Here’s what Pierce County intends to do about drug possession if Legislature doesn’t act

Amid uncertainty about how to address public drug use and controlled substance possession under state law, Pierce County officials say they’re making plans to step in if the state Legislature can’t agree on a bipartisan solution by July 1, when a legislative amendment is set to expire.

A special legislative session has been called for May 16 to find a solution for the state’s drug possession laws after lawmakers failed to find a compromise during the regular session. The session is scheduled for 30 days but can adjourn when the work is completed.

In the 2021 State v. Blake case, Washington Supreme Court justices ruled the state’s felony drug possession laws unconstitutional and removed any criminal penalties for drug possession. Under that decision, convictions were vacated and dismissed by an order from the court.

Area mayors and Pierce County Council members are trying to get ahead of the decision in the event the Legislature can’t come to an agreement by July 1.

In March Lakewood passed an ordinance banning the use and disposal of “dangerous drugs” in public and commercial spaces. Other cities, including University Place, Bonney Lake, Sumner, Auburn and Fife, have discussed or passed related ordinances.

Pierce County Executive Bruce Dammeier and Pierce County Council Chair Ryan Mello both said they believe the Legislature will come to an agreement before July 1. If not, rather than having a patchwork of drug possession ordinances passed by different cities within the county, a unified county-wide ordinance is being considered, they said.

On Monday the Pierce County Rules and Operations Committee voted to send a controlled substances ordinance that would make a violation a gross misdemeanor to the Public Safety Committee for further consideration next week.

What was the State vs. Blake decision?

On Feb. 25, 2021, the Washington Supreme Court struck down the state’s main drug possession law by finding in State v. Blake the crime of possessing a controlled substance unconstitutional because the law didn’t require proof the offender knowingly possessed the controlled substance.

In 2016, Shannon Blake was arrested in Spokane and convicted of simple drug possession. Blake argued a small baggie of methamphetamine police found in the pocket of her jeans wasn’t hers and that she had borrowed the jeans from a friend who bought them secondhand.

In response to the State v. Blake ruling, the Legislature passed ESB 5476, which added a knowledge requirement to the crime of possessing a controlled substance and reclassified the crime from a class C felony to a misdemeanor.

The legislative amendment prohibits law enforcement from arresting or citing someone for unlawful possession of a controlled substance until the offender has twice been diverted to voluntary social services.

In a letter sent to the Lakewood mayor and city council in March, assistant city attorney Samantha Johnson said practical difficulties of tracking how many times someone has been referred to substance abuse treatment has resulted in people using and possessing illegal drugs openly in public places and exposes the public to the harm associated with the use of illicit drugs.

Pierce County officials discuss action plan

Dammeier said the way the law is written now has resulted in a “kind of de facto legalization” of hard drugs and has “effectively [made] it unworkable for our law enforcement and for our prosecutors.”

“If [the Legislature doesn’t] have a deal, we are going to be faced with, our communities will be faced with, de facto legalization of hard drugs with no ability to hold people accountable,” he said.

The number of overdose deaths in Pierce County dwarfs the number of car accident fatalities and firearm fatalities, Dammeier said. Without accountability, it’s less likely people will seek addiction treatment and public drug use will continue, which puts the rest of the community at risk, he said.

“We want the ability to hold them accountable. We want it to be done in a workable fashion … and for it to be treatment-focused, for there to be resources for treatment,” Dammeier said. “This is not about locking people up. This is about trying to help save their lives, candidly.”

Mello said in the past few weeks he’s had many conversations about the Blake decision with local officials. In the event the Legislature doesn’t act, Pierce County is poised to pass something and sign it into law to become effective July 1, he said.

“We do have a public safety problem here. And we do need to highly encourage individuals to get to treatment and that would be, that’s the primary objective that the County Council has,” Mello said. “Folks are not going to get well sitting in a jail. That’s just not how people get well. An addiction like this is a disease and it’s a public health crisis, and we need to treat it like a public health issue, which means moving people to treatment and having the support they need for drug treatment.”

Mello said he’s frustrated this issue is “falling in the lap of local government” when the state should be the authority setting the standard for crimes and punishment.

“I think we need to think very seriously. I’m not gonna sit here and say willynilly, I know for sure it should be a gross misdemeanor or misdemeanor. This is not a body of law that I’ve been needing to really focus on,” Mello said. “I want to use the time we have over the next three or so weeks … to really hear from treatment providers, others, about what it really takes to encourage people to get into and stay in treatment. I’m looking for evidence-based solutions and not just looking like we’re solving a problem.”