The SPD will decide whose public art is or is not a crime.

by Carolyn Bick

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Last June, a U.S. District Court judge issued an injunction barring the City of Seattle from enforcing its anti-graffiti ordinance. The case came before the courts as part of an ongoing suit involving protests against police violence in early 2021. The case specifically regards the messages written in chalk and charcoal on the East Precinct during the protests. 

In her decision, Judge Marsha Pechman stated that the ordinance as written was too broad to avoid trampling on First and 14th Amendment rights and specifically “impermissibly delegates enforcement of the Ordinance to the SPD without any guidance or boundaries.”

“This is evident in the fact that SPD has apparent, unfettered discretion to enforce the Ordinance or not. While there is allegedly a policy not to arrest children drawing rainbows on the sidewalk, the Ordinance itself allows the police to do just that and to arrest those who might scribe something that irks an individual officer,” Pechman wrote.

But Seattle City Attorney Ann Davison appealed Pechman’s decision to the U.S. Court of Appeals for the Ninth Circuit last July — and, as of Feb. 2, Seattle police have once again been given the green light to resume arresting people for anything they consider to violate the ordinance.

Illegal or Legal Public Art? What Happens When Cops Get to Decide

Of the several artists the Emerald reached out to, only public artist Angelina Villalobos responded — perhaps an indicator of the current mood of the public art scene in the Seattle area. Another person the Emerald spoke with for this article said many public artists were anxious about speaking with a journalist, given this apparent increased crackdown and scrutiny of public artwork.

Villalobos’ work is a decade-long, multicolored trail of solo works and collaborative pieces in the spaces she has long called her community. Villalobos herself was caught for creating graffiti when she was 14 or 15 years old. But instead of being shunted through the court system, she was enrolled in Panels for Progress, a citywide public arts program to foster creative youth who had been arrested for graffiti. The program is now called Urban ArtWorks, and Villalobos went on to serve on the board for a number of years.

Almost three decades later, the issue of graffiti in the City of Seattle is still as complex as it ever was — perhaps even more so after the Black Lives Matter protests in 2020 — but Villalobos says simply punishing people and erasing graffiti won’t solve the problem. This is especially true if the graffiti targeted carries a political message.

“The graffiti that they’re talking about [in the case] is specifically in conjunction with the Black Lives Matter movement. So of course they’re gonna want to police that, because they don’t want that going up in the city, because it’s already a hot topic,” Villalobos said. “I think it’s retaliation towards [the Capitol Hill Occupied Protest (CHOP)], because a lot of graffiti was going up then. And some of it was political.” Villalobos says the people who are most likely to respond negatively to that kind of graffiti are not just the police and institutions that graffiti is calling out.

“It’s like people that have that thought process of, ‘You guys shouldn’t be talking about this’ — like, what is appropriate for discussion? I almost feel like it’s the kind of people that don’t want to talk about … critical race theory, like that kind of group,” Villalobos said. “I think the most common misconception people think of this is that it’s going to take care of the graffiti that they’re seeing on the freeways and on the buildings, and other kinds of graffiti that you typically see that Seattle loves to spend lots of money on to clean up.”

In Punk Rock Flea Market founder — and former street artist in his New York City youth — Joshua Okrent’s experience, and from what he’s heard from the many street artists with whom he’s worked, such enforcement is cyclical. He says periods of strict enforcement might be followed by periods of less stringency. But Okrent says enforcing such laws is, baldly, “Shockingly stupid.”

“It’s an art form that, by necessity, exists somewhat outside the law. And that’s part of the point. … It’s not an art form that’s taught in schools. And in a lot of ways, it’s a reaction to the fact that people don’t have access to art in their regular lives,” Okrent said. “And so they have to develop them on their own.”

Seattle City Attorney’s Office (SCAO) Communications Manager Tim Robinson told the Emerald in an early February email that an arrest does not necessarily mean that the SCAO will move forward with prosecution. Such determinations are made on a case-by-case basis.

But this does not prevent the police from arresting people for anything individual officers deem to violate the ordinance, and therefore be an act of criminality. The act of arrest alone has been shown to be traumatizing and leave lasting damage. As evidenced by George Floyd’s arrest and murder during said arrest — the event that sparked the 2020 protests against police brutality, to which this graffiti case is directly linked — arrest can also result in death.

“There’s a lack of empathy that is seriously within our government and in our government agencies that allows programming to … not treat people with the compassion they deserve as humans, as fellow people, especially youth,” Villalobos said. “And that’s such a broad, ‘Kumbaya’ kind of answer. But it’s one of … the most overlooked, I feel.”

The Emerald also attempted to speak with several different organizations that have public art programs, including public art programs for youth, in an attempt to better understand the potential fallout of the City’s ordinance enforcement. All declined to speak, save for Urban ArtWorks, whose executive director, Amanda Hashagen, shared a written statement.

“Urban ArtWorks does not typically incorporate graffiti-style art into its murals, nor do we speak on behalf of the graffiti community. While we do not condone hate speech or the destruction of private or historic property, we also recognize the potential consequences of overly punitive measures that may increase the number of young people entering the court system for nonviolent crimes. We advocate for solutions that are holistic and engage the community as we believe this approach is more conducive to long-term positive outcomes,” Hashagen wrote.

“We suggest looking at how other cities such as Bogata, Barcelona, and Lisbon, have successfully coexisted with graffiti in their communities, including alternatives such as the creation of sanctioned spaces for graffiti artists to freely express themselves,” she continued.

“We have seen that blanket prohibitions on all graffiti art often result in a cycle of tags and buffing that expends significant city time and resources. Instead, we advocate for mutual respect and collaboration to identify solutions that are equitable and sustainable for our community.”

The City of Seattle’s Office of Arts & Culture (SOAC) has a public artwork program that includes public murals, but its incorporation of public art into everyday spaces does not reach the level of any of the cities Hashagen referenced in her statement. Okrent also noted several of these cities in his interview, and said that, even aside from allowing for artistic expression, the City of Seattle is missing out on a big revenue stream and a way to make the city and its myriad empty storefronts live again.

Villalobos also notes a lack of beauty in the city that only encouraged people to graffiti walls otherwise covered in nothing more than the ugliest paint — ironically, more often than not, an attempt by the City of Seattle to cover up graffiti. She says if there was already beauty there, people would be less likely to graffiti over it. 

Okrent also listed off a number of cities both in and out of the United States that incorporate graffiti art into their tourism attractions, as well as cities that deliberately keep what are known as “free walls” for anyone to use. Readers can explore free wall locations here.

Police Will Know It When They See It

The cities both Hashagen and Okrent referenced feature a range of graffiti art, from murals to tags. So how does the City of Seattle determine the difference between art and something that’s against the law? And what does the public gain or lose when the definition is set and defined by governments and legal entities?

When asked how the office distinguishes between art and crime, Robinson said the SCAO does not make the initial determination, and “intakes referrals from [the Seattle Police Department (SPD)].” 

“Any graffiti case that would come to this office would be referred by SPD personnel, who would … have made the determination that the circumstances warranted referring to our Offices based on SPD policies and guidelines,” Robinson wrote. “When arrests are referred to CAO, they are reviewed by this office in the context of City ordinance and a determination is made whether or not to file the case with Seattle Municipal Court.”

This appears to once again demonstrate Judge Marsha Pechman’s concerns about giving police unfettered latitude to enforce the ordinance.

The Emerald asked again how the office distinguishes between art and something that would be considered a criminal act. Robinson wrote, “Seattle City Ordinance doesn’t draw a distinction between art and graffiti. I can’t speak for Seattle Police on what prompted a referral to CAO. The discussion of ‘art or graffiti’ is broad, while the decision (of SPD) to refer a case to CAO is based on specific circumstances and the decision (of CAO) to file a case is based on the specifics of a case review.”

Robinson also included a table of statistics related to arrests and prosecutions. The data Robinson sent over shows that the SCAO brought to court a majority of the graffiti-focused referrals SPD made, and noted that cases referred to the SCAO for property destruction, not just graffiti, “can include graffiti.”

Robinson said the office could not give data regarding the number of graffiti cases that were successfully prosecuted.

When asked how Seattle police distinguish between art and crime, SPD media gave a non-answer: “I refer you back to the SMC for the definition,” and linked the Emerald back to the municipal code.

SOAC Communications Manager Ronald “Otts” Bolisay told the Emerald in a late February email that SOAC views graffiti as “a legitimate form of artistic expression with a long history. It has evolved over time and is often connected to the rise of hip-hop culture. It’s gone from something done in the shadows to being used to activate public spaces and engage youth. People tend to use the term ‘graffiti’ when talking about defacement of public and private property, but we need to differentiate between authorized artwork and unauthorized marks on a building. Unauthorized marking on buildings, such as tagging, isn’t about art but claiming territory.”

But this is the whole point of graffiti, Okrent countered.

“They want to put their name up. They want to be remembered,” he said. “It’s the same impulse that makes you want to have a tombstone after you die or name a building after yourself. It’s the same thing. You want to be, you want to be seen. You want to be known. You want to have an impact. You write your name.”

Later in the same email, Bolisay wrote that “Seattle is a city that embraces art forms of all kinds and supports avenues for our creatives to add to the vibrancy and character of our neighborhoods. The issue is not about defining a form of artistic expression, it is about defining the conditions under which such expression can be created and whether public and private property can legitimately be used as a canvas without the consent of property owners.”

In Los Angeles, California, police have been making ongoing arrests following a crackdown on graffiti artists creating what would appear — in the SOAC’s estimation — to be tags on an abandoned and unused skyscraper.

In a follow-up email, the Emerald asked both the Seattle Office of Arts & Culture and the Seattle City Attorney’s Office about the situation in Los Angeles and what would transpire should this occur in Seattle.

Bolisay said, “Los Angeles is its own city with its own artists, laws, and city dynamics. It’s not our jurisdiction.”

When the Emerald clarified that it meant how the office would view the situation, should it occur in Seattle, Bolisay said, “We prefer not to speculate and think it’s more sensible to respond if and when something like that happens in Seattle.”

Robinson echoed Bolisay, saying that “providing input to this request is outside the scope of the communications role of this office, and outside of the scope of the role of attorneys at the Seattle City Attorney’s Office. This response is not based on the merits of the question or the content of the linked story (which I haven’t clicked on or read). It is about scope of duties.”

Villalobos says approaching graffiti the way the City of Seattle is currently plays into a detrimental stereotype of poverty — that graffiti is bad because it comes from artists who don’t live in “good” neighborhoods and can’t afford art classes. But graffiti stems from kids teaching each other.

“When you see a bunch of kids with their sagging pants, a lot of people want to clutch their purse, not thinking, ‘Oh, this might be a style. It doesn’t mean that they’re gangsters.’ … It’s an art form. It’s a tool. It’s a way you get messages out into the world. And I truly feel the way that we see graffiti now — the letter styles and the characters — that was all birthed out of youth. That was all young people doing that with each other. It’s one of the only things that young people actively teach each other.”

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📸 Featured Image: A scene at CHOP in 2020. (Photo: Susan Fried)

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