor a request. The Insurrection Act also allows for unilateral action for cases of unlawful obstruction, assemblies, or rebellion against the United States.
However, there is no challenge to federal authority when city officials have allowed the local protest to continue. Furthermore, the law grants federal authority on conditions that “make it impracticable to enforce the laws” in any state with “the ordinary course of judicial proceedings.” The reason is that, as long as the courts are operating, the rule of law can be enforced, and Chaz does not prevent the courts in Seattle from meeting.
While Trump has said he will seek “force with compassion” in Chaz, that would still exceed any design by the Constitution. As with his erroneous claims that he could order the opening of states in the pandemic, Trump is certainly exceeding his power as the president. By comparison, Chaz has been functioning as was intended by not functioning at all.
Activists demand abolition of the police, the criminal justice system, the gentrification of cities, and a growing line of other actions, notably calls for the resignation of Durkan and the jailing of Trump. It is the talk of the town where citizens are pushing for the free delivery of everything from lotion to cigarettes and basking in the relative clarity of anarchy.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.