DRUG LAW RULED UNCONSTITUTIONAL

Case stemmed from Seattle's closure of Oscar's II

The Seattle city law that shuts down businesses in which drugs are dealt on
the premises suffered a serious blow yesterday from the Washington Court of
Appeals.

The case stemmed from the city's use of the law to try to close Oscar's II,
a popular Central Area nightclub. The action drew protests from African
Americans in the community, who claimed they were unfairly targeted by the
drug nuisance abatement statute.

The law, passed in 1988, was initially aimed at rooting crack houses and
other drug dens out of neighborhoods.

It allows the state to confiscate land for a year where drug dealing occurs.

City Attorney Mark Sidran has used the law as part of his ongoing campaign
to curb drug use and violence in nightclubs.

The three-judge appeals court panel used strong words in a unanimous ruling
that held that the law as it applied to Oscar's was unconstitutional.

"It certainly cannot be presumed that the owners of (nightclub and other
businesses) . . . can guarantee that they will detect every incident of
illegal drug activity, let alone prevent it," the judges wrote.

"To believe otherwise would require a presumption that an owner could see
through clothes, tables, walls and doors, as well as to read minds."

The city's closure of Oscar's II was "shocking abuse of the statute by the
Seattle Police Department and Seattle City Attorney," said David Osgood, the
attorney for the owners of the club, Oscar and Barbara McCoy.

"What we learned today is that those who abuse the law can have it taken
away from them," Osgood said. "This decision severely limits the scope of
this law. If it's not dead, it's severely wounded."

Sidran, in a prepared statement, chided the appeals court's "assessment of
the facts."

"What the owners knew about drug trafficking and what they did to try and
stop it has always been at the heart of the matter," Sidran said. "Different
judges have come to different conclusions about the facts in this context.

"The good news for this neighborhood is that by all accounts drug
trafficking is no longer a problem at Oscar's."

Sidran said the court stopped short of declaring the law itself
unconstitutional.

In an effort to identify and rid their club of drug dealers, the McCoys had
worked closely with police for years prior to November 1997, when the city
attempted to shut down the club, the appeals court found. Oscar's II has
stayed open pending resolution of the court case.

The McCoys implemented many of the Police Department's 15 "suggested
actions" aimed at thwarting drug activity, according to the Court of Appeals
decision.

Without the owners' knowledge, undercover informants working for the police
patronized the club and bought cocaine between 1995 and 1997.

No one was arrested in connection with those sales, but the city began
compiling a case against the club as a drug-dealing magnet and notified the
McCoys that they had a legal responsibility to stop the problem.

A King County Superior Court judge approved the city's drug abatement order
in November 1998, saying that "the McCoys have not been able to abate the
drug nuisance at Oscar's in the past."

Court of Appeals judges Marlin Appelwick, Susan Agid and Anne Ellington
starkly disagreed, concluding that the law, as applied in this case, was an
unconstitutional taking of the McCoy's property and a violation of their due
process rights.

"The record does not support a finding that the McCoys acquiesced in any
illegal drug activity or turned a blind eye to it," the judges wrote.

The Washington branch of the American Civil Liberties Union expressed
pleasure at the decision. The ACLU had filed a friend of the court brief
siding with those opposed to the ordinance.

"Oscar (McCoy) was not dealing drugs. Someone on his property was dealing
drugs," said Doug Honig, an ACLU spokesman.

"He was cooperating with police. We thought it was unfair that he should
lose his business when he was cooperating with police."

In 1998, nearly 200 people marched along East Madison Street, where Oscar's
II is located, protesting the drug abatement law.

Some said it was unfairly applied to businesses that served African
Americans and other minorities.

At the time, Sidran replied that the law was a worthwhile tool to fight
drugs and race was not a factor in how it is applied.