U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:14-cv-00794-MJP

Mahoney et al v. Holder et al Assigned to: Judge Marsha J. Pechman Cause: 42:1983 Civil Rights Act

Date Filed: 05/28/2014 Date Terminated: 10/20/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Officer Robert Mahoney

represented by Athan E Tramountanas SHORT CRESSMAN & BURGESS 999 3RD AVE STE 3000 SEATTLE, WA 98104-4088 206-682-3333 Email: athant@scblaw.com ATTORNEY TO BE NOTICED

Plaintiff
Officer Sjon C Stevens E-Filing/Service NORTH PRECINCT #6180 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Cliff Borjeson

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Christopher Myers

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff

Officer Bridget Hillan
Plaintiff Officer Lance Basney
Plaintiff Officer Salvatore DiTusa
Plaintiff Officer Clarke D Chase
Plaintiff Officer Joseph Stankovich
Plaintiff Officer Weldon C Boyland
Plaintiff Officer John L Farrar
Plaintiff Officer Dale W Umpleby
Plaintiff Officer Richard A McAuliffe

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer George Baseley
Plaintiff Officer Leon J Towne TERMINATED: 09/19/2014
Plaintiff Officer David M Harrington
Plaintiff Officer Henry Feldman
Plaintiff Officer Terry Whalen
Plaintiff Officer Gilles Montaron
Plaintiff Officer Robert Stevenson #5859 E-Service Only 10049 COLLEGE WAY N

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Leon J Towne #6697 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Terry Whalen #6879 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

NORTH PRECINCT SEATTLE, WA 98133 206-684-0850 Plaintiff Officer Joshua Goodwin
Plaintiff Officer Ryan Kannard
Plaintiff Officer Nathan Lemberg
Plaintiff Officer Ryan Beck TERMINATED: 08/27/2014
Plaintiff Officer Jeff Mitchell
Plaintiff Officer Robert B Brown
Plaintiff Officer Ernest T Hall

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Ryan Beck #6898 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Robert Burk
Plaintiff Officer Adam Beatty
Plaintiff Officer Tomas Trykar
Plaintiff Officer Brien Escalante
Plaintiff Officer Bryan Kennedy TERMINATED: 08/27/2014
Plaintiff Officer Karen G Pio
Plaintiff Officer Oscar Gardea TERMINATED: 08/27/2014

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Bryan Kennedy #6768 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Oscar Gardea #6680 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE

Plaintiff Officer Michael Gonzalez
Plaintiff Officer Steve Kim
Plaintiff Officer Joseph Mahar TERMINATED: 08/27/2014
Plaintiff Officer Ennis Roberson
Plaintiff Officer Leroy Outlaw
Plaintiff Officer Kieran Barton
Plaintiff Officer Jason Hoppers TERMINATED: 08/27/2014

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Joseph Mahar #5992 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Jason Hoppers #6863 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE

Plaintiff Officer Jonathan Reese
Plaintiff Officer Eugene Schubeck #6696 E-Service Only NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 360-630-4664 Plaintiff Officer Sean Hamlin
Plaintiff Officer Shannon Waldorf
Plaintiff Officer Brian Whicker TERMINATED: 08/27/2014
Plaintiff Officer Jeffrey Swenson
Plaintiff Officer Michael Spaulding #7491 E-Filing/Service NORTH PRECINCT

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Whicker #7492 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850
Plaintiff Officer Tabitha Sexton #7430 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850
Plaintiff Officer Steven Stone #7540 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 360-292-3862
Plaintiff Officer Liliya A Nesteruk
Plaintiff Officer Todd M Nelson
Plaintiff Officer Timothy Jones
Plaintiff Officer Thomas Heller TERMINATED: 08/27/2014

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Thomas Heller #7427 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133

Plaintiff Officer Michael Severance TERMINATED: 08/27/2014
Plaintiff Officer Timothy J Wear
Plaintiff Detective Theresa Emerick #5002 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-947-1413 Plaintiff Sgt Ariel Vela
Plaintiff Officer Michael A Larned #6955 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-529-7654

206-684-0850 PRO SE
represented by Michael Severance #2866 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Timothy J Wear #4900 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Jeffery Johnson
Plaintiff Officer Derek B Norton #6917 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-599-9793 Plaintiff Officer Jason Dewey
Plaintiff Officer Brett Willet
Plaintiff Officer David White
Plaintiff Officer Gretchen Hughes

represented by Jeffery Johnson #5845 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Brett Willet #7615 E-Service Only NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 Email: brett.j.willet@gmail.com PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Trent Schroeder
Plaintiff Officer Audi A Acuesta
Plaintiff Officer Steve Clark
Plaintiff Officer Steven L Berg
Plaintiff Officer John D Smith TERMINATED: 08/27/2014
Plaintiff Officer Erik Johnson
Plaintiff Officer Vernon Kelley
Plaintiff Officer Jessica Taylor TERMINATED: 08/27/2014

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by John D Smith #6291 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Jessica Taylor #6273 NORTH PRECINCT

Plaintiff Officer Shelly San Miguel
Plaintiff Officer Christopher J Anderson
Plaintiff Officer Suzanne M Parton
Plaintiff Officer Eric F Whitehead
Plaintiff Officer Brian Hanson TERMINATED: 08/27/2014
Plaintiff Officer Alan Richards
Plaintiff Officer Ron Willis

10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Brian Hanson #5954 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer A Sheheen
Plaintiff Officer Randall Higa
Plaintiff Officer Tim Owens
Plaintiff Officer Tyler Getts #7537 E-Service Only NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850
Plaintiff Officer Adam Elias
Plaintiff Officer Jon Emerick #4326 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850
Plaintiff Officer Louis Chan

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Sgt Paul Pendergrass
Plaintiff Officer Ted Cablayan TERMINATED: 08/27/2014
Plaintiff Officer Brian Kokesh TERMINATED: 08/27/2014
Plaintiff Officer AJ Marks
Plaintiff Sgt Ron Martin
Plaintiff Officer Rusty L Leslie
Plaintiff Officer TJ San Miguel

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Ted Cablayan #6236 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Brian Kokesh #6851 NORTH PRECINCT 10049 COLLEGE WAY S SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Jeffrey C Page
Plaintiff Officer Tyler P Speer TERMINATED: 08/27/2014
Plaintiff Officer Ryan Ellis
Plaintiff Officer William McCowan TERMINATED: 08/27/2014
Plaintiff Officer Austin Davis
Plaintiff Officer Jack Bailey
Plaintiff

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler P Speer #7415 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by William McCowan #7607 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Austin Davis #7617 NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-684-0850 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Officer Christopher Coles TERMINATED: 08/27/2014
Plaintiff Officer Cynthia A Whitlatch
Plaintiff Officer Randy R Ellis TERMINATED: 08/27/2014
Plaintiff Officer Jose Silva TERMINATED: 08/27/2014
Plaintiff

represented by Christopher Coles #6940 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by Cynthia A Whitlatch #6229 E-Service Only EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4300 Email: cynthia.whitlatch@seattle.gov PRO SE
represented by Randy R Ellis #5514 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Jose Silva #6919 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 PRO SE

Officerf Alfred RI Warner #6162 E-Filing/Service EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-605-3294 Plaintiff Officer Michael R Washington
Plaintiff Officer Aaron Stoltz
Plaintiff Sgt Theodore G. Visaya
Plaintiff Officer William K Campbell TERMINATED: 08/27/2014
Plaintiff

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Aaron Stoltz #6073 E-Filing/Service EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-973-6015 Email: stoltzfamily@hotmail.com PRO SE
represented by Theodore G. Visaya #5237 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by William K Campbell #6887 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE

Officer Donald D Bolton TERMINATED: 08/27/2014
Plaintiff Officer Steven E Pomper TERMINATED: 08/27/2014
Plaintiff Officer Ronald J Campbell TERMINATED: 08/27/2014
Plaintiff Officer Nina M Jones #7567 E-Filing/Service NORTH PRECINCT 10049 COLLEGE WAY N SEATTLE, WA 98133 206-685-0850 Plaintiff Officer Anthony Jones Reynolds
Plaintiff Officer Richard Heintz

represented by Donald D Bolton #5256 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by Steven E Pomper 5827 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by Ronald J Campbell #6693 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Officer Lori K Aagard TERMINATED: 08/27/2014
Plaintiff Officerf Curtis Gerry
Plaintiff Officer Adolph Torrescano
Plaintiff Officer Curt E Wilson #4505 E-Filing/Service SPD Range 11030 E MARGINAL WAY S TUKWILA, WA 98168 206-486-4552 Plaintiff Officer James G Thomsen
Plaintiff Officer Richard W Pruitt #5346 E-Filing/Service SPD RANGE 11030 E MARGINAL WAY S TUKWILA, WA 98168 206-684-7470 Plaintiff

represented by Lori K Aagard #5011 EAST PRECINCT 1519 12TH AVE SEATTLE, WA 98122 206-684-4800 PRO SE
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED

Detective Donald L Waters #6287 E-Filing/Service SPD RANGE 11030 E MARGINAL WAY S TUKWILA, WA 98168 425-226-7235
Plaintiff Officer Anthony J Reynolds
Plaintiff Officer Jonard A Legaspi #6231 E-Filing/Service SPD RANGE 11030 E MARGINAL WAY S TUKWILA, WA 98168 206-369-8974
V. Defendant Eric Holder Attorney General of the United States, and employees of the Department of Justice
Defendant City of Seattle including the Seattle Police Department, the Seattle Police Monitor Team, and the Seattle Attorney's Office
Defendant

represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Athan E Tramountanas (See above for address) ATTORNEY TO BE NOTICED
represented by Gregory Colin Narver SEATTLE CITY ATTORNEY'S OFFICE PO BOX 94769 600 FOURTH AVE 4TH FL SEATTLE, WA 98124-4769 206-684-8233 Email: gregory.narver@seattle.gov ATTORNEY TO BE NOTICED

Ed Murray individually and in his official capacity, Mayor, City of Seattle
Defendant Chief of Police Seattle Police Department individually and in his/her official capacity TERMINATED: 08/27/2014 Defendant Peter Holmes individually and in his official capacity, Seattle's City Attorney
Defendant Merrick Bobb individually and in his offical capacity, Seattle Police Monitor
Defendant Thomas E Perez Individually, Former Assistant

represented by Gregory Colin Narver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Gregory Colin Narver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bradley S Keller BYRNES KELLER CROMWELL LLP 1000 SECOND AVENUE 38TH FLOOR SEATTLE, WA 98104 206-622-2000 Fax: 206-622-2522 Email: bkeller@byrneskeller.com ATTORNEY TO BE NOTICED
Nicholas Ryan-Lang BYRNES KELLER CROMWELL LLP 1000 SECOND AVENUE 38TH FLOOR SEATTLE, WA 98104 206-622-2000 Email: nryanlang@byrneskeller.com ATTORNEY TO BE NOTICED

Attorney General TERMINATED: 08/27/2014
Defendant Jonathan M Smth individually, Chief Special Litigation Section, CRD TERMINATED: 08/27/2014
Defendant Jocelyn Samuels individually, Acting Assistant Attorney General, CRD TERMINATED: 08/27/2014
Defendant Emily A Gunston individually, Trial Attorney, Special Litigation Section, CRD TERMINATED: 08/27/2014
Defendant Timothy D Mygatt individually, Special Counsel, Special Litigation Section, CRD TERMINATED: 08/27/2014
Defendant Jenny A Durkan individually, United States Attorney, Western District of Washington
Defendant Peter Ehrlichman Deputy Monitor, individually and in his official capacity TERMINATED: 08/27/2014
Defendant

represented by Bradley S Keller (See above for address) ATTORNEY TO BE NOTICED
Nicholas Ryan-Lang (See above for address) ATTORNEY TO BE NOTICED

Ronald Ward Assistant Monitor, individually and in his official capacity TERMINATED: 08/27/2014
Defendant Matthew Barge Deputy Director, individually and in his official capacity TERMINATED: 08/27/2014
Defendant Mike McGinn individually, Former Mayor, City of Seattle TERMINATED: 08/27/2014
Defendant John Diaz individually, Former Chief, SPD TERMINATED: 08/27/2014
Defendant James Pugel individually, Former Chief, SPD

represented by Bradley S Keller (See above for address) ATTORNEY TO BE NOTICED
Nicholas Ryan-Lang (See above for address) ATTORNEY TO BE NOTICED
represented by Bradley S Keller (See above for address) ATTORNEY TO BE NOTICED
Nicholas Ryan-Lang (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/28/2014
06/17/2014

# Docket Text
1 CIVIL RIGHTS COMPLAINT against defendants (3 Summons(es) issued) (Receipt # SEA 64041), filed by plaintiffs Robert Mahoney, et al. (Attachments: # 1 Civil Cover Sheet)(PM) (Entered: 05/28/2014)
2 NOTICE of Appearance by attorney Gregory Colin Narver on behalf of Defendant City of Seattle. (Narver, Gregory) (Entered: 06/17/2014)

06/18/2014 06/20/2014 06/23/2014 06/23/2014 06/26/2014
06/26/2014 08/21/2014 08/21/2014 08/21/2014 08/21/2014

3 NOTICE of Related Case(s) 12-01282, by Defendant City of Seattle. (Narver, Gregory) (Entered: 06/18/2014)
4 MOTION to remove and to add names from the list of plaintiffs by Plaintiff Sjon Stevens. (Attachments: # 1 Proposed Order)(MD) (Entered: 06/20/2014)
5 NOTICE: Plaintiff Sjon C Stevens has registered to electronically file and receive electronic service in this case. (VB) Modified on 6/24/2014 -mailed copy of this notice to all pltfs(MD). (Entered: 06/23/2014)
6 MINUTE ORDER striking 4 Plaintiffs' Motion to remove and add names from the list of plaintiffs, by Judge Marsha J. Pechman.(MD, cc to all pltfs) (Entered: 06/23/2014)
7 RESPONSE, by Plaintiff Sjon C Stevens, to 4 MOTION to remove and to add names from the list of plaintiffs. (Stevens, Sjon) Re: 3 NOTICE of Related Case(s) 12-01282, by Defendant City of Seattle. (Narver, Gregory) Presiding Judge: Pechman , Marsha J. Modified on 6/26/2014- Plaintiff Stevens called and will re-file/link to proper document (MD). Modified on 6/26/2014 (VB). (Entered: 06/26/2014)
NOTICE of Docket Text Modification re 7 Response to Motion, : Per Filer, Response filed relates to 3 NOTICE of Related Case(s) 12-01282, by Defendant City of Seattle. (Narver, Gregory) (VB) (Entered: 06/26/2014)
8 DISREGARD THIS FILING. FILED IN ERROR. CORRECTLY FILED AS 9 MOTION to Dismiss by Defendant City of Seattle. (Attachments: # 1 Proposed Order) Noting Date 9/19/2014, (Narver, Gregory) (PS). (Entered: 08/21/2014)
9 MOTION to Dismiss by Defendant City of Seattle. (Attachments: # 1 Proposed Order, # 2 Certificate of Service) Noting Date 9/19/2014, (Narver, Gregory) (Entered: 08/21/2014)
10 NOTICE of Appearance by attorney Bradley S Keller on behalf of Defendants Matthew Barge, Merrick Bobb, Peter Ehrlichman, Ronald Ward. (Keller, Bradley) (Entered: 08/21/2014)
11 MOTION to Dismiss by Defendants Matthew Barge, Merrick Bobb, Peter Ehrlichman, Ronald Ward. (Attachments: # 1 Proposed Order) Noting Date 9/12/2014, (Keller, Bradley) (Entered: 08/21/2014)

08/21/2014
08/21/2014 08/21/2014 08/27/2014 09/03/2014 09/04/2014 09/04/2014 09/04/2014 09/04/2014
09/04/2014 09/04/2014

12 DECLARATION of Ryan-Lang ISO Mot. to Dismiss filed by Defendants Matthew Barge, Merrick Bobb, Peter Ehrlichman, Ronald Ward re 11 MOTION to Dismiss (Attachments: # 1 Exhibit 1, # 2 Exhibit 2-8)(Keller, Bradley) (Entered: 08/21/2014)
NOTICE of Docket Text Modification re 8 MOTION to Dismiss : Docket Entry stricken due to corrupted PDF document attachment. Refiled as Document #9 (PS) (Entered: 08/21/2014)
Noting Date Set/Reset re 9 MOTION to Dismiss : Noting Date 9/12/2014, (AW) (Entered: 08/22/2014)
13 AMENDED COMPLAINT against defendant(s) All Defendants, filed by Sjon C Stevens.(Stevens, Sjon) (Entered: 08/27/2014)
14 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Robert Mahoney, Sjon C Stevens. (Tramountanas, Athan) (Entered: 09/03/2014)
15 NOTICE to Withdraw Pending Motion re 11 MOTION to Dismiss ; by Defendant Merrick Bobb. (Keller, Bradley) (Entered: 09/04/2014)
16 NOTICE of Appearance by attorney Bradley S Keller on behalf of Defendant Merrick Bobb. (Keller, Bradley) (Entered: 09/04/2014)
17 MOTION Concerning FRCP 5 Service Requirements by Defendant Merrick Bobb. (Attachments: # 1 Proposed Order) Noting Date 9/19/2014, (Keller, Bradley) (Entered: 09/04/2014)
18 DECLARATION of Nicholas Ryan-Lang ISO Mot. Concerning Service Requirements filed by Defendant Merrick Bobb re 17 MOTION Concerning FRCP 5 Service Requirements (Keller, Bradley) (Entered: 09/04/2014)
19 MOTION to Dismiss the Amended Complaint by Defendant Merrick Bobb. (Attachments: # 1 Proposed Order) Noting Date 9/26/2014, (Keller, Bradley) (Entered: 09/04/2014)
20 CERTIFICATE OF SERVICE by Defendant Merrick Bobb re 18 Declaration, 19 MOTION to Dismiss the Amended Complaint, 16 Notice of Appearance, 15 Notice to Withdraw Pending Motion, 17 MOTION Concerning FRCP 5 Service Requirements (Keller, Bradley) (Entered: 09/04/2014)

09/08/2014 09/08/2014 09/10/2014 09/10/2014 09/11/2014 09/11/2014
09/12/2014
09/12/2014 09/15/2014 09/19/2014

21 NOTICE: Plaintiff Christopher Myers has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/08/2014)
22 NOTICE to Withdraw Pending Motion re 9 MOTION to Dismiss ; by Defendant City of Seattle. (Narver, Gregory) (Entered: 09/08/2014)
23 NOTICE of Appearance by attorney Gregory Colin Narver on behalf of Defendant City of Seattle. (Narver, Gregory) (Entered: 09/10/2014)
24 Stipulated MOTION Concerning Service of Plaintiffs by Defendant Merrick Bobb. Noting Date 9/10/2014, (Ryan-Lang, Nicholas) (Entered: 09/10/2014)
25 MOTION to Dismiss CITY DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT by Defendants City of Seattle, Peter Holmes, Ed Murray. (Attachments: # 1 Proposed Order) Noting Date 10/3/2014, (Narver, Gregory) (Entered: 09/11/2014)
26 ACCEPTANCE OF SERVICE of summons and complaint by counsel ACCEPTANCE OF SERVICE OF THE FIRST AMENDED COMPLAINT on behalf of Defendants City of Seattle, Peter Holmes, Ed Murray on 09/11/2014. (Narver, Gregory) (Entered: 09/11/2014)
27 ORDER - On FRCP 5 Service and Partially Stipulated Motion. All pro se Plaintiffs must sign up for service via CM/ECF within 14 days of this Order. Failure to register may result in the dismissal of your case. RE: 24 Stipulated MOTION Concerning Service of Plaintiffs filed by Merrick Bobb, 17 MOTION Concerning FRCP 5 Service Requirements filed by Merrick Bobb, by Judge Marsha J. Pechman. (MD, Copy of Order mailed to ALL PLAINTIFFS) (Entered: 09/12/2014)
28 Summons Issued as to defendant(s) Robert Mahoney. (TM) (Entered: 09/15/2014)
29 NOTICE: Plaintiff Joshua Goodwin has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/15/2014)
30 NOTICE: Plaintiff Nathan Lemberg has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/19/2014)

09/19/2014 09/19/2014 09/19/2014 09/22/2014 09/22/2014 09/22/2014 09/22/2014 09/22/2014 09/22/2014 09/22/2014 09/23/2014 09/23/2014

31 NOTICE: Plaintiff Alan Richards has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/19/2014)
32 NOTICE: Plaintiff Shannon Waldorf has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/19/2014)
33 NOTICE of Voluntary Dismissal as to party(s) Leon J Towne, filed by Plaintiff Leon J Towne pursuant to Fed.R.Civ.Proc.41(a)(1). (LMK) (Entered: 09/22/2014)
34 NOTICE: Plaintiff Tabitha Sexton has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/22/2014)
35 NOTICE: Plaintiff Robert Stevenson has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/22/2014)
36 RESPONSE, by Plaintiffs Robert Mahoney, Sjon C Stevens, to 19 MOTION to Dismiss the Amended Complaint. Oral Argument Requested. (Tramountanas, Athan) (Entered: 09/22/2014)
37 NOTICE: Plaintiff Jonard A Legaspi has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/22/2014)
38 NOTICE: Plaintiff Aaron Stoltz has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/22/2014)
39 NOTICE: Plaintiff Steven Stone has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/22/2014)
40 NOTICE: Plaintiff Nina M Jones has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/22/2014)
41 NOTICE: Plaintiff Leroy Outlaw has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/23/2014)
42 NOTICE: Plaintiff Theresa Emerick has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/23/2014)

09/23/2014 09/23/2014 09/23/2014 09/24/2014 09/24/2014 09/25/2014 09/25/2014 09/25/2014
09/25/2014 09/25/2014 09/25/2014

43 NOTICE: Plaintiff Jon Emerick has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/23/2014)
44 NOTICE: Plaintiff Michael Spaulding has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/23/2014)
45 NOTICE: Plaintiff Tyler Getts has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/23/2014)
46 NOTICE: Plaintiff Curt E Wilson has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/24/2014)
47 NOTICE: Plaintiff Michael A Larned has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/24/2014)
48 NOTICE: Plaintiff Donald L Waters has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/25/2014)
49 MOTION for Extension of Time for Plaintiffs to Register for Service via CM/ECF by Plaintiffs Robert Mahoney, Sjon C Stevens. Noting Date 10/3/2014, (Tramountanas, Athan) (Entered: 09/25/2014)
50 PRAECIPE to attach document - Proposed Order re 49 MOTION for Extension of Time for Plaintiffs to Register for Service via CM/ECF by Plaintiffs Robert Mahoney, Sjon C Stevens (Tramountanas, Athan) Modified text on 9/26/2014 (MD). (Entered: 09/25/2014)
51 NOTICE: Plaintiff Alfred RI Warner has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/25/2014)
52 NOTICE: Plaintiff Richard W Pruitt has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/25/2014)
53 NOTICE: Plaintiff Derek B Norton has registered to electronically file and receive electronic service in this case. (VB) (Entered: 09/25/2014)

09/26/2014 09/26/2014
09/29/2014 09/29/2014 09/29/2014 09/29/2014

54 REPLY, filed by Defendant Merrick Bobb, TO RESPONSE to 19 MOTION to Dismiss the Amended Complaint (Ryan-Lang, Nicholas) (Entered: 09/26/2014)
55 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Christopher J Anderson, Lance Basney, Adam Beatty, Steven L Berg, Cliff Borjeson, Louis Chan, Clarke D Chase, Steve Clark, Jason Dewey, Adam Elias, John L Farrar, Henry Feldman, Curtis Gerry, Tyler Getts, Michael Gonzalez, Joshua Goodwin, Ernest T Hall, Sean Hamlin, David M Harrington, Bridget Hillan, Gretchen Hughes, Erik Johnson, Nina M Jones, Timothy Jones, Vernon Kelley, Jonard A Legaspi, Nathan Lemberg, Ron Martin, Richard A McAuliffe, Gilles Montaron, Christopher Myers, Todd M Nelson, Derek B Norton, Leroy Outlaw, Tim Owens, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Richard W Pruitt, Anthony J Reynolds, Alan Richards, Shelly San Miguel, TJ San Miguel, Tabitha Sexton, Michael Spaulding, Joseph Stankovich, Robert Stevenson, Steven Stone, Tomas Trykar, Ariel Vela, David White, Eric F Whitehead, Ron Willis, Curt E Wilson. (Tramountanas, Athan) (Entered: 09/26/2014)
56 NOTICE: Plaintiff Jack Bailey has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/29/2014)
57 NOTICE: Plaintiff Audi A Acuesta has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/29/2014)
58 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiff Liliya A Nesteruk. (Tramountanas, Athan) (Entered: 09/29/2014)
59 RESPONSE, by Plaintiffs Christopher J Anderson, Lance Basney, Adam Beatty, Steven L Berg, Cliff Borjeson, Louis Chan, Clarke D Chase, Steve Clark, Jason Dewey, Adam Elias, John L Farrar, Henry Feldman, Curtis Gerry, Tyler Getts, Michael Gonzalez, Joshua Goodwin, Ernest T Hall, Sean Hamlin, David M Harrington, Bridget Hillan, Gretchen Hughes, Erik Johnson, Nina M Jones, Timothy Jones, Vernon Kelley, Jonard A Legaspi, Nathan Lemberg, Robert Mahoney, Ron Martin, Richard A McAuliffe, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Richard W Pruitt, Anthony Jones Reynolds, Alan Richards, Shelly San Miguel, TJ San Miguel, Tabitha Sexton, Michael Spaulding, Joseph Stankovich, Sjon C

09/30/2014 10/01/2014 10/03/2014 10/06/2014 10/07/2014 10/09/2014
10/10/2014

Stevens, Robert Stevenson, Steven Stone, Tomas Trykar, Ariel Vela, David White, Eric F Whitehead, Ron Willis, Curt E Wilson, to 25 MOTION to Dismiss CITY DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT. Oral Argument Requested. (Tramountanas, Athan) (Entered: 09/29/2014)
60 NOTICE: Plaintiff Eugene Schubeck has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 09/30/2014)
61 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs George Baseley, Jeffrey C Page. (Tramountanas, Athan) (Entered: 10/01/2014)
62 REPLY, filed by Defendants City of Seattle, Peter Holmes, Ed Murray, TO RESPONSE to 25 MOTION to Dismiss CITY DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT (Narver, Gregory) (Entered: 10/03/2014)
63 ORDER granting 49 Plaintiffs' Motion for a 14 day Extension of Time. The new deadline for pro se Plaintiffs to sign up for CM/ECF is October 10, 2014. The clerk is ordered to provide copies of this order to all counsel and Plaintiffs via CM/ECF, by Judge Marsha J. Pechman.(MD) (Entered: 10/06/2014)
64 NOTICE of Hearing 25 MOTION to Dismiss CITY DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT, 19 MOTION to Dismiss the Amended Complaint : ORAL ARGUMENT/Motion Hearing set for 10/9/2014 at 10:00 AM in Courtroom 14206 before Judge Marsha J. Pechman. (RM) (Entered: 10/07/2014)
65 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman- Dep Clerk: Rhonda Miller; Pla Counsel: Athan Tramountanas; Def Counsel: Gregory Narver, Jean Boler, Peter Holmes, Nicholas Ryan-Lang; CR: Debbie Zurn; ORAL ARGUMENT/Motion Hearing held on 10/9/2014 19 MOTION to Dismiss the Amended Complaint filed by Merrick Bobb, 25 MOTION to Dismiss CITY DEFENDANTS' MOTION TO DISMISS FIRST AMENDED COMPLAINT filed by Peter Holmes, City of Seattle, Ed Murray. Oral argument. Court will issue written opinion within fourteen days. (RM) Copy mailed to all Plaintiffs. (Entered: 10/09/2014)
66 NOTICE: Plaintiff Brett Willet has registered to receive electronic service. The party WILL NOT be e-filing. (VB) (Entered: 10/10/2014)

10/10/2014 10/10/2014

67 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Lori K Aagard, Audi A Acuesta, Christopher J Anderson, Jack Bailey, Kieran Barton, George Baseley, Lance Basney, Adam Beatty, Ryan Beck, Steven L Berg, Donald D Bolton, Cliff Borjeson, Weldon C Boyland, Robert B Brown, Robert Burk, Ted Cablayan, Ronald J Campbell, William K Campbell, Louis Chan, Clarke D Chase, Steve Clark, Christopher Coles, Austin Davis, Jason Dewey, Salvatore DiTusa, Adam Elias, Randy R Ellis, Ryan Ellis, Jon Emerick, Theresa Emerick, Brien Escalante, John L Farrar, Henry Feldman, Oscar Gardea, Curtis Gerry, Tyler Getts, Michael Gonzalez, Joshua Goodwin, Ernest T Hall, Sean Hamlin, Brian Hanson, David M Harrington, Richard Heintz, Thomas Heller, Randall Higa, Bridget Hillan, Jason Hoppers, Gretchen Hughes, Erik Johnson, Jeffery Johnson, Nina M Jones, Timothy Jones, Ryan Kannard, Vernon Kelley, Bryan Kennedy, Steve Kim, Brian Kokesh, Michael A Larned, Jonard A Legaspi, Nathan Lemberg, Rusty L Leslie, Joseph Mahar, Robert Mahoney, AJ Marks, Ron Martin, Richard A McAuliffe, William McCowan, Jeff Mitchell, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Jeffrey C Page, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Steven E Pomper, Richard W Pruitt, Jonathan Reese, Anthony J Reynolds, Anthony Jones Reynolds, Alan Richards, Ennis Roberson, Shelly San Miguel, TJ San Miguel, Trent Schroeder, Eugene Schubeck, Michael Severance, Tabitha Sexton, A Sheheen, Jose Silva, John D Smith, Michael Spaulding, Tyler P Speer, Joseph Stankovich, Sjon C Stevens, Robert Stevenson, Aaron Stoltz, Steven Stone, Jeffrey Swenson, Jessica Taylor, James G Thomsen, Adolph Torrescano, Leon J Towne, Tomas Trykar, Dale W Umpleby, Ariel Vela, Theodore G. Visaya, Shannon Waldorf, Alfred RI Warner, Michael R Washington, Donald L Waters, Timothy J Wear, Terry Whalen, Brian Whicker, David White, Eric F Whitehead, Cynthia Whitlatch, Brett Willet, Ron Willis, Curt E Wilson. (Tramountanas, Athan) (Entered: 10/10/2014)
68 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Lori K Aagard, Audi A Acuesta, Christopher J Anderson, Jack Bailey, Kieran Barton, George Baseley, Lance Basney, Adam Beatty, Ryan Beck, Steven L Berg, Donald D Bolton, Cliff Borjeson, Weldon C Boyland, Robert B Brown, Robert Burk, Ted Cablayan, Ronald J Campbell, William K Campbell, Louis Chan, Clarke D Chase, Steve Clark, Christopher Coles, Austin Davis, Jason Dewey, Salvatore DiTusa, Adam Elias, Randy R Ellis, Ryan Ellis, Jon Emerick, Theresa Emerick, Brien Escalante, John L Farrar, Henry Feldman, Oscar Gardea, Curtis

10/13/2014 10/14/2014 10/16/2014 10/17/2014 10/17/2014

Gerry, Tyler Getts, Michael Gonzalez, Joshua Goodwin, Ernest T Hall, Sean Hamlin, Brian Hanson, David M Harrington, Richard Heintz, Thomas Heller, Randall Higa, Bridget Hillan, Jason Hoppers, Gretchen Hughes, Erik Johnson, Jeffery Johnson, Nina M Jones, Timothy Jones, Ryan Kannard, Vernon Kelley, Bryan Kennedy, Steve Kim, Brian Kokesh, Michael A Larned, Jonard A Legaspi, Nathan Lemberg, Rusty L Leslie, Joseph Mahar, Robert Mahoney, AJ Marks, Ron Martin, Richard A McAuliffe, William McCowan, Jeff Mitchell, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Jeffrey C Page, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Steven E Pomper, Richard W Pruitt, Jonathan Reese, Anthony J Reynolds, Anthony Jones Reynolds, Alan Richards, Ennis Roberson, Shelly San Miguel, TJ San Miguel, Trent Schroeder, Eugene Schubeck, Michael Severance, Tabitha Sexton, A Sheheen, Jose Silva, John D Smith, Michael Spaulding, Tyler P Speer, Joseph Stankovich, Sjon C Stevens, Robert Stevenson, Aaron Stoltz, Steven Stone, Jeffrey Swenson, Jessica Taylor, James G Thomsen, Adolph Torrescano, Leon J Towne, Tomas Trykar, Dale W Umpleby, Ariel Vela, Theodore G. Visaya, Shannon Waldorf, Alfred RI Warner, Michael R Washington, Donald L Waters, Timothy J Wear, Terry Whalen, Brian Whicker, David White, Eric F Whitehead, Cynthia Whitlatch, Brett Willet, Ron Willis, Curt E Wilson. (Tramountanas, Athan) (Entered: 10/10/2014)
69 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Jon Emerick, Theresa Emerick. (Tramountanas, Athan) (Entered: 10/13/2014)
70 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiff A Sheheen. (Tramountanas, Athan) (Entered: 10/14/2014)
71 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Ryan Ellis, Rusty L Leslie, AJ Marks, Anthony Jones Reynolds. (Tramountanas, Athan) (Entered: 10/16/2014)
72 NOTICE of Appearance by attorney Athan E Tramountanas on behalf of Plaintiffs Brien Escalante, Richard Heintz, Adolph Torrescano. (Tramountanas, Athan) (Entered: 10/17/2014)
73 ORDER granting 19 25 Motion to Dismiss. The case is therefore DISMISSED for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because the Complaint has already been amended once and further amendment would be futile, the dismissal

10/20/2014 11/14/2014
11/14/2014

is with prejudice, by Judge Marsha J. Pechman.(MD) (Entered: 10/20/2014)
74 JUDGMENT BY COURT - THE COURT HAS ORDERED THAT the claims against Defendant Merrick Bobb be dismissed on the ground of quasi-judicial immunity and that the case is dismissed with prejudice for failure to state a claim. (MD) (Entered: 10/20/2014)
75 NOTICE OF APPEAL (14-35970) to Ninth Circuit re 73 Order on Motion to Dismiss,,, 74 Judgment by Court by Plaintiffs Christopher J Anderson, Jack Bailey, Kieran Barton, George Baseley, Lance Basney, Adam Beatty, Steven L Berg, Cliff Borjeson, Weldon C Boyland, Robert B Brown, Robert Burk, Louis Chan, Clarke D Chase, Steve Clark, Jason Dewey, Salvatore DiTusa, Adam Elias, Ryan Ellis, Jon Emerick, Theresa Emerick, Brien Escalante, John L Farrar, Henry Feldman, Curtis Gerry, Tyler Getts, Michael Gonzalez, Ernest T Hall, Sean Hamlin, David M Harrington, Richard Heintz, Randall Higa, Bridget Hillan, Gretchen Hughes, Erik Johnson, Nina M Jones, Timothy Jones, Ryan Kannard, Vernon Kelley, Steve Kim, Michael A Larned, Jonard A Legaspi, Nathan Lemberg, Rusty L Leslie, Robert Mahoney, AJ Marks, Ron Martin, Jeff Mitchell, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Jeffrey C Page, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Richard W Pruitt, Jonathan Reese, Anthony J Reynolds, Alan Richards, Ennis Roberson, Shelly San Miguel, TJ San Miguel, Trent Schroeder, Eugene Schubeck, Tabitha Sexton, A Sheheen, Michael Spaulding, Joseph Stankovich, Sjon C Stevens, Robert Stevenson, Steven Stone, Jeffrey Swenson, James G Thomsen, Adolph Torrescano, Tomas Trykar, Dale W Umpleby, Ariel Vela, Shannon Waldorf, Alfred RI Warner, Michael R Washington, Donald L Waters, David White, Eric F Whitehead, Ron Willis, Curt E Wilson. Filing Fee $505, Receipt number 09813810096. (Tramountanas, Athan) Modified on 12/3/2014 to add CCA#. (RE) (Entered: 11/14/2014)
76 REPRESENTATION STATEMENT, by Plaintiffs Audi A Acuesta, Christopher J Anderson, Jack Bailey, Kieran Barton, George Baseley, Lance Basney, Adam Beatty, Steven L Berg, Cliff Borjeson, Weldon C Boyland, Robert B Brown, Robert Burk, Louis Chan, Clarke D Chase, Steve Clark, Jason Dewey, Salvatore DiTusa, Adam Elias, Ryan Ellis, Jon Emerick, Theresa Emerick, Brien Escalante, John L Farrar, Henry Feldman, Curtis Gerry, Tyler Getts, Michael Gonzalez, Ernest T Hall, Sean Hamlin, David M Harrington, Richard Heintz, Randall Higa, Bridget Hillan, Gretchen

11/17/2014

Hughes, Erik Johnson, Nina M Jones, Timothy Jones, Ryan Kannard, Vernon Kelley, Steve Kim, Michael A Larned, Jonard A Legaspi, Nathan Lemberg, Rusty L Leslie, Robert Mahoney, AJ Marks, Ron Martin, Jeff Mitchell, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Jeffrey C Page, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Richard W Pruitt, Jonathan Reese, Anthony J Reynolds, Alan Richards, Ennis Roberson, Shelly San Miguel, TJ San Miguel, Trent Schroeder, Eugene Schubeck, Tabitha Sexton, A Sheheen, Michael Spaulding, Joseph Stankovich, Sjon C Stevens, Robert Stevenson, Steven Stone, Jeffrey Swenson, James G Thomsen, Adolph Torrescano, Tomas Trykar, Dale W Umpleby, Ariel Vela, Shannon Waldorf, Alfred RI Warner, Michael R Washington, Donald L Waters, David White, Eric F Whitehead, Ron Willis, Curt E Wilson, (re: 75 Notice of Appeal,,,,,,.) (Tramountanas, Athan) (Entered: 11/14/2014)
77 TIME SCHEDULE ORDER (14-35970) as to 75 Notice of Appeal, filed by Robert Stevenson, Dale W Umpleby, Adolph Torrescano, Richard W Pruitt, Clarke D Chase, Todd M Nelson, Lance Basney, David White, Tomas Trykar, Adam Beatty, Nina M Jones, Timothy Jones, Christopher J Anderson, Anthony J Reynolds, Weldon C Boyland, David M Harrington, James G Thomsen, Jack Bailey, Sjon C Stevens, Ron Willis, TJ San Miguel, Steve Kim, Ennis Roberson, Vernon Kelley, Ariel Vela, Christopher Myers, Rusty L Leslie, John L Farrar, Richard Heintz, Leroy Outlaw, Suzanne M Parton, Ryan Kannard, Sean Hamlin, Jeffrey C Page, Shannon Waldorf, Steven L Berg, Gilles Montaron, Bridget Hillan, Robert B Brown, Karen G Pio, Eric F Whitehead, Derek B Norton, A Sheheen, Louis Chan, AJ Marks, Liliya A Nesteruk, Alfred RI Warner, Adam Elias, Henry Feldman, Jeffrey Swenson, Theresa Emerick, Donald L Waters, Jon Emerick, Curtis Gerry, Tyler Getts, Brien Escalante, Kieran Barton, Trent Schroeder, Ryan Ellis, Tim Owens, Joseph Stankovich, Randall Higa, Jonathan Reese, Michael A Larned, Michael Gonzalez, Michael R Washington, Jonard A Legaspi, Curt E Wilson, Eugene Schubeck, Gretchen Hughes, Robert Burk, Steve Clark, George Baseley, Shelly San Miguel, Ernest T Hall, Jeff Mitchell, Steven Stone, Cliff Borjeson, Salvatore DiTusa, Erik Johnson, Nathan Lemberg, Paul Pendergrass, Tabitha Sexton, Alan Richards, Jason Dewey, Robert Mahoney, Ron Martin, Michael Spaulding: Mediation Questionnaire due 11/24/2014; Transcript designation due by 12/15/2014; Transcript by court reporter due by 1/13/2015; Appellants opening brief due by 2/23/2015; Appellees response brief due by 3/24/2015; Appellants optional reply brief due within 14 days of service of the response brief. (RE) (Entered: 11/18/2014)

12/15/2014 09/19/2017

78 TRANSCRIPT REQUEST by Plaintiffs Audi A Acuesta, Christopher J Anderson, Jack Bailey, Kieran Barton, George Baseley, Lance Basney, Adam Beatty, Steven L Berg, Cliff Borjeson, Weldon C Boyland, Robert B Brown, Robert Burk, Louis Chan, Clarke D Chase, Steve Clark, Jason Dewey, Salvatore DiTusa, Adam Elias, Ryan Ellis, Jon Emerick, Theresa Emerick, Brien Escalante, John L Farrar, Henry Feldman, Curtis Gerry, Tyler Getts, Michael Gonzalez, Ernest T Hall, Sean Hamlin, David M Harrington, Richard Heintz, Randall Higa, Bridget Hillan, Gretchen Hughes, Erik Johnson, Nina M Jones, Timothy Jones, Ryan Kannard, Vernon Kelley, Steve Kim, Michael A Larned, Jonard A Legaspi, Nathan Lemberg, Rusty L Leslie, Robert Mahoney, AJ Marks, Ron Martin, Jeff Mitchell, Gilles Montaron, Christopher Myers, Todd M Nelson, Liliya A Nesteruk, Derek B Norton, Leroy Outlaw, Tim Owens, Jeffrey C Page, Suzanne M Parton, Paul Pendergrass, Karen G Pio, Richard W Pruitt, Jonathan Reese, Anthony J Reynolds, Alan Richards, Ennis Roberson, Shelly San Miguel, TJ San Miguel, Trent Schroeder, Eugene Schubeck, Tabitha Sexton, A Sheheen, Michael Spaulding, Joseph Stankovich, Sjon C Stevens, Robert Stevenson, Steven Stone, Jeffrey Swenson, James G Thomsen, Adolph Torrescano, Tomas Trykar, Dale W Umpleby, Ariel Vela, Shannon Waldorf, Alfred RI Warner, Michael R Washington, Donald L Waters, David White, Eric F Whitehead, Ron Willis, Curt E Wilson Requesting Attorney: Athan E Tramountanas. (Tramountanas, Athan) (Entered: 12/15/2014)
79 OPINION of USCA (NOT THE MANDATE 14-35970) as to 75 Notice of Appeal, filed by Robert Stevenson, Dale W Umpleby, Adolph Torrescano, Richard W Pruitt, Clarke D Chase, Todd M Nelson, Lance Basney, David White, Tomas Trykar, Adam Beatty, Nina M Jones, Timothy Jones, Christopher J Anderson, Anthony J Reynolds, Weldon C Boyland, David M Harrington, James G Thomsen, Jack Bailey, Sjon C Stevens, Ron Willis, TJ San Miguel, Steve Kim, Ennis Roberson, Vernon Kelley, Ariel Vela, Christopher Myers, Rusty L Leslie, John L Farrar, Richard Heintz, Leroy Outlaw, Suzanne M Parton, Ryan Kannard, Sean Hamlin, Jeffrey C Page, Shannon Waldorf, Steven L Berg, Gilles Montaron, Bridget Hillan, Robert B Brown, Karen G Pio, Eric F Whitehead, Derek B Norton, A Sheheen, Louis Chan, AJ Marks, Liliya A Nesteruk, Alfred RI Warner, Adam Elias, Henry Feldman, Jeffrey Swenson, Theresa Emerick, Donald L Waters, Jon Emerick, Curtis Gerry, Tyler Getts, Brien Escalante, Kieran Barton, Trent Schroeder, Ryan Ellis, Tim Owens, Joseph Stankovich, Randall Higa, Jonathan Reese, Michael A Larned, Michael Gonzalez, Michael R Washington, Jonard A Legaspi, Curt E Wilson, Eugene Schubeck, Gretchen Hughes, Robert Burk, Steve Clark, George

10/11/2017

Baseley, Shelly San Miguel, Ernest T Hall, Jeff Mitchell, Steven Stone, Cliff Borjeson, Salvatore DiTusa, Erik Johnson, Nathan Lemberg, Paul Pendergrass, Tabitha Sexton, Alan Richards, Jason Dewey, Robert Mahoney, Ron Martin, Michael Spaulding. AFFIRMED. (RE) (Entered: 09/20/2017)
80 MANDATE of USCA (14-35970) as to 75 Notice of Appeal, filed by Robert Stevenson, Dale W Umpleby, Adolph Torrescano, Richard W Pruitt, Clarke D Chase, Todd M Nelson, Lance Basney, David White, Tomas Trykar, Adam Beatty, Nina M Jones, Timothy Jones, Christopher J Anderson, Anthony J Reynolds, Weldon C Boyland, David M Harrington, James G Thomsen, Jack Bailey, Sjon C Stevens, Ron Willis, TJ San Miguel, Steve Kim, Ennis Roberson, Vernon Kelley, Ariel Vela, Christopher Myers, Rusty L Leslie, John L Farrar, Richard Heintz, Leroy Outlaw, Suzanne M Parton, Ryan Kannard, Sean Hamlin, Jeffrey C Page, Shannon Waldorf, Steven L Berg, Gilles Montaron, Bridget Hillan, Robert B Brown, Karen G Pio, Eric F Whitehead, Derek B Norton, A Sheheen, Louis Chan, AJ Marks, Liliya A Nesteruk, Alfred RI Warner, Adam Elias, Henry Feldman, Jeffrey Swenson, Theresa Emerick, Donald L Waters, Jon Emerick, Curtis Gerry, Tyler Getts, Brien Escalante, Kieran Barton, Trent Schroeder, Ryan Ellis, Tim Owens, Joseph Stankovich, Randall Higa, Jonathan Reese, Michael A Larned, Michael Gonzalez, Michael R Washington, Jonard A Legaspi, Curt E Wilson, Eugene Schubeck, Gretchen Hughes, Robert Burk, Steve Clark, George Baseley, Shelly San Miguel, Ernest T Hall, Jeff Mitchell, Steven Stone, Cliff Borjeson, Salvatore DiTusa, Erik Johnson, Nathan Lemberg, Paul Pendergrass, Tabitha Sexton, Alan Richards, Jason Dewey, Robert Mahoney, Ron Martin, Michael Spaulding. The judgment of this Court, entered September 19, 2017, takes effect this date. This constitutes the formal mandate of this Court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. AFFIRMED (CDA) (Entered: 10/12/2017)

PACER Login: Description: Billable Pages:

PACER Service Center Transaction Receipt

12/30/2017 09:31:59

hs0328:2563377:0

Client Code:

Docket Report

Search Criteria:

24

Cost:

2:14-cv-00794-MJP 2.40

 
 Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 1 of 80

·---.fiLED _ ENTERED ,-LODGED ·-·-RECEIVED

1

MF-r ~. ,.; l014 lK

2

3

4

5

6

7

........_
~ .a
~

8 9

~ 10

~ 11

\()

12

13
~ 14 H 15
~ 16 17

18

~ 19 20

21

22

23

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE

Officers Robert Mahoney (#6296), Sjon

)

Stevens (#6180), Cliff Borjeson (#7597), )

Christopher Myers (#5452), and 122 other )

Officers of the Seattle Police Department )

named below,

)

Plaintiffs,

)

)

vs.

)

)

)

Eric H. Holder, Jr., individually,

)

Attorney General of the United States, and )

employees of the Department of Justice,

)

individually, named below,

)

)

The City of Seattle, including the Seattle

)

Police Department, the Seattle Police

)

Monitor Team, and the Seattle

)

City Attorney's Office,

)

)

Ed Murray, individually and in his official

)

capacity, Mayor, City of Seattle, and

)

former Mayors, individually, named below, )

)

Chief of Police, Seattle Police Department, )

individually and in his/her official capacity, )

and former Chiefs, individually, named below, )

)

Peter Holmes, individually and in his official )

capacity, Seattle's City Attorney,

)

)

Merrick Bobb, individually and in his

)

official capacity, Seattle Police Monitor, and )

'!lembers of the Monitoring Team, individually )
arid in their official capacities, named below, )
____D_ef_en_d_an_ts_._______________' __))

CMIAction£14.•~79~.~
CIVIL RIGHTS COMPLAINT UNDER 42 U.S.C. §1983 and
28 u.s.c § 1331

24

I. SUMMARY OF CLAIMS

25

Defendants have promulgated and imposed new use of force (UF) policies and

26
practices in reckless and deliberate indifference to the protections afforded Plaintiffs by the

SPD Officers'§ 1983 Complaint

I

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 2 of 80
Constitution: (1) The UF policies and practices unreasonably restrict and burden Plaintiffs'
1 right to use force reasonably required, to protect themselves and others, from apparent harm
2
and danger, in violation of the Second, Fourth, Fifth, and Fourteenth Amendments of the
3
Constitution. (2) The new UF policies and practices require - without appropriate
4
5 consideration of an officer's knowledge, training, experience, or the apparent danger of the
6 circumstances confronting him or her - that Plaintiffs use significantly less force than is being
7 threatened against them by suspects. This includes, for example, prohibiting Plaintiffs from
8
using reasonable and effective force tools or techniques against vaguely defined, newly
9
protected classes of suspects unless deadly force is the only other option. This significantly
10
11 increases the likelihood that such persons will get killed or seriously injured in encounters
12 with the police - a terrible result and a violation of those suspects' rights - as well as a clear
13 violation of constitutional protections afforded Plaintiffs to reasonably protect themselves
14
and others from threats of harm. (3) In the balancing of interests required by the Fourth
15
Amendment, Plaintiffs' right not to be required to take unnecessary risks with their personal
16
17 safety in the performance of their duties are consistently violated, by the UF policies and
18 practices, in favor of suspects' alleged rights in situations where suspects appear to be or are
''-._
engaged in threatening and dangerous conduct. (4) The UF policies and practices work to
20
undermine and destroy the longstanding totality-of-the-circumstances standard for making,
21
analyzing, and reviewing officers' reasonable UF decisions by undermining, at each step, the
22
23 integrity of officers' judgments as a whole. (5) The Court requires UF standards to be
24 simple, practical and useful to the officer doing his or her job. The new UF Policy clearly is
25 not. In some places it is overly complicated and contradictory, in other places overly precise
26
and mechanical, but throughout, requires Plaintiff to engage in mental gymnastics wholly

SPD Officers' § 1983 Complaint

2

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 3 of 80

unreasonable in light of the dangerous and fast evolving cifcumstances we face every day.

1 This creates unnecessary and, therefore, unconstitutional risks to Plaintiffs' safety. (6) The
2
UF policies and practices require Plaintiffs to under-react to threats of hann until we have no
3
choice but to overreact. This makes it inevitable - although unnecessary and unreasonable -
4
5 that officers and citizens will get killed or seriously injured. Moreover, the policies and

6 practices are designed to trap Plaintiffs into violations even where Plaintiffs did, or could

7 have, acted in a completely reasonable and justifiable manner under the law. This places
8
unconstitutional risks and burdens on Plaintiffs' lives and livelihood and necessarily subjects
9
them to the very second-guessing prohibited by the Constitution. (7) The UF policies and
10
11 procedures attempt to fundamentally alter longstanding principles and standards governing

12 acceptable and lawful police conduct, thus significantly altering the terms and conditions of
13
Plaintiffs' employment, including potentially interfering with Plaintiffs' rights to qualified
14
immunity for their reasonable uses of force, without Plaintiffs having had any meaningful
15
16 opportunity to participate and be heard in the process.

17

18

II. JURISDICTION and PARTIES

19
1. Plaintiffs, sworn officers of the Seattle Police Department (SPD), bring this action under
20
42 USC § 1983 against the City of Seattle, including the SPD, and certain City of Seattle
21

22

(City) employees, including Mayors, Chiefs of Police, and the Seattle Police Monitor

23

(Monitor) and his staff(Monitoring Team), alleging that Defendants have deprived

24
Plaintiffs of the rights and protection secured for them by the Second, Fourth, Fifth and
25
Fourteenth Amendments of the Constitution under color of policies and practices of the
26

SPD Officers'§ 1983 Complaint

3

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 4 of 80

City related to Plaintiffs' use of force in their interactions with threatening or resisting

1

suspects.

2
2. Plaintiffs also have a cause of action, under 28 USC §1331, against the United States
3
Attorney General (AG) and certain officials of the U.S. Department of Justice (DOJ).
4

5

DOJ officials are a party to the consent decree under which the UF policy has been

6

implemented in order to remedy an alleged pattern and practice of excessive UF.

7

Moreover, it is clear from this case as well as other DOJ investigations around the

8
Country that DOJ's explicit goal is to re-write longstanding policing standards around use
9
of force in a manner that conflicts with the Constitution. Though the Monitor is paid by
10

11

the City, it has been made clear to the City that the Monitor will not fmd the City in

12

compliance until the City and SPD establish and implement new UF policies and

13

practices that include the unconstitutional standards dictated by DOJ.

14
3. A complete list of Plaintiffs, including badge numbers and contact information is
15
attached to this Complaint. A complete list of Defendants, with contact information, is
16

17

also attached.

18
Ill. INTRODUCTION
19
20 4. It is unfortunate that we have to file this complaint. Plaintiffs emphatically agree with

21

Defendants that 'constitutional policing is effective policing'. Moreover, notwithstanding

22
the reams of paper, and huge bills for the City being generated by DOJ and the Monitor,
23
there is one, simple goal and point of agreement that addresses the entirety of DOJ's
24

25

investigation of SPD: "The goal of the Parties in entering the Settlement Agreement is to

26

ensure that SPD's use of force is consistent with the requirements ofthe United States

SPD Officers' § 1983 Complaint

4

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 5 of 80

Constitution." SPD and the City agreed to this - and only this - even as they adamantly

1

disagreed with DOJ's fmdings of excessive force. Accordingly, SPD and the City agreed

2
to develop a UF Policy consistent with the constitutional standards and principles set
3
forth in Graham v. Connor.
4
5 5. What SPD and the City have drafted instead, however, with heavy-handed oversight by

6

DOJ and the Monitor, is a policy that wholly disregards the Court's clear prioritization of

7

the practical safety issues facing police officers over burdensome policy requirements, in

8
light ofthe Court's understanding ofthe dynamics of threatening and violent encounters
9
with suspects. The new policy substantially undermines the constitutional protections
10

11

and rights afforded Plaintiffs - asking us to take unreasonable risks with our safety and

12

our lives. As a consequence, it leaves the public significantly less safe as well.

13 6. Research shows, overwhelmingly, that police officers under-react and hesitate in the face

14
of threats of violence, and are often killed or seriously injured as a result. Moreover, the
15
Court expressly is cognizant of this country's long history of armed violence, particularly
16

17

by suspects against police officers. Thus, overwhelmingly, standard police doctrine,

18

policy and best practices, based on decades of related case law, require officers first and

19

foremost to assess the threat presented by the suspect, and to react reasonably in response

20
to the threat, without delay or hesitation. By contrast, the new UF Policy requires patrol
21
officers to focus, not on the nature ofthe threat, but instead to recall pages and pages of
22

23

confusing and often contradictory factors, qualifiers, analyses, and special considerations

24

for certain classes of suspects, which greatly impairs the decision-making process for

25

officers. This is especially problematic considering that these decisions are often made

26
under extremely difficult, emotionally-charged and dangerous circumstances where time-

SPD Officers'§ 1983 Complaint

5

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 6 of 80

consuming and nuanced analysis is virtually impossible. The UF policy further induces

1

hesitation because officers are fearful of censure and sanction should their actions, in

2
hindsight, be judged to have violated any of a number of layers of rules and provisions
3
that invite conflicting interpretation. What is more, the policy requires that many UF
4

5

decisions be made, and judged, after-the-fact, based on the 'actual threat', rather than the

6

'reasonably perceived threat', which has long been the constitutional standard for both

7

police officers and citizens. The real-world effect of this UF Policy is to induce a

8
reluctance by patrol officers to use appropriate and sufficient levels of force to control
9
dangerous suspects. It effectively creates hesitation and paralysis by analysis that puts
10

11

officers, suspects and the general public at greater risk of injury or death, as a situation

12

that might have been quelled early on is allowed to spiral to increasingly higher levels of

13

violence because the officer uses too little force too late. The new policy is the type of

14
policy the Court has consistently rejected. The Court has time and again overturned
15
allegedly "helpful," but overly prescriptive and mechanical rules and policies under the
16

17

Fourth Amendment, in favor of simple and practical policies that defer to officers' actual

18

knowledge and experience on the street. It is a policy that places compassion for

19

suspects' difficulties and conditions (perhaps not misplaced in other contexts) squarely at

20
odds with Plaintiffs' and the publics' safety. As courts consistently hold: a threat of
21
danger is a threat of danger, regardless of the suspect's mental or other impairments that
22

23

may be contributing factors to a suspect's dangerous criminal behavior.

24 7. Not surprisingly, there is already evidence of significant problems wrought by the new

25

UF Policy. Aside from evidence that officers are hesitating and/or failing to use

26
appropriate and lawfully justified force to address threats safely and effectively, there is

SPD Officers'§ 1983 Complaint

6

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 7 of 80
evidence of a dramatic decrease in proactive police work to investigate and stop crime. Officers are turning in their TASERS in large numbers - even though such devises provide reasonable and effective tools when facing threatening conduct - because Plaintiffs are confused about how and when we can use them and see too great a possibility for unreasonable discipline under the UF Policy. Patrols officers will testify to an insidious new hesitation to respond to calls for backup. We are increasingly unsure how much help we can offer since our responses are so burdened and constrained by the UF Policy, and whether or not providing backup is worth the risk of unreasonable disciplinary action or termination. This hesitation has only increased as, Plaintiffs will testify, we are now being brought in to headquarters like criminal suspects and subjected to intimidating, non-consensual recorded interviews for conduct that was widely accepted as effective and lawful policing just a few months ago. Meanwhile, first responding officers, required by the UF Policy to delay and avoid immediately resorting to force, are left unnecessarily and unreasonably vulnerable when backup fails to come, and the delay and avoidance tactics fail to bring the threat under control. Plaintiffs will present evidence of a significant increase, that began even before the policy became final, in injuries to patrol officers because we are hesitating to respond to threats with adequate and reasonable force. Citizens are feeling vulnerable as patrol officers avoid acting in reasonable response to threats to public safety. Publicized cases include incidents where officers have done nothing, or retreated from suspects who threatened the officer with death or serious physical injury, leaving the officer, other officers on the scene, and the public unnecessarily exposed to serious danger or death. Not surprisingly, in published articles,

SPD Officers' § 1983 Complaint

7

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 8 of 80
bystanders have expressed anger and concern at what they see as sworn officers' failure to protect innocent people. The bold, new disregard for police authority in the streets of Seattle - as evidenced, for example, by a recent letter by more than 40 individuals and officials who wrote to the Mayor asking for immediate enforcement resources to deal with increasingly violent incidents downtown - is the natural and logical consequence of a policy that so decisively places the interests of criminal suspects ahead ofthe rights and interests of officers, citizens, and the City. There are other serious risks to Plaintiffs' safety created by the new UF Policy. It is so long, complex and contradictory that Washington State Criminal Justice Training Commission (CJTC) personnel have stated that they have no idea how to conduct training for it, and therefore will not. Plaintiffs will testify to being significantly less sure ofhow to police under the new UF Policy even than when we first became police officers. Moreover, as the new policy is implemented, it is becoming increasing clear that our fears are in fact the new reality: We are being judged under an impossible standard that puts our lives at unnecessary and therefore unreasonable risk. Plaintiffs have taken the opportunity to observe meetings of the Use afForce Review Board (UFRB) which, under the new policy, is required to review every Type II and III UF incident. This includes, for example, any time a patrol officer takes down a suspect in order to arrest him or her, and the suspect "complains" that there was an injury (as the overwhelming majority of criminal suspects reflexively and glibly do when placed under arrest). In specific cases where patrol officers have had practical, safety reasons for their conduct due to the danger ofthe situation and threat created by the suspect, the Monitor, who was in attendance, emphatically stated: "Practical considerations never trump this

SPD Officers' § 1983 Complaint

8

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 9 of 80

policy." This is completely wrong, and a 180 degree contortion of the Court's holdings

1

which consistently prioritize officer safety over mechanical applications of policy,

2
particularly when the suspect has engaged in unlawful threatening behavior.
3
10. What has become increasingly clear is that the new standard for police conduct under the
4

5

UF Policy is perfection, as determined in 20/20 hindsight by inexperienced, untrained

6

civilians and non-patrol officers from the safety of a desk or committee room. This

7

standard of perfection was expressed previously by Defendant McGinn in his "Vision for

8
the Future," when he promised that Seattle police officers using force "will get it right
9
every time." Perfection, however, is totally at odds with the Constitution. Perfection can
10

11

never be a realistic, fair, or appropriate standard when patrol officers are required to

12

regularly confront, and protect the public from, people who commit crime, abuse drugs

13

and alcohol, fail to take prescribed medications, behave violently, have access to

14
dangerous weapons, are often mentally ill, and do not care whether or not their actions
15
conform with the law or the rules of society. Requiring the impossible of patrol officers
16

17

will result in less effective policing and in unreasonable and unnecessary risks to our

18

lives and livelihood.

19 11. These are not problems that can be tweaked, adjusted to, or trained around, with "self-

20
analysis," over some arbitrary transitional period, as suggested by the Monitor. As the
21
allegations of this Complaint make clear, serious misinterpretations and misapplications
22

23

of long-standing legal principles - and the unconstitutional risks created thereby - are at

24

the core of the new policy and impact every aspect of it.

25 12. These pervasive and systemic problems have been created, ironically, in response to
26
DOJ's highly suspect evidence of alleged excessive force, and even though DOJ's

SPD Officers' § 1983 Complaint

9

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 10 of 80

fmdings themselves make clear that excessive use of force is an issue - if at all - only for

1

a tiny minority of SPD officers. DOJ demanded and imposed the new UF Policy,

2
acknowledging that almost all the cases where it alleged excessive use of force

3
"involve[d) people with mental illness, or people under the influence of drugs and
4

5

alcohol." It then ignored the consistent and cumulative evidence regarding the

6

magnitude of the crisis involving untreated mentally ill individuals in urban areas across

7

the United States, and the intersection between untreated mental illness and drug abuse,

8
dangerous and unpredictable behavior, and violence involving guns and other deadly
9
instruments. DOJ demanded policy changes without meaningful consideration of
10

11

recognized use of force science, which consistently discredits the core "pause and

12

deliberate" strategies imposed by DOJ. It also ignored research regarding both the

13

physiology of decision-making under tense, uncertain, and rapidly unfolding

14
circumstances, and the disadvantage facing officers who, by definition, operate behind
15
the reactionary curve when they are called to respond to the threatening conduct and
16

17

behavior of suspects. Most significantly - considering DOJ's role as the Nation's enforcer

18

of the Constitution - DOJ made its findings and imposed its remedy without regard for

19

the longstanding standards regarding use of force under that very Constitution.

20
13. As sworn police officers, we have undertaken a dangerous occupation, and each day we
21
knowingly accept its accompanying risks. We participate in continuing and extensive
22

23

training regarding suspects' rights and have never sought a blank check on using force.

24

Nor are we insensitive to the problems facing the mentally ill. In fact, we are uniquely

25

called upon to cope with their plight first-hand, every day. What this Complaint alleges

26
is that we cannot be required to take unnecessary and, therefore, unreasonable risks with

SPD Officers'§ 1983 Complaint

10

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 11 of 80

our lives and our safety. That, while we consistently are called to the scene of the

1

dangerous epicenter of a societal crisis not of our making, we cannot be required to

2
respond as "mental health professionals"- which we are not- and at the same time be
3
unreasonably burdened from using our lawful authority and force - the unique and
4

5

crucial skills we bring to the crisis - in order to protect ourselves and the public.

6 14. The danger DOJ created when it demanded a new UF policy - disregarding any input

7

from or the experience ofpatrol officers, especially in Seattle, and without regard for the

8
longstanding rule of law or the appropriate role ofthe police - is the most serious threat
9
to officer and public safety faced by the City in years, and, if not immediately rectified,
10

11

will negatively impact the City for decades to come.

12

IV. FACTUAL BACKGROUND

13
15. On December 17,2013, Judge Robart, United States District Court Judge for the Western
14
District of Washington at Seattle, issued an order approving an alleged "Consensus Use of Force
15
Policy" (UF Policy) to govern SPD. The court approved the policy as appropriate "for the
16

17

present circumstances." Judge Robart indicated that his role was to insure that the UF Policy

18

was constitutional. However, his cursory, one-and-one-half page order, contains no substantive

19
analysis of the UF Policy or its constitutionality, and, in fact, statements in the opinion contradict

20
well-established case law on how police officers are supposed to make determinations regarding
21

22

the lawfulness and reasonableness of their actions. The UF Policy went into effect on January 1,

23

2014.

24 16. The "circumstances" referred to by Judge Robart include an investigation opened in March, 2011
25
by Defendant Thomas E. Perez, former Assistant Attorney General (AAG) of the Civil Rights
26
Division of DOJ regarding whether or not SPD officers deprived individuals oftheir

SPD Officers'§ 1983 Complaint

11

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 12 of 80

constitutional rights by patterns and practices of discriminatory policing or excessive use of

1

force. After its investigation, DOJ was unable to make any findings of discriminatory

2
policing. However, DOJ issued findings (Findings Letter), including that when SPD patrol
3
officers use force "they do so in an unconstitutional manner nearly 20% of the time."
4

5

Subsequently in July 2012, a Settlement Agreement and Memorandum of Understanding

6

(Consent Agreement) was entered into between the United States, SPD and the City. In the

7

Consent Agreement, SPD and the City specifically "dispute[d] the alleged patterns or

8
practices of excessive force alleged in DOJ's report." Nevertheless, they agreed to develop a
9
new UF policy consistent with the constitutional requirements of Graham v. Connor. The
10

11

Consent Agreement also provided that the parties would select a federal monitor to oversee

12

implementation of the Consent Agreement. Defendant Merrick Bobb (Monitor) is the monitor

13

selected by the parties. The Monitor publicizes his work on a website called the "Website of the

14
Seattle Police Monitor," and his salary is paid by the City. The City to date has paid the Monitor
15
and his staff (Monitoring Team) over $700,000.00. On November 27, 2013 the Monitor
16

17

submitted the UF Policy approved by Judge Robart, with an accompanying Memorandum to the

18

Court (UF Memorandum), alleging that the policy met the requirements of the Consent Decree.

19 17. Plaintiffs are primarily SPD patrol officers, and are the individuals most significantly and

20
immediately affected by the new UF Policy. We are also the individuals with the most
21
knowledge, training and experience regarding the UF situations facing patrol officers in Seattle.
22

23

Moreover, many SPD patrol officers are established and recognized experts in use of force

24

techniques, practices and standards. Nevertheless, no SPD officers concurrently engaged in

25

street policing duties were involved in the development of the UF Policy. DOJ and the monitor

26

SPD Officers' § 1983 Complaint

12

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 13 of 80

choose instead, inexplicably, to consult the "rank-and-file in Los Angeles" to determine if the

1

new policies "compromise[d] the safety of Seattle police officers and the public they serve."

2
18. In the very last days of the process, select Plaintiffs were invited to submit comments through
3
the Seattle Police Officers' Guild (SPOG) and a departmental website called, Idea Scale.
4

5

However, it soon became clear that they were solicited without any intention of affecting

6

decisions already made by the Monitor and DOJ. Nevertheless, Plaintiffs provided a thorough

7

review of the draft and identified how and where the draft policy conflicted with use of force

8
best practices, the realities facing patrol officers on the streets of Seattle, and the protections
9
afforded officers under the Second, Fourth and Fourteenth Amendments. These concerns were
10

11

ignored. Plaintiffs again attempted to communicate their concerns to those involved in the

12

process, before the draft became a final policy. Plaintiffs were told, in effect: "This is what DOJ

13

and the Monitor are telling SPD to do regardless of whether or not it makes good sense or is

14
good law. A federal judge has approved it. There's nothing SPD can do about it. It's a 'done
15
deal."'
16

17 19. The Monitor's UF Memorandum claims that the UF Policy represents a 'consensus' and 'unified

18

voice.' This is inaccurate to the point of falsification. As almost every other statement in the UF

19

Memorandum acknowledges, there has been, and Plaintiffs allege continues to be, a profound

20
lack of consensus around the UF Policy. As is made clear above, despite Plaintiffs' vital role in
21
the implementation of, and our significant impact from, the UF Policy, we were not even a party
22

23

to the supposed 'contentious' and 'exhausting' negotiations the Monitor claims led to the final

24

consensus on the new UF policy. Patrol officers were never meaningfully consulted during the

25

process, and our Guild, though allegedly "consulted" by the Monitor, was not a party to, or at the

26
table for, official decisions regarding significant, fundamental rights and interests of its

SPD Officers' § 1983 Complaint

13

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 14 of 80

members. Plaintiffs contend that any appearance of 'consensus' asserted by the Monitor is

1

simply due to the fact that he ran roughshod over any criticism and concerns, and that the

2
various involved parties simply gave up. This reality is reflected in the tone of the Monitor's
3
semiannual reports, which are self-serving, combative, and bullying. It is now clear that the
4

5

Monitor and DOJ all along intended to use SPD and the City as a test-case to re-write

6

longstanding constitutional law and principles - and to undermine reasonable police practices

7

based on these principles - with which they disagree.

8
20. Defendant, Eric H. Holder, Jr., is theAG of the United States, and it was on his behalfthe
9
Consent Agreement was signed by Defendant Perez and Defendant Jenny S. Durkan, US
10

11

Attorney, Western District of Washington. Defendants Perez, Durkan and Defendant, Jonathan

12

Smith, Chief of Special Litigation for DOJ worked closely with the Mayor's office to develop

13

the Consent Agreement and the subsequent UF Policy, as did other members of the Special

14
Litigation Section, including Defendants Emily Gunston and Timothy Mygatt. DOJ continues to
15
be involved in the implementation of, and training under, the new policy. Defendant Jocelyn
16

17

Samuels is the current Acting AAG for Civil Rights.

18 21. Defendant Michael McGinn is the former Mayor of Seattle, and Defendant Peter Holmes is the

19

Seattle City Attorney, each of whom signed the Consent Agreement on behalf of the City.

20
Defendant Edward B. Murray is the newly elected Mayor of Seattle under whose administration
21
the UF Policy will be implemented. John Diaz was the Chief of Police at the time the Consent
22

23

Agreement was entered into and the UF Policy was being developed. Defendant James Pugel

24

was Interim Chief of Police while the UF Policy was being developed and at the time it was

25

submitted to the Court.

26

SPD Officers'§ 1983 Complaint

14

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 15 of 80

V. CONSTITUTIONAL CLAIMS

1

A. Plaintiffs Have the Right to Self-Defense and Defense of Others Under the Second

2

and Fourth Amendments and These Rights are Violated by the UF Policy.

3 1. When a police officer is confronted with threatening behavior, he or she has the fundamental,

4

individual right of self-defense under the Second Amendment, consistent with every other

5
citizen, to protect himself or herself, and others, from apparent and immediate harm. As the
6

7

Court has long recognized, the rules that define and determine self-defense are of universal

8

application and are not affected by the character of a person's employment. Indeed, where

9

employees have a duty to protect others, their right to defend themselves and others is arguably

10
enhanced. In many ways, these rights closely overlap patrol officers' rights to use force under the

11
Fourth Amendment, especially when defending themselves against suspects who pose an
12

13

immediate threat to their safety or the safety of others.

14 2. However, distinct from the Fourth Amendment standard of'objective reasonableness' is a long

15

tradition of self-defense law that establishes a 'reasonable belief standard. As such, there need

16
only be 'reasonable grounds' for a person's belief that he or she is in imminent or immediate
17
danger at the time of the acts in self-defense or defense of others. Like objective reasonableness,
18

19

the reasonable belief standard does not rest on the 'actual facts' of the situation, but rather on the

20

'apparent danger' perceived by the individual acting in defense of self or others. Moreover,

21

under the Second Amendment, the more serious the apparent danger perceived at the moment of

22
self-defense or defense of others, the less detached or 'objective' the test of reasonableness has to
23
be.
24

25 3. As discussed in detail in section VI.A below, the UF Policy, particularly the deadly force

26

provision, violates Plaintiffs' rights and protections secured by theses standards under the

SPD Officers'§ 1983 Complaint

15

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 16 of 80

Second Amendment. We state again, we are not seeking unfettered, unregulated permission to

1

use force. Our complaint is against the situation created by the UF Policy whereby sworn patrol

2
officers are placed at unreasonable risk and disadvantage vis-a-vis suspects who threaten deadly
3
harm or serious bodily injury. Moreover officers are placed at a disadvantage in protecting
4

5

themselves and the public compared to ordinary citizens, notwithstanding that officers are given

6

both the trust and responsibility to respond to and protect the public from danger.

7

B. Police Officers have Constitutional Protections under the Fourth Amendment,

8

Distinct from the Interests of the Government, and/or the Rights of the Citizens and

These Protections are Unreasonably Burdened by the UF Policy.

9

1. The Supreme Court's Fourth Amendment jurisprudence -the core legal parameters that guide
10

11

police interactions with persons engaged, or suspected of engagement, in criminal activity -

12

contains clear and longstanding standards and principles regarding seizures by police officers.

13

In fact, force is itself a seizure, and therefore subject to the same requirements for reasonable

14
suspicion and probable cause as all other seizures. The Fourth Amendment balances three
15
distinct sets of interests when considering the reasonableness of an officer's decision to make a
16

17

seizure: (1) the private citizen's interests against unreasonable intrusion by the government; (2)

18

the government's interest in detecting, investigating, and preventing crime; and (3) the "more

19

immediate interest of the police officer" in protecting himself or herself and others from danger,

20
because it is unreasonable to require that police officers take unnecessary risks in the
21
performance of their duties. Thus, the Fourth Amendment gives patrol officers distinct
22

23

constitutional protection against being required to take unnecessary risks with their lives and

24

safety.

25 2. Plaintiffs want to be clearly understood. We know our job puts us in danger. We willingly
26
accept these risks in large part because our job also allows us the privilege to serve and protect

SPD Officers' § 1983 Complaint

16

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 17 of 80

the innocent. Obviously, we are not arguing that the Constitution grants us the right to dictate, to

1

our employers, all the terms of a UF Policy. We also are not arguing that the Constitution

2
requires our employer (SPD and the City) to do the impossible, e.g., control suspects' dangerous

3
behavior, or keep us at all times safe. We are arguing that the Constitution provides us certain
4

5

rights and protections: Our employer cannot make policy decisions and impose policy

6

requirements that put us at unnecessary and, therefore, unreasonable risk when confronting

7

threatening or resisting suspects, and which require us to take unnecessary and, therefore,

8
unreasonable risks with our safety and the safety of the public we serve. Longstanding Fourth
9
Amendment case law has worked a careful balance among these rights and interests by
10

11

examining the objective reasonableness ofthe officers' conduct based on the totality ofthe

12

circumstances perceived by that officer at the time force is used, particularly the immediacy of

13

the threat to the safety of the officers and others. The UF Policy consistently undermines that

14
balance, ignoring and discounting the threat presented by suspects, unreasonably restricting and
15
burdening officers' ability to take necessary actions, and requiring officers to take unreasonable
16

17

risks. In doing so, the UF Policy attempts to re-define as 'excessive', force that is reasonable in

18

light of the threat to officers' safety at the time, and thus undermines the protections afforded

19

police officers under the Fourth Amendment's careful scheme.

20
C. Patrol Officers Are Not Required to Forfeit Their Rights In Order to Obtain,

21

Retain, or Perform Their Job Under the Fourth and Second Amendments.

22 1. DOJ, the City and SPD leadership are under the mistaken belief that they can unreasonably
23
restrict and burden, and subsequently punish Plaintiffs, for using reasonable force allowed by the
24
Second and Fourth Amendments, in a confrontation between the police and suspects. Plaintiffs'
25

26

constitutional protections against being required to take unreasonable risks, however, are

SPD Officers'§ 1983 Complaint

17

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 18 of 80
incorporated, and apply to the States and municipalities, such as the City and SPD, under the Fourteenth Amendment. As applies against all Defendants, the Court holds that public employees do not lose Fourth Amendment rights when they work for the government. Nor are they relegated to watered-down versions of constitutional protections. Moreover, the Court specifically holds that constitutional protections against unreasonable search or seizures do not disappear because the government employer has the right to make reasonable intrusions or impositions. Here Plaintiffs are granted protection under the Second and Fourth Amendments not to be required to take unreasonable risk with their safety. It is the unreasonable risk itselfthat is the constitutional injury, and it is the policy and practices demanded by DOJ and implemented by the City and SPD that have created this risk. The Fourth Amendment authorizes Plaintiffs to take reasonable action in response to threatening and dangerous conduct by suspects. While suspects may cause bodily harm and even death to Plaintiffs, it is the intentional conduct of government actors that expressly restricts and burdens police officers' authority to take the reasonable actions necessary to protect themselves and others from that danger. Thus it is the conduct of government actors that have caused unreasonable risk and the constitutional violation under § 1983.
D. DOJ's Factual Justification for the Alleged Constitutional Violations by SPD Patrol Officers is Speculative, has been Discredited, and therefore cannot Support the Remedy Imposed by DOJ. The factual analysis on which DOJ bases its assertion that there existed a pattern and practice of unconstitutional, excessive force used by SPD patrol officers has been discredited and is incorrect. DOJ repeatedly refused to provide the City, SPD or the public with the data, methods, or analysis it used to reach its conclusion that 20% ofUF situations utilized excessive force. The

SPD Officers'§ 1983 Complaint

18

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 19 of 80
little information DOJ did provide indicates that its key fmding comes from an extrapolation from a random sample ofUF reports. It is therefore nothing more than speculation. An independent analysis by researchers under the supervision of Matthew Hickman, a Professor at Seattle University, and a former statistician for DOJ itself, examined - in totality - every single UF report during the time period that was considered, and extrapolated from, by DOJ. In stark contrast to DOJ's unsupported assertion, the Hickman study found that only 3.5% of the cases could be characterized as even "potentially" excessive. In addition, DOJ's finding regarding the prevalence of excessive force directly conflicts with other key findings by DOJ such as: the "great majority" of Seattle's police officers do not use excessive force; the pattern of excessive force exists only for a very small "subset" of officers; that supervisory oversight should focus only on the "very small number" of officers who use force frequently; and that the alleged 20 officers whom DOJ is concerned about represent only 4% of SPD officers that used force in 2010. DOJ goes so far as to concede that if there is anything, there is only an "appearance," not the reality, of a wide-spread problem, thus refuting their own conclusions.
E. DOJ, SPD, and the City have attempted to Fundamentally Alter the Terms and Conditions of Plaintiffs' Employment without a Meaningful Opportunity to be heard in Violation of the Due Process Clause of the Fifth and Fourteenth Amendments. The Due Process Clause of the Fifth Amendment prohibits a federal agency, such as DOJ, from depriving individuals of life, liberty or property without the due process of law. Similarly, the due process clause of the Fourteenth Amendment prohibits state actors from doing the same. Clearly such rights are at stake here. Plaintiffs believe that the UF Policy requires them to take unnecessary and therefore constitutionally unreasonable risks with their safety in the

SPD Officers' § 1983 Complaint

19

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 20 of 80

performance of their duties, including subjecting them to unnecessary risks of death and serious

1

bodily injury. There can be no argument that such deprivation requires due process.

2
Furthermore, even though Plaintiffs recognize that we assume a certain level ofrisk by accepting
3
employment as police officers, we do not accept that we must forfeit our constitutional
4

5

protections by doing so, nor, therefore, that we can be coerced into assuming unnecessary,

6

unreasonable risks. Moreover, Plaintiffs believe we will face unreasonable disciplinary actions,

7

lawsuits, loss of employment, and the inability to obtain police employment in other

8
jurisdictions, if and when we are accused of violating the new UF Policy, even though our
9
actions were reasonable under the law. Such property interests at issue have been established by
10

11

statutes, regulations, SPD procedures, and collective bargaining agreements governing the

12

employment relationship between police officers and the City.

13 2. Notwithstanding these significant and serious liberty and property interests, DOJ has imposed,

14
and the City and SPD have acquiesced, in the fundamental rewriting of nearly universal,
15
longstanding, constitutionally grounded rules of acceptable, i.e. reasonable, police conduct.
16

17

They did so without providing Plaintiffs any meaningful opportunity to be heard, even though it

18

is our safety and livelihood that is most significantly and immediately affected by the policy

19

changes. They did so without meaningful consultation with or involvement from SPOG. They

20
did so notwithstanding that many SPD patrol officers are recognized experts in the field of use of
21
force standards and techniques. They ignored Plaintiffs' experience and expertise, even as the
22

23

Monitor inexplicably consulted with the "rank and file" police officers in a different state, a

24

different type of city, in a different region of the country. This is particularly troubling when the

25

constitutional standard at issue- whether the police officers' conduct was objectively reasonable

26

SPD Officers'§ 1983 Complaint

20

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 21 of 80

- depends on an examination of the specific knowledge, experience, training and circumstances

1

facing those officers.

2
3. A key condition of Plaintiffs' employment is the availability of qualified immunity when officers
3
are sued based on claims that we used excessive force. This is an essential condition, as patrol
4

5

officers are required to respond to dangerous, tense, and uncertain circumstances on a daily

6

basis, and the public wants us to do so with confidence in order to protect them. Qualified

7

immunity recognizes that to reasonably ask this of police officers, they must be protected from

8
the fear of unfair lawsuits, particularly in the hazy border between excessive and acceptable
9
force. Qualified immunity also recognizes that police officers can act reasonably under the law
10

11

even when they are mistaken as to the facts and circumstances at the time, or how the law will

12

apply to those facts. As discussed below, the UF Policy, by contrast, legislates and requires

13

perfect and exact responses by police in their encounters with dangerous and threatening

14
suspects. Such an approach undermines the longstanding totality of the circumstances standard
15
by which officers' conduct should be assessed, and thus throws into question patrol officers'
16

17

immunity - a significant right and essential condition of our employment - without any

18

meaningful opportunity to be heard.

19
20 VI. SPECIFIC CONSTITUTIONAL VIOLATIONS UNDER TITLE 8 (UF Policy)

21

A. The Deadly Force Provisions of the UF Policy Violate Plaintiffs' (Officers')

22

Constitutional Rights by Basing the Reasonableness of the Decision to Use Deadly

Force on the 'Actual' Facts and Circumstances, instead of those 'Apparent' to the

23

Officer at the Moment Deadly Force is Used.

24

1. The new UF provisions, are found in Title 8 of the Seattle Police Manual, a copy of which

25
can be found on the Monitor's web site: www.seattlemonitor.com. Under Sec. 8.100.5 ofthe
26
UF Policy, deadly force may be used only, and without exception, in circumstances where

SPD Officers' § 1983 Complaint

21

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 22 of 80

the threat of death or serious physical injury to the officer or others IS imminent. The UF

1

Policy then imposes the following conditions on the objective reasonableness standard for

2
determining whether or not an imminent danger is PRESENT: The suspect IS acting in a
3
manner or threatening to cause death or serious physical injury to the officer; AND the
4

5

suspect, in fact, HAS the "means or instrumentalities;" AND HAS the "opportunity and

6

ability" to do so. These requirements are completely contrary to the overwhelming history of

7

constitutional precedent that protect a police officer, or citizen, if he or she acts on a

8
mistaken belief regarding the 'actual' facts as long as the officer or citizen had a reasonable
9

belief in, or acted in an objectively reasonable manner in the face of the 'apparent' danger
10

11

presented by the suspect at the time. When patrol officers are categorically restricted in their

12

ability to respond to reasonably perceived threats of death or serious physical injury, the

13

protection and rights granted them by the constitutional principles of self-defense and

14
defense of others are burdened to the point of destruction in violation of the Second and
15

16

Fourth Amendments.

17

2. Moreover, under the core provision authorizing force, Sec. 8.100, patrol officers are

18

prohibited, without exception, from using physical force except when "no reasonably

19

effective alternative appears to exist." Jurisprudence under the Second and Fourth

20
Amendments, however, has consistently made clear that when there is a reasonable belief
21

22

regarding a threat of death, or serious physical injury, or where the officer's conduct was

23

objectively reasonable in light of the circumstances, the Constitution protects him or her for

24

actions taken in self-defense or defense of others regardless of whether or not there existed

25
less intrusive means, or alternatives to self-defense or defense of others, such as inflicting a
26
less serious injury to, retreating from, or containing, or negotiating with the suspect.

SPD Officers' § 1983 Complaint

22

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 23 of 80

B. The UF Policy is Unconstitutional Because Throughout it Forces Patrol Officers to

Use Less Force Than is Reasonably Required by the Threat, thus Requiring Officers to

1

Take Unnecessary Risks in the Performance of Their Duties.

2
1. Under the Second, Fourth and Fourteenth Amendments, the appearance of an immediate
3
threat justifies an immediate response with reasonable force. Anything else, requires
4

5

officers to take unnecessary and unreasonable risks in the performance of their duties, and

6

the Constitution provides them protection from such risks.

7

2. Nevertheless, the core provision authorizing force under the UF Policy, Sec. 8.1 00,

8
categorically prohibits an officer from using physical force that is reasonable unless, in
9
addition to being reasonable, the force also is necessary - which means the officer has first
10

11

considered all apparent "reasonably effective alternatives." Yet, even the Ninth Circuit has

12

expressly rejected that an officer must first avail himself or herself of all the less, or the least,

13

intrusive alternatives available to him or her, under the reasonableness standard. The Circuit

14
found that such a requirement would place unreasonable burdens on police officers under the
15
Constitution by demanding superhuman judgment. In turn this would make them hesitate
16

17

and be tentative; it would deter them from protecting themselves and others; and it would

18

invite endless, unreasonable second-guessing.

19

3. The policy also makes a wholly new requirement nowhere found in constitutional case law

20
that force must be "proportional to the threat" (Sec. 8.100.1 ). This is an extra-constitutional
21
requirement and serves only to add layers of complexity and precision to a standard that the
22

23

Court demands, by contrast, be simple and flexible.

24

4. Sec. 8.100.1 also states that: "proportional force does not require officers to use the same

25

type or amount of force as the subject." Defendants are likely to argue that this provision

26
allows an officer to retain discretion to use the level of force he or she judges appropriate to

SPD Officers' § 1983 Complaint

23

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 24 of 80

the circumstances, even force greater than that threatened by the suspect. In fact, however,

1

any such deference to officers' judgment is consistently and overwhelmingly contradicted by

2
operation of other parts of the policy. For example, officer discretion is overridden by the

3
policy's requirement throughout that use of force "shall" in all cases precisely be "only the
4

5

degree... necessary." It is also overridden by the policy's explicitly restrictions on officers'

6

rights to use certain levels and types of force - even in immediately threatening situations -

7

unless a variety of other factors, conditions, qualifiers are or are not present, and not before

8
officers have engaged in the time-consuming mental gymnastics necessary to satisfy all the
9
complex and contradictory requirements of the new UF Policy. The real effect ofthe policy
10

11

is to keep patrol officers constantly second-guessing their actions, meanwhile remaining at a

12

dangerous force deficit throughout encounters with threatening suspects. Obviously, this

13

puts Plaintiffs' safety at unreasonable risk whenever we go out on call. It also means that no

14
matter what we do, someone can, after-the-fact, point to some provision of the policy and
15
say we did it wrong. This puts our livelihood at unreasonable risk.
16

17

5. Sec.8.200, categorically and without exception, prohibits officers from using less-lethal tools

18

against vaguely defined, newly protected classes of suspects (visibly pregnant, elderly, pre-

19

adolescent, visibly frail, or known or suspected to be disabled) absent active aggression,

20
unless deadly force is the only other available option. These five categories are sufficiently
21
broad, subjective and vague so as to encompass a broad swath of individuals, and to invite
22

23

significant error in application and improper second-guessing. Moreover, by operation of

24

this rule, an officer cannot use reasonable and effective force tools or techniques (i.e., tools

25

and techniques specifically intended to "disrupt subject's threatening behavior" without the

26
probability of death or serious physical injury) until deadly force is justified. This makes no

SPD Officers' § 1983 Complaint

24

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 25 of 80

sense as a matter of public policy. In the apparent attempt to protect certain groups of

1

individuals, the UF Policy actually increases the likelihood that such persons will get killed

2
or seriously injured in encounters with the police - a clear violation of those suspects' rights.
3
It also unreasonably burdens the protections granted police officers under the Fourth
4

5

Amendment, because it restricts officers from responding with the force reasonably required

6

by the circumstances at and from the moment they arrive on the scene.

7

6. Sec. 8.200.5 also categorically restricts an officer from using these less-lethal tools and

8
techniques against suspects in another nine (9) sets of circumstances absent active
9
aggression. This means the suspect can be actually resisting, or actively noncompliant with
10

11

officer's commands - a potential indication of an intent to do harm to the officer -yet the

12

officer cannot, without exception, respond with less-lethal techniques before considering

13

every "other fashion" of reasonable response (e.g. all other alternatives).

14
7. The UF Policy consistently requires officers ftrst to consider alternatives to force (e.g., Sec.
15
8.000.2 "officers will de-escalate conflict without using physical force;" Sec. 8.100.3
16

17

"officers shall use de-escalation tactics"). It attempts to qualify these provisions in order to

18

make them seem reasonable and/or constitutional. Here, for example, stating that de-

19

escalation is required only "when time and safety permit..." Such qualifiers are pretty, but

20
useless, window dressing at best. At worst, they add complexity to a policy that is already
21
unwieldy and unworkable to the point of putting officers' lives at risk. Moreover, they serve
22

23

to disguise how the policy, taken together as a whole, is out and out wrong. Specifically,

24

officers are told to delay only "when time and safety permit," - this sounds reasonable - but

25

in the very same provision we are required to do the exact opposite and take unreasonable

26
risk. This is because we are required by the provision to delay and not use force even though

SPD Officers' § 1983 Complaint

25

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 26 of 80

(1) our safety has already been compromised by the subject's lack of compliance (i.e.,

1

under Sec. 8.100.3 officers consider not if the subject is non-complaint, but the reasons for

2
the suspect's "lack of compliance"); and (2) there is an immediate threat ("mitigating the

3
immediacy of the threat" is the assumed situation when these rules apply). Bottom line
4

5

again, the UF Policy consistently throws roadblocks in the way of officers lawful and

6

reasonable use of force. Doing so subjects us to unreasonable risks to our safety, and to the

7

constant, unreasonable threat that we will be sanctioned for performing our job in anything

8
less than a perfect (impossible!) manner under the policy.
9
8. The UF Policy operates under a mistaken and dangerous assumption that threatening
10

11

situations always move in a linear, predictable direction. It assumes that de-escalation will

12

inevitably result in a reduction of the use of force, because additional time and space

13

"promote more rational decision-making" by suspects, and because it is better to have more

14
time for "more officers or specialty units" to respond to the scene. The policy direction
15
comes directly from DOJ who criticized SPD's training of its officers to quickly "command
16

17

and control" situations, proposing instead that it require its officers to engage in a "fair fight"

18

with suspects.

19

9. The constitutional protections and rights afforded police officers, however, certainly do not

20
rely on an assumption that suspected criminals will fight fair or behave rationally. Moreover,
21
such an understanding by DOJ is totally at odds with current research, as well as with 22

23

officers' first-hand professional experience, which demonstrates that using decisive force

24

early in response to an immediate threat is often what keeps the situation from ending in

25

necessarily greater uses of force, or tragedy. The UF Policy is therefore also at odds with the

26
Fourth Amendment's core principle, discussed further below, that the reasonableness of aUF

SPD Officers'§ 1983 Complaint

26

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 27 of 80

be judged only, and in every case, under the totality of the circumstances, from the

1

perspective of the officer on the scene at the time force is used. AUF Policy which, as in

2
all the sections discussed above, ties a Plaintiffs hands without regard for the specific
3
circumstances facing the officer at the moment and without any place for consideration of
4

5

the knowledge, training, or experience of the officer, violates this fundamental Fourth

6

Amendment principle.

7

C. The UF Policy is Unconstitutional Because it Establishes Separate Rules for Certain

8

Categories of Suspects, and Requires Police Officers to Act as Medical and Mental

Health Professionals Beyond the Reasonable Scope of their Duties and Professional

9

Qualifications.

10

1. The Fourth Amendment specifically rejects the application of separate tracks or categorical

11
rules when considering the mentally ill, or any other category of suspect, to determine
12
reasonableness when that suspect is behaving in a threatening or resistant manner.
13

14

Nevertheless, (1) the de-escalation provisions unconstitutionally mandate that an officer's UF

15

decision take into account the suspect's mental and physical state, even where the suspect is

16

actively non-compliant; and (2) the Tool Specific provisions unconstitutionally tie an

17
officer's hands in cases involving five new categories of actively threatening suspects based
18
on physical and/or mental conditions. These parts of the UF Policy seem driven directly by
19

20

DOrs goal, in all cases, of eliminating use of force against people who are having a mental

21

health crisis or who are under the influence of drugs or alcohol; in other words, defining as

22
excessive any force used against such persons. This is based on its mistaken notion that
23
"assessing the appropriate force in light of a subject's mental state is not just smart policing,
24
it is required." DOJ is fundamentally wrong. Courts hold just the opposite. The crucial
25

26

factor in deciding whether or not there was excessive force is the nature and immediacy of

SPD Officers' § 1983 Complaint

27

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 28 of 80

the threat. Thus, the Constitution does not allow second-guessing of an officer's UF

1

decision, even though the officer failed to diagnose mental illness, because requiring

2
otherwise is impractical and dangerous. This cannot be stated too strongly: a threat of

3
harm, is a threat of harm regardless of what mental or physical conditions cause the
4

5

threat!

6

2. Moreover, considering even just one of the factors - whether or not the suspect is

7

experiencing a drug interaction - highlights how extremely problematic these requirements

8
are. Police officers are not medical or mental health professionals. It can take doctors and

9
mental health professionals months or years to figure out a patient's diagnosis, drug
10

11

interactions, and appropriate means of communication, therapy, and treatment. Yet the UF

12

Policy requires police officers, as a precursor to using reasonable force, to make on-the-spot

13

mental health status evaluations and diagnoses under circumstances that will be, by

14
definition (given the suspect's non-compliance), threatening, volatile, and potentially
15
dangerous or deadly.
16

17

3. Police are not called to the scene to be therapists or mediators. They are called by family

18

members, potential victims, medical and mental health professionals, and others who are

19

afraid for their safety or the safety of others, precisely because police officers have the

20
clear authority to use decisive force as soon as it is required. (In fact, in Seattle, fire,
21
medical, and/or mental health personnel will not respond to the scene to assist or
22

23

involuntarily commit mentally ill patients until patrol officers arrive if there is any potential

24

for violence.) AUF policy that disregards the facts and reality of the patrol officer's role

25

when dealing with threatening or dangerous behavior is totally at odds with a constitutional

26

SPD Officers' § 1983 Complaint

28

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 29 of 80

scheme that protects and gives deference to the men and women who willingly undertake

1

that role.

2
D. The UF Policy's Imposition of Categorical Rules Related to the Mentally Ill and

3

Other Categories of Suspects Violates the Fourth Amendment Requirement that Use of

Force be Judged Based on the Experience, Knowledge and Training of the Patrol

4

Officer on the Scene.

5
1. The UF Policy's categorical, special treatment of mentally ill suspects or those impaired by
6
drug use or other conditions, flies in the face of the knowledge, training, and experience of
7

8

working patrol officers who interact with these individuals on a daily and weekly basis.

9

Consideration of, and deference to, such knowledge, training and experience is mandated by

10

the Fourth Amendment. Throughout its Findings Letter, DOJ consistently identified erratic

11
and non-compliant behavior by suspects as deserving of "special," gentle handling.
12
However, patrol officers and experts in the field of policing across the country, understand
13

14

that the exact behavior DOJ identifies as benign (yelling expletives at oneself, staring into

15

space, bulging eyes, sweating, balled fists, disregarding or refusing officer commands, taking

16

off pieces of clothing) can be, and often is in fact, evidence of Excited Delirium and/or

17
"boiling point," pre-attack indicators, i.e. evidence that a suspect's behavior is not only not
18

benign, but likely to become violent and rapidly escalate his or her attack on officers or the
19

20

public.

21

2. Research also shows a strong correlation between mental illness and the use and abuse of

22
drugs. It shows that drug abuse, in turn, is strongly correlated with violent behavior and that
23
drug abusers do not respond to usual norms of behavior as suggested by DOJ's and SPD's de24
escalation requirements. What is relevant is what Plaintiffs have learned from their years of
25

26

training and experience on patrol. The Fourth Amendment does not permit judges, or in this

SPD Officers' § 1983 Complaint

29

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 30 of 80

case DOJ and its Monitor, to look back in perfect hindsight, from the safety of their

1

chambers or offices, to second-guess what patrol officers actually faced at the moment and

2
know from real experience on the streets. Nor does it permit, as has happened here, aUF

3
Policy to be based on the experience of officers in another jurisdiction over a thousand miles
4

5

away. The Monitor absurdly consulted the "rank-in-file in Los Angeles" to determine if the

6

UF Policy would keep Seattle patrol officers safe. Moreover, it is clear from the background

7

of the so-called police experts on the Monitoring Team, that it has been years since they, if

8
ever, made actual UF decisions in the line of duty.
9
3. It is too easy for DOJ attorneys and consultants- or even police officers who spend time at
10

11

desks writing policy, performing administrative functions, or even training officers in the

12

practice hall - to forget the reality facing officers on the street. It is too easy for those not

13

doing the job, to discount how frequently Plaintiffs are called, how threatening it feels, and

14
how objectively dangerous it is, for example, to respond to a 911 call and find a
15
schizophrenic man who has stopped taking his medications, threatening to hurt family
16

17

members, himself, innocent bystanders, or the officers, and who has ready access to weapons

18

or other objects that can be easily used with serious or deadly effect. The Constitution, by

19

contrast, offers Plaintiffs protection for precisely these reasons, giving deference to the

20
reasonable judgments and actions of patrol officers facing just such circumstances.
21

E. The UF Policy is Unduly Burdensome and Confusing, Forcing Officers to Consider

22

so Many Factors, in the Heat of the Moment, that Timely and Reasonable Judgments

23

in the Face of Threats Becomes Virtually Impossible, Requiring Officers to Take

Unnecessary Risks in the Performance of Their Duties.

24

I. Under the Fourth Amendment cases leading up to Graham, as well as its progeny, the right
25

26

of the officer to make arrests and investigatory stops necessarily carries with it the right to

SPD Officers'§ 1983 Complaint

30

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 31 of 80

use some degree of force, as long as its reasonable in inception and scope. The standard for

1

whether or not force is excessive is also clear and longstanding: Were the officers' actions

2
objectively reason~ble in light of the facts and circumstances confronting them at the
3
moment force was used? The most important single factor in determining whether use of
4

5

force is reasonable, and therefore whether the officer's conduct is protected by the

6

Constitution, is whether or not the suspect posed an immediate threat to the safety of the

7

officer or others. This is because the safety of the officer and others is the critical issue.

8
Fourth Amendment jurisprudence recognizes that officers often enter unpredictable,
9
threatening situations, and, under the stress of often extreme circumstances, must do their
10

11

best to keep everyone safe and unharmed, while also being knowledgeable and responsive to

12

the constitutional rights of all the parties involved, including those of the suspect.

13

2. Given the difficulty of the task, the Constitution demands that the principles and process

14
regarding UF decision-making, just like those for all seizures, must be fluid, flexible,
15
practical, simple, clear, non-technical, and based on common sense, i.e. useful to the officer
16

17

in his or her work on the street, even if not necessarily useful to legal technicians in the

18

safety of their chambers and offices. The principles, policies and practices must be ones that

19

can be applied consistent with an officer's need to make split-second decisions, under an

20
indefinite variety of situations and threats, in tense, dangerous, and rapidly unfolding
21
circumstances. DOJ found that SPD's previous UF policy was "vague." Yet, the Court has
22

23

expressly rejected such a concern. The Court acknowledges that reasonable suspicion and

24

probable cause as determined by the totality-of-the-circumstances standard can appear vague

25

or elusive, but has repeatedly held that it is the only standard that can be practical and useful

26
to officers in the field.

SPD Officers' § 1983 Complaint

31

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 32 of 80

3. Standards are not useful, and therefore not constitutional, when they distort this approach by,

1

for example, being overly specific, complicated, categorical, mechanical, or a neat set of

2
rules, even if they purport to be helpful by giving officers an "easy to apply" legal test.
3
Precise mechanical rules can never substitute for flexibility and experience, as there is
4

5

nothing predictable, easy, or neat about what a patrol officer faces when he or she responds

6

to a volatile call, which may require that force be used. Reality simply does not lend itself to

7

being divided up and pigeon-holed into neat, clearly defined and immediately discernible

8
categories, according to precise bright-line, mechanistic rules. Notwithstanding years of
9
cases to this effect, the new UF Policy attempts precision and specificity. Accordingly, we
10

11

have ended up with a policy that complicates, confuses, and undermines how officers

12

realistically can make these judgments and how those judgments will be analyzed and

13

reviewed after-the-fact.

14
a. The UF Policy is Overly Complicated.
15
1. Contrary to this mandate for simplicity and flexibility, Judge Robart approved what he
16

17

acknowledged is a "comprehensive" and "specific" policy. Yet, on its face, a policy

18

cannot be useful to patrol officers facing dangers and making split-second decisions, when

19

that policy is over 60 pages long! And requires an additional, new 50-page manual for SPD

20
investigators to explain how to investigate UF under the new policy.
21
2. Consider the crucial Sec. 8.100 regarding when force is authorized. The policy deceptively
22

23

states the underlying law correctly: An officer uses only reasonable force "based on the

24

totality of the circumstances known by the officer at the time of the use of force;" it must be

25

"judged from the perspective of a reasonable officer on the scene, rather than with the 20/20

26
vision of hindsight;" and the assessment must "embody allowance for the fact that officers

SPD Officers' § 1983 Complaint

32

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 33 of 80

are often forced to make split-second decisions--in circumstances that are tense, uncertain,

1

and rapidly evolving." However, the UF Policy then operates to undermine everything it

2
just stated. First, it promulgates a set of 12 separate, multi-layered, non-exclusive factors
3
that must be considered by the officer to determine reasonableness. (Graham lists three.) It
4

5

then requires officers also to apply two extra-constitutional requirements (necessity and

6

proportionality) discussed in detail in Sec. B. 2. above. Next, the policy establishes five

7

situations in which force is categorically prohibited (Sec. 8.100.2). In addition, the officer

8
must consider seven factors related to suspects' mental and physical behavior that must be
9
"balanced" in an officer's decision-making process. If the policy is not be an exercise in
10

11

second-guessing, as it purports not to be, these 26 factors, requirements and situations all

12

must be considered and evaluated, and the officer's response must be calibrated accordingly,

13

in the "split-second" the officer has to make the decision whether or not to use force in the

14
face ofthreatening behavior. This is an impossible task. It makes a mockery of the
15
protections granted by the Fourth Amendment to police officers' reasonable judgments and
16

17

actions in the heat ofthe moment.

18

3. Incredibly, these multi-layered and multi-factored analyses address only the initial question

19

of whether or not force can be used. Under Sec. 8.000.3, the officer must then consider his

20
or her prior conduct to determine the level of force he or she is permitted to use. Also under
21

Sec. 8.200, the patrol officer has to assess whether or not a suspect falls into any of five
22

23

categories before being permitted to use a certain level of force. After engaging in that

24

fraught-with-potential-for-error assessment of suspects, the officer must also know and

25

factor in, under Sec. 8.200- POL 1-10, another 13 pages of detailed rules regarding ten

26
specific tools and techniques, again, by definition, under tense, uncertain, and rapidly

SPD Officers' § 1983 Complaint

33

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 34 of 80

evolving circumstance. The UF Policy operates to defY reason, common sense, and the

1

protections and rights given Plaintiffs under the Constitution.

2
4. The policy contains yet another complex, mechanical scheme related to the reporting and
3
investigation of UF incidents. The new policy creates four categories of types of force (§
4

5

8.050). In addition, it creates a four-part classification of types of injuries(§ 8.050). Finally,

6

it creates detailed rules for ten specific force tools (§8.200-POL-1-10). Under§ 8.300-

7

POL-1, the policy creates a complex overlay that combines, type of force, type of injury, and

8
type of force tool, to create different categories of reporting requirements for officers and
9
screening requirement for supervisors. As the the policy also requires throughout that
10

11

officers justify each and every separate force application, see e.g., §§ 8.200-POL-1.11;

12

8.200-POL-3.9; 8.200-POL-5.6; 8.200-POL-6.5, officers must somehow ensure they are

13

cognizant ofthis complex system even as they make UF decisions in the split-second

14
required in the face of suspects' threatening behavior.
15
5. Moreover, the factors that the officer uses to justify, and that supervisors, commanders, and
16

17

citizens use to review, the use of force must be the same factors the officer uses to make his

18

force judgments and decisions on the scene. If factors are too complicated and contradictory

19

to facilitate reasonable decisions in the heat of the moment, then they cannot be used, after-

20
the-fact, to invalidate the officer's judgment and conduct. This is constitutionally
21
unreasonable, though clearly what is mandated by the reporting and review provisions ofthe
22

23

policy.

24

25

26

SPD Officers'§ 1983 Complaint

34

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 35 of 80

b. The UF Policy Applies Segmented and Deconstructive Rules to Officers'
Judgments in Violation of the Fourth (and Second) Amendments.
1

2

1. The UF Policy violates the protections granted patrol offers under the Fourth Amendment by

3

requiring both analysis ofthe officer's prior conduct, and a post-hoc, point-by-point critique

4

of the incident. These work together to invalidate the totality standard's focus on "the

5
circumstances confronting the officer" ... "at the moment" force was used. For example,
6
under Sec. 8.000.3, patrol officers are warned that "their conduct prior to the use of force,"
7

8

including the "display of a weapon," can be a factor in determining whether or not the

9

subsequent use of force was necessary (again ignoring that the constitutional test is

10

"reasonableness"). This expressly contradicts the Ninth Circuit and other circuits holding

11
that conduct preceding the seizure, including alleged 'tactical errors' (as determined, by
12
definition, only in 20/20 hindsight) is irrelevant to the Fourth Amendment analysis of
13

14

reasonableness.

15

2. Moreover, it makes no sense to the reality of the officer's experience. Officers routinely have

16

their frrearms out and at the ready when, for example, they search and clear a building, or

17
approach suspects during high-risk vehicle stops. In such cases, the threat is the uncertainty,
18
and officers need to be armed and ready, because they are always behind the reactionary
19

20

curve of a potential suspect who has decided to shoot, stab, slash, or smash as a means of

21

resistance or escape. The fact that the officer displaying his gun may have caused a suspect

22

to respond by pulling out his gun is absolutely irrelevant to what happens next. Just like any

23
other citizen, an officer facing a threat of death or serious physical injury may reasonably 24

respond to that threat with deadly force. The new UF Policy creates questions and
25

26

SPD Officers'§ 1983 Complaint

35

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 36 of 80

uncertainties as to the validity of long-standing and time-tested police practices and

1

protocols, which are intended to protect officers from unnecessary risks.

2
3. Under Sec. 800.3, officers are also required to "continually assess the situation" and
3
"modulate the use-of-force appropriately." In addition, throughout Sec. 8.200-POL-1-10,
4

5

officers are required to "justify" and "report" each separate use of a less lethal device during

6

a single incident, including that "each subsequent application of force is a separate

7

application of force that must be individually justified." Under Sec. 8.300, officers are

8
required to document, and supervisors are required to review, in all but de minimis force,
9
each and every blow or application of force. (Sec. 8.300-POL-1, 8.300-POL-1.1) We know
10

11

from DOJ's findings in its similar review of use of force by the Portland Police Bureau, that

12

DOJ explicitly advocates a "segmented approach" to use of force claims, whereby

13

supervisors consider, after-the-fact, "each point when an officer made a decision that may

14
have an effect on subsequent events" - the ostensible point here allegedly being to allow
15
"intensive" reviews of the reasonableness of the officer's conduct in order to identify "flawed
16

17

tactical decisions."

18

4. It should be noted that, by DOJ's own words noted above, it is admitting that its approach to

19

UF review is expressly designed to lead to unconstitutional second-guessing, 20/20 hindsight

20
critiques, Monday Morning Quarterbacking, or whatever other description one prefers to
21

employ. However, such a "divide and conquer," reductionist analysis has been expressly and
22

23

repeatedly rejected by the Court. The Fourth Amendment looks at UF as a continuous event

24

until the threat is decisively stopped or contained. Thus, the officer's judgment and actions

25

must be assessed cumulatively, i.e., as a whole picture taken together, without imposing a

26
sequencing of distinct events in order to poke holes and find flaws, or to explain away each

SPD Officers'§ 1983 Complaint

36

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 37 of 80

element in an officer's cumulative judgment as innocent and thus, not relevant, in and by

1

itself. Such an unconstitutional method has no other aim than post hoc analysis and

2
judgment in an effort to undermine the protection and deference granted officers' judgments
3
by the Constitution.
4

5

c. The UF Policy Improperly Applies Precise and Mechanical Defmitions to

the Test of Reasonableness.

6

1. Fourth Amendment case law is quite clear. The test of reasonableness is not capable of
7

8

precise defmition or mechanical application. In violation ofthis tenet, the UF Policy is

9

littered with overly precise definitions and mechanical requirements. For example,

10

throughout the UF Policy, officers "shall use only the degree of force..." (e.g., 8.000.4).

11
This type of precision and quantification is impossible and not at all demanded by the
12
reasonableness standard. It is in fact explicitly rejected Under Sec. 8.1 00.6, the UF Policy
13

14

establishes an inclusive and rigid 3-part rule for fleeing felons, including, a verbal warning

15

requirement, notwithstanding that the Court has specifically rejected just such rigid rule(s).

16

In these circumstances, as in all cases of force, the officer's conduct must be evaluated based

17
on one flexible standard: was it objectively reasonable in light of the circumstances as they
18
appeared to the officer at the time of the incident? Any other mechanical test undermines the
19

20

protections granted police officers not to take unnecessary and therefore unreasonable risks

21

with their safety or the safety of others.

22

2. In addition, Sec. 8.050 divides force into qualitatively separate and distinct types. The

23
categorical force type is then applied mechanically for purposes of both an officer's decision,
24
and SPD's and the City's after-the-fact analysis and review, to determine whether or not the
25

26

officer should be disciplined and/or criminally charged for the UF. Such a mechanical

SPD Officers' § 1983 Complaint

37

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 38 of 80

scheme defming and categorizing levels of force smacks of an attempt to impose a UF

1

continuum on SPD. Requiring officers to pigeon-hole force types before, during, and after

2
their decision to use force, complicates and hampers their ability to respond to the particular
3
circumstances they face. It also implies that mechanical decisions can always be made
4

5

regarding when and what force is reasonably required to meet a suspect's threatening

6

behavior and/or resistance. Plaintiffs know from experience this is never true. Not

7

surprisingly, continuums and mechanical schemes have been discredited by law enforcement

8
experts, even those in other departments of the DOJ itself, as unconstitutional and
9
promoting dangerous, ineffective policing. Even with so-called 'deadly force', the Court has
10

11

eliminated the notion that there exists a magical on/off switch for determining the type of

12

force used by an officer. The only question is: were the officer's actions reasonable in the

13

particular circumstances as they appeared at the time force was used.

14

15
VII. HARM CAUSED AND RELIEF SOUGHT
16

17

A. Plaintiffs Claims of Harm are Real, Significant, Immediate and Continuous.

18

1. The dangers and harm cited by Plaintiffs are real, not exaggerated or conjectural. The

19

Constitution long holds that imposing any standard on police judgment and conduct, other

20
then the totality ofthe circumstances standard, creates unnecessary and therefore
21
unreasonable risks to Plaintiffs' safety and the safety of the public. This unnecessary and
22

23

unreasonable risk is itself the injury. Plaintiffs identify the plethora of ways in which the

24

UF Policy violates the totality ofthe circumstances standard, and thus creates unnecessary

25

risks to their safety each time Plaintiffs go out on a call. If further evidence of the

26
unnecessary risks created by the policy is useful, Plaintiffs will show numerous incidents

SPD Officers'§ 1983 Complaint

38

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 39 of 80

where patrol officers have hesitated or failed to use appropriate levels of force under the

1

circumstances, including cases where officers have frozen, or retreated from suspects who

2
threatened the officer with death or serious physical injury. In these cases the officer(s) and
3
public were unnecessarily exposed to serious danger or death - and in many cases officers
4

5

have been injured - due to the environment, practices, and policies created by the

6

Defendants. Patrol officers will testify to greatly increased disregard, provocation, resistance,

7

and threatening belligerence by suspects since the delay and avoidance policy and practices

8
began to be imposed. Instead of creating effective and constitutional policing in Seattle,
9
DOJ has empowered its criminals to openly defy legitimate police authority, and made the
10

11

police and public significantly less safe, by producing unconstitutional, ineffective policing.

12

2. Moreover, as DOJ consistently recognizes that there is a national crisis in the mental health

13

system affecting, in particular, urban centers such as Seattle, and an inappropriately large

14
part of the burden of this crisis falls on the police. DOJ also acknowledges that Seattle has
15
seen "horrific murders committed by mentally ill offenders," of both citizens and police
16

17

officers. It acknowledges the 2009 unprovoked, unexpected murders of five on-duty,

18

uniformed police officers in and around Seattle, and the wounding of a sixth officer. It

19

claims, unconvincingly, in light of the rest of its findings, "not [to have] underestimated the

20
impact of these events on all police, and particularly on SPD officers." In fact, the mental
21
health crisis presents enormous and significant challenges and threats to Seattle police
22

23

officers that puts our lives and the lives of innocent bystanders at risk when we cannot

24

respond with reasonable force.

25

3. More generally, FBI's Uniform Crime Reports show, for example, since 2010 between 48

26
and 72 police officers were feloniously killed each year in the line of duty. Perhaps more

SPD Officers' § 1983 Complaint

39

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 40 of 80

significantly in each of those years, between 53,000 and 57,000 officers were assaulted by

1

suspects - or 10 out of every 100 sworn officers - and on average about 27%, or almost one-

2
third of these officers, sustained injuries as a result of the assault. The dangers to police
3
safety are real and they are significant. Every 911 call has the potential to tum harmful or
4

5

deadly.

6

B. Plaintiffs' Harm Began Before the Final Policy Went Into Effect.

7

1. While the actual UF Policy has only been in place since January 2014, the standards

8
reflected in it have been imposed on SPD in practice, by DOJ, since it issued its Findings
9
Letter on December 16, 2011, and quickly became the pattern and practice of what has been
10

11

required of patrol officers since that time. Officers have already been, as we will continue to

12

be, trained to "pause," hesitate, over-think, and under-react to dangerous situations. What

13

this means is that the court should consider evidence prior to the UF Policy going into effect

14
where Plaintiffs have been required by training or practices to take unnecessary risks with
15
their safety and where there have been improper disciplinary actions, loss of paid work, and
16

17

improper dismissal from such force.

18

C. Plaintiffs Seek an Immediate Injunction and Declaratory Relief.

19

1. Plaintiff's seek an immediate injunction against the implementation ofSPD's UF Policy that

20
went into effect on January 1, 2014, and all related training, in light of Plaintiffs' serious and
21
significant allegations regarding the unconstitutionality of the UF Policy, and the dangers it
22

23

creates to the safety of SPD patrol officers and the public. The immediacy of this injunction

24

is crucial. Since the intrusion of DOJ in 2011, SPD patrol officers, including new officers at

25

the Academy (CJTC), have been - to the extent that any coherent, sensible 'training' is

26
possible under the new policy - improperly trained, or rather, conditioned to hesitate, to wait,

SPD Officers' § 1983 Complaint

40

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 41 of 80

to not act in the face of threats of danger. The longer this training/conditioning is ingrained,

1

the harder it will be to undo, and the safety of officers and the public is further endangered

2
for years, if not decades, to come.
3
2. Plaintiffs further seek a declaratory judgment that the UF Policy is unconstitutional and
4

5

beyond repair. Plaintiffs seek a declaration requiring that an entirely new UF policy be

6

drafted as soon as possible, but only after obtaining the advice of recognized leading local

7

and national experts on the science and research related to modern policing and use of force

8
tactics, as well as substantial input from Plaintiffs and other patrol officers with direct
9
experience in appropriate use of force decision making and tactics in Seattle. In this regard,
10

11

Plaintiffs ask only that the City and SPD do in fact what they committed to do under the

12

Consent Decree, namely draft a UF Policy that is consistent with the constitutional

13

requirements of Graham.

14
D. Plaintiffs Seek Compensatory Damages.
15
Plaintiffs seek compensatory damages for lost time and wages, improper disciplinary action,
16

17

or any other personnel actions taken against Plaintiffs for violations ofthe UF Policy where

18

Plaintiffs acted based on constitutional standards and thus within the protection afforded us

19

by the Fourth Amendment. Plaintiffs believe it is only a matter of time before this complaint

20
will be required to be amended to add compensatory damage claims for an officer(s)
21
damages related to defending a lawsuit alleging that the officers use of force violated SPD
22

23

policy, even though the use of force was reasonable under the Constitution, or more

24

significantly, to add a damage claim for the serious injury or wrongful death of a patrol

25

officer, who was injured or whose life was taken when he or she hesitated or failed to use

26
appropriate force when responding to a dangerous call.

SPD Officers' § 1983 Complaint

41

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 42 of 80

E. Plaintiffs Seek Punitive Damages

1

Plaintiffs seek punitive damages from Defendants based on Defendants' misinformation

2
about, and ungrounded maligning of, the good work of SPD's patrol officers, as well as
3
Defendants consistent disregard for clearly established standards regarding use of force and
4

5

concomitant disregard for Plaintiffs' livelihood and safety. Plaintiffs also seek punitive

6

damages for City and departmental resources and funds redirected away from the needs of

7

patrol officers and wasted instead on the production of an unreasonable, unconstitutional UF

8
Policy, well beyond the scope of the original Memorandum of Understanding and placing at
9
unreasonable risk the lives of officers and the public.
10

11

F. Plaintiffs Seek Attorneys Fees

12

Plaintiffs currently represent themselves pro se because of the overwhelming costs related to

13

paying an attorney to represent them in this complex civil rights matter. We have had the

14
benefit of a DC-based former civil rights attorney to consult and assist us in researching and
15
developing these pleadings who has, so far, done so without compensation, recognizing the
16

17

importance of the issues and the limits on Plaintiffs' ability to pay for representation at this

18

time. Plaintiffs seek to obtain attorneys fees in this action to pay legal fees incurred so far,

19

20

21

22

23

24

25

26

SPD Officers' § 1983 Complaint

42

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 43 of 80

and hope that due to the availability of attorneys fees, we also will be able to obtain in-state

1

counsel to represent them in this court moving forward.

2

3
I declare under penalty of perjury that the foregoing is true and correct.
4

5

6

7

8

9

10

11

12

13

Date

14

15

16

17

11!~--

Date

18

19

20

21

22

Date

23

24

25

26

SPD Officers' § 1983 Complaint

43

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 44 of 80
LIST OF PLAINTIFFS

Officer Robert Mahoney, #6296 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Sjon Stevens, #6180 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Cliff Borjeson, #7597 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Christopher Myers, #5452 West Precinct 810 Virginia ST Seattle, WA 98101 (206) 684-8917
Officer Bridget Hillan, #5938 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Lance Basney, #5947 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Salvatore DiTusa, #5668 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Clarke D. Chase, #5709 North Precinct 10049 College Way N. Seattle WA, 98133 (206) 684-Q850
SPD Officers§ 1983 Complaint

Officer Joseph Stankovich, #6878 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Weldon C Boyland, #6635 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer John L. Farrar, #5922 North Precinct 10049 College Way N. Seattle, WA, 98133 (206) 684-0850
Officer Dale W. Umpleby, #4052 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Richard A. McAuliffe, #6403 North Precinct 10049 College Way N. Seattle WA, 98133 (206) 684-0850
Officer George Baseley, #5571 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Leon J. Towne, #6697 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer David M. Harrington, #6875 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 45 of 80
LIST OF PLAINTIFFS

Officer Henry Feldman, #7548 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Terry Whalen, #6879 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Gilles Montaron, #6382 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Robert Stevenson, #5859 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Joshua Goodwin, #7564 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ryan Kennard, #7555 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Nathan Lemberg, #7456 North Precinct 10049 .College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ryan Beck, #6898 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
SPD Officers § 1983 Complaint

Officer Jeff Mitchell, #6181 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Robert B. Brown, #6194 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ernest T. Hall, #4792 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Robert Burk, #5516 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Adam Beatty, #7453 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Tomas Trykar, #7616 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Brien Escalante, #7580 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Bryan Kennedy, #6768 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
2

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 46 of 80
LIST OF PLAINTIFFS

Officer Karen G. Pio, #6088 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Oscar Gardea, #6680 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Michael Gonzalez, #6412 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Steve Kim, #5955 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Joseph Mahar, #5992 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ennis Roberson, #6759 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Leroy Outlaw, #6854 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Kieran Barton, #7568 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
SPD Officers§ 1983 Complaint

Officer Jason Hoppers, #6863 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Jonathan Reese, #7533 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Eugene Schubeck, #6696 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Sean Hamlin, #5833 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Shannon Waldorf, #6950 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Brian Whicker, #7492 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Jeffrey Swenson, #7507 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Michael Spaulding, #7491 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
3

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 47 of 80
LIST OF PLAINTIFFS

..'

( ,'

-, - --

Officer Tabitha Sexton, #7430 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Steven Stone, #7540 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Liliya A. Nesteruk #7489 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Todd M. Nelson, #7358 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Timothy Jones, #6935 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Thomas Heller, #7427 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Michael Severance, #2866 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
SPD Officers § 1983 Complaint

Detective Timothy J Wear, #4900 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Detective Theresa Emerick, #5002 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Sgt. Ariel Vela, #4727 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Michael A. Larned, #6955 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Jeffery Johnson, #5845 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Derek B Norton, #6917 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Jason Dewey, #7426 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Brett Willet, #7615 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
4

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 48 of 80
LIST OF PLAINTIFFS

Officer David White, #6404 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Gretchen Hughes, #6237 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Trent Schroeder, #6900 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Audi A. Acuesta, #7417 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Steve Clark, #5987 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Steven L. Berg, #5834 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer John D. Smith, #6291 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Erik Johnson, #5116 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
SPD Officers§ 1983 Complaint

Officer Vernon Kelley, #6662 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850

Officer Jessica Taylor, #6273 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850

Officer Shelly San Miguel, #6910 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850

. - -

. -- _,- - .-. ....... ·--=

"·

-- __ _:_ ·::~. ;L

--•••..,., w "WI' WV I L..Je._J

Officer Christopher J. Anderson, #6609
North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Suzanne M. Parton, #5830 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Eric F. Whitehead, #7493 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Brian Hanson, #5954 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850

5

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 49 of 80
LIST OF PLAINTIFFS

Officer Alan Richards, #7497 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ron Willis, #6081 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer A. Sheheen, #4916 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Randall Higa, #5740 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Tim Owens, #6748 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Tyler Getts, #7537 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Adam Elias, #6726 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
SPD Officers § 1983 Complaint

Officer Jon Emerick, #4326 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Louis Chan, #7424 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Sgt. Paul Pendergrass, #4942 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Ted Cablayan, #6236 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Brian Kokesh, #6851 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer AJ Marks, #6179 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Sgt. Ron Martin, #5041 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
6

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 50 of 80
LIST OF PLAINTIFFS

Officer Rusty L. Leslie, #5209 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-Q850
Officer TJ San Miguel, #7506 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684-0850
Officer Jeffrey C. Page, #6845 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684~0850
Officer Tyler P. Speer, #7415 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684~0850
Officer Ryan Ellis, #7612 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684~0850
Officer William McCowan, #7607 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684~0850
Officer Austin Davis, #7617 North Precinct 10049 College Way N. Seattle, WA 98133 (206) 684~0850
Officer Jack H. Bailey, #5230 East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
SPD Officers § 1983 Complaint

Officer Christopher Coles, #6940 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Cynthia Whitlatch, #6229 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Randy R. Ellis, #5514
East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Jose Silva, #6919 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Alfred R.l Warner, #6162 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Michael R. Washington, #5143
East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
Officer Aaron Stoltz, #6073 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Sgt. Theodore G. Visaya, #5237 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
7

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 51 of 80
LIST OF PLAINTIFFS

Officer William K. Campbell, #6887 East Precinct 1519 12 Ave. Seattle, WA 98122 (206) 684-4800
Officer Donald D. Bolton, #5256 East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
Officer Steven E. Pomper, #5827 East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
Officer Ronald J. Campbell, #6693 East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
Officer Nina M. Jones, #7567 North Precinct 10049 College WY N Seattle, WA 98133 (206) 685-0850
Officer Anthony Jones Reynolds, #7585 South Precinct 3001 S. Myrtle ST Seattle, WA 98108 (206) 386-1850
Officer Richard Heintz, #4219 South West Precinct 2300 SW Webster ST Seattle, WA 98106 (206) 733-9800
Officer Lori K. Aagard, #5011 East Precinct 151912Ave. Seattle, WA 98122 (206) 684-4800
SPD Officers§ 1983 Complaint

Officer Curtis Gerry, #5823 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
Officer Adolph Torrescano, #4743 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
Officer Curt E. Wilson, #4505 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
Officer James G. Thomsen, #6738 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
Officer Richard W. Pruitt, #5346 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
Detective Donald L. Waters, #6287 SPD Range 11 030 E Marginal WY S Tukwila, WA 98168 (206) 684-7470
8

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 52 of 80
LIST OF PLAINTIFFS
Officer Anthony J. Reynolds #7585 South Precinct 3001 S. Myrtle St Seattle, WA 98108 (206) 386-1850
Officer Richard Heintz #4219 Southwest Precinct 2300 SW Webster St Seattle, WA 98106 (206) 733-9800
Officer Jonard A. Legaspi #6231 SPD Range 11030 E Marginal Wy S Tukwila, WA 98168 (206) 684-7470
Officer Nina M. Jones #7567 North Precinct 10049 College Wy N Seattle, WA 98133 (206) 684-0850

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 53 of 80 Date

Officer

Date

Officer

Date

~~

~LARK (}-\l-\fE

Officer

Date

Officer

Date

Officer

Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 54 of 80

Officer

Officer
_/'~~e·"
r ~l:d_/CO:f 6'41JtsLt'
Officer

6Y03
-.5)"7/_

~r-~

c.J, Leo J.J

To u:J,c../J!...

Officer

Date
I· 3o ·A/
Date
¢glr
Date
7 7
Date

Officer l~
1/tut..y1 {upv??Mfll
Officer
w -<j_ (..CI\;._.~- ---7~zi12 't wMLf:!L'\) Officer
SPD Patrol Officers § 1983 Complaint

Date
1- 3o-t '-\
Date
Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 55 of 80

Officer

l.t17
Date

~

~~2

liARS ll7otv1Yth,..t

'

Officer

"-'
·

bate

Officer

I . ~ · l'f
Date

-::::s'oeMl)A 6~
Officer
i

:15£1Zl\

Officer
!hlkL
fVl!-TitW
Officer

.~.

~

?(ya._, f3tzct(__

Co~.oz ~

Officer

Date
l-).o-/j
Date
Date
Date

SPD Patrol Officers§ 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 56 of 80

Officer

Date

f<asEI<.-r Cf3~ BR.o wf\J 6'l'l'f
Officer

~

I

Date

Officer
·-~~~-
l?o ~ Bv\2-lL ~~ (?
Officer
Jt__D€/~
ADAN\. D. B£AlJY # 7t1[3
Officer

Date
Date
/-3(L-/ 1t
Date

Officer

Date

6'1~ 1.-.t EtV c- s c/! 1- # /V 7E #=- ?SJro

Officer

Date

SPD Patrol Officers§ 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 57 of 80
Z-t-14
Date

f1o . O\ff~icer~ G .
0 Officer SCar

Date Date Dlte (

Officer ~~ yr.. I s~

Date

,--.:,_ .

-.

\~

\

~

J Officer f, (l,4_01 ) trttl1~ J

I.:J .

SPD Patrol Officers § 1983 Complaint

Dlte/
?_.)-,lj
Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 58 of 80
/

Officer

Date

Date

Date

:]01-tw )) .)rt t\=H ~(2_9( Off· icer ~~-~
e/l~k. JoftN~t!f/V :1Fs~16
Officer
·Y- ·/(=<?
V13.RNON J<~t,Lrqy

Date
Date
2-/-14-
Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

--------------
Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 59 of 80
j

Date

' ,

·.. r

(J-

~~ ,_,-~----.-.

, ......d1cer

/

L~-

Officer

Date

Officer

~7Lfq7

.

.

ALAN IZIC#AIZ.D5

Date
2--1-- 'i
Date
~-,, .I -1 L.\
Date
;;2- /- t'-/
Date

SPD Patrol Officers § 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 60 of 80 Date

Date

Date

Date

Date

Officer

Date

~~
fhc.~;vif "5C4"w$(/ch.. 6·~9(;

Officer

Date

SPD Patrol Officers§ 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 61 of 80

Officer

Date

Officer

Date

Officer

Date

Officer

Date

Officer

Date

Officer

Date

Officer
SPD Patrol Officers § 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 62 of 80

-

. '

(

I

v L f

Date

~~
J n '"'""it'i> !) ""- . n....ll>.v ~ 1 .:5.
Officer

Date

1'-'.b'\'\.O-C, 1-/(,1.1~
~~it-r;y~!l::
Officer
.>1J~dgJ_ ~~
/V11CH/i£t. ~VEMA/Cl::.
Officer

~-Jt., c;- 4Je-
7lme.r.LW J LJE":fJ fl.
Officer

!1. ~7"tJ

~.-G~. ~· CA.L-
Ther.-r!! ~--- f:- ""e;- ~-U:_ '*' 5ooz....
Officer

Date
Date
~~
Date
Date·
Date

SPD Patrol Officers§ 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 63 of 80

~·

&It([\ Whic.KtC -;\74DJd

Officer

Date

Officer
Officer
_,
Officer

#7¥?/
.. ~'

Date Date

Officer

Date·

Officer
SPD Patrol Officers§ 1983 Complaint

Date
o2 ./ 3 Lo2 o/</
Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 64 of 80
. ~I
Date

-- -- .. Officer t' -

Date
)-I b. ~~
Date
' Date
Date·

Officer

Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 65 of 80

Officer

y 2- {0-,
Date

Officer ·

Date

Officer

Date

Officer

Date

Officer

Date·

Officer

Date

Officer
SPD Patrol Officers § 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 66 of 80
/"' ,3()- 2 o/)1
·I
Date

---rr;:..j ~ · 6 7<-f ~
Officer T'"W'- Ow t:Us .

/-_5'R-L,/'/
Date
Date

Urr1cer .

Date

- ~/

Officer ----Aj(£f2_

Date

Date

SPD Patrol Officers§ 1983 Complaint

Date

/ Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 67 of 80

Officer

Date

Officer

__ """'

, .... _..

I
1
Date

Officer

Date

Officer

Date

;6~ --~---

~~AN KoK6SH: -ILbBS"l

Officer

Date

Officer

Date

~a

~ ~A/.44 d~p

Officer

Date

SPD Patrol Officers§ 1983 Complaint

;?~ ~ Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 68 of 80

-:::lAc~ /SA~J-FY #_ff;;L?o

Officer

Date

!1-.~~,
f2H£./S'TOff-t~/L &t.t;;;S:: #6ftj(}
Officer
G----r:zr== ~· . .
. C'f'1111ltt t<J~~JdcA .btv_/
Officer

~,
Date
t II
Date

Officer .

Date

g.G?

=-1,~ ·S(L\l't\= :tt (a q [ ~

Officer

Date

Officer

SPD Patrol Officers§. 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 69 of 80
~.

a&rry ~£'{ tte

t-38--IY

Officer

Date

¢-ltql

1:Y ~A-N tvU6uEL

Officer

Date

Dlte l
. 1/30/l~
Date

Officer

Date

w-, \t ,'a.- M '-t~.d.WAIV ~7,07

Officer

Date

Officer

1 js o /1'-1
Date

SPD Patrol Officers § 1983 Complaint

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 70 of 80

Officer

Date

Officer

Date

Date

Officer

Date

Officer

Date

Officer

Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 71 of 80

Officer Officer Officer Officer Officer Officer
SPD Patrol Officers § 1983 Complaint

Date Date Date
Date Date· Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 72 of 80

Officer Officer Officer Officer Officer Officer
SPD Patrol Officers § 1983 Complaint

Date Date Date
Date Date· Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 73 of 80 Date Date Date

/7Jrt/~

az-zy:..u;L

Orflcer j?lt'f/A,tiJ_ vJ, ;O,eu-IT~ ~7~ Date

Officer

Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 74 of 80

------ ~p~ G. vt~&.<A '?7:>7 ·. ---~-~~SJ~/1.~--'-l\----

officer .

.

Date

4:th
. t,urt.j,$/f?r\. ~- C~trn/'&:..~ tffJ-'

Officer

Date

·~
bo ~ ,.J.q. 1... ~ • :Gt::1.L:-rv.V

-;:; ::2 !'"~

Officer

Date

Officer

Date·

Officer

Date

Officer
SPD Patrol Officers§ 1983 Complaint

Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 75 of 80

Officer Officer Officer Officer Officer
SPD Patrol Officers§ 1983 Complaint

Date Date Date
Date Date· Date

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 76 of 80

I
Officer

Date' I ·

Officer

Date

Officer

Date

Officer .

Date

Officer

Date

Officer

Date·

Officer
SPD Patrol Officers§ 1983 Complaint

Date

I
Case 2:14-cv-00794-MJP(CuDt Hoecruem) ent 1 Filed 05/28/14 Page 77 of 80 I declare under penalty of perjury that the foregoing complaint is true and correct.

Officer

(Date)

Precinct ~v-J/f, I

(Cut Here)
I d~~lare underpenalty of perjury that the foregoing complaint is true and correct..
Officer

· {PrintedN~e) • · ·

~~::~~i"'N@nt ~1<~-£~1 ·i?f ~c#,· ~tttJ ·~

.. -

\.

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 78 of 80
(Cut Here)
1declare under penalty ofpetjury that the foregoing complaint is true and correct.
Officer atf:z.~. - 6:?--cp I (Date) (Printed Name)

(Cut Here)
I declare under penalty of pe1jury that the foregoing complaint is true and correct.

Officer ,~~ /~
tJ (Signature & Serial #)

12 Officer

}c 1--/ r:l ll.f2> /-f~l N"T'Z

(Printed Name)

Precinct

rtz s· (..-\.) t G I <?J C ·j

(Date)

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 79 of 80 LIST OF DEFENDANTS

Eric Holder, individually United States Attorney General U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 (202) 514-2001
Thomas E. Perez, individually Former Assistant Attorney General Civil Rights Division (CAD) U.S. Department of Justice Currently, U.S. Secretary of Labor 200 Constitution Ave., NW Washington, DC 20210 (202) 693-6000
Jonathan M. Smith, individually Chief Special Litigation Section, CAD U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-Q001 (202) 514-6255
Jocelyn Samuels, individually Acting Assistant Attorney General, CAD U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 (202) 514-4609
Emily A. Gunston, individually Trial Attorney Special Litigation Section, CAD U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 (202) 514-6255
Timothy D. Mygatt, individually Special Counsel Special Litigation Section,CRD U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 (202) 514-6255

Jenny A. Durkan, individually United States Attorney Western District of Washington U.S. Attorney's Office 700 Stewart St. Suite 5220 Seattle, Washington 98101 (206) 533-7970
City of Seattle, including Seattle Police Monitor Team, Seattle Police Department, and Seattle City Attorney's Office 600 4th Ave, Seattle, WA Seattle, WA 98104
Merrick Bobb, Seattle Monitor, individually and in his official capacity P.O. Box 27445 Los Angeles, CA 90027 (213) 623-5757
Peter Ehrlichman, Deputy Monitor, individually and in his official capacity P.O. Box 27445 Los Angeles, CA 90027 (213) 623-5757
Ronald Ward, Assistant Monitor, individually and in his official capacity P.O. Box 27445 Los Angeles, CA 90027 (213) 623-5757
Matthew Barge, Deputy Director, individually and in his official capacity P.O. Box 27445 Los Angeles, CA 90027 (213) 623-5757
Ed Murray, Mayor, individually and in his official capacity 600 4th Ave, 7th Floor Seattle, WA 98104 (206) 684-4000

SPD Patrol Officers § 1983 Complaint

1

Case 2:14-cv-00794-MJP Document 1 Filed 05/28/14 Page 80 of 80
LIST OF DEFENDANTS
Mike McGinn, individually Former Mayor, City of Seattle 8556 Dayton Ave N Seattle, WA 98103
Chief of Police, individually and in his or her official capacity Seattle Police Department 610 5th Avenue, Seattle, WA 98124-4986 206-265-5011
John Diaz, individually Former Chief, SPD Current address unknown
James Pugel, individually Former Interim Chief, SPD Current address unknown
Peter S. Holmes, City Attorney, individually and in his official capacity 600 4th Avenue, 4th Floor PO Box94769 Seattle, WA 98124-4769 (206) 684-8200

SPD Patrol Officers § 1983 Complaint

2

L_

 
 Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 1 of 34

The Honorable Marsha J. Pechman

UNITED STATES DISTRICT COURT FOR THE 1
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
2

3 Officers Robert Mahoney (#6269), Sjon

)

Stevens (#6180), Cliff Borjeson (#7597), )

4

Officer Christopher Myers (#5452), and 98 )

other Officers of the Seattle Police

)

Department named below.

)

5

)

Plaintiffs,

)

6

vs.

)

)

7 Eric H Holder, Jr., individually,

)

Attorney General of the United States,

)

8 Jenny Durkan, individually, Assistant

) )

United States Attorney for the Western

)

9 District of Washington,

)

)

10 The City of Seattle, including the Seattle )

Police Department,

)

11

)

Merrick Bobb, individually and in his

)

12 official capacity, Seattle Police Monitor, ) )

Ed Murray, individually and in his official )

13 capacity, Mayor, City of Seattle,

)

)

14 Peter Holmes, individually and in his

)

official capacity, Seattle’s City Attorney, )

15

)

Defendants

)

16

)

)

17

) )

)

18

)

)

19

Civil Action No.: No. C14-0794
CIVIL ACTION
FIRST AMENDED COMPLAINT UNDER 42 U.S.C. § 1983 AND 28 U.S.C. § 1331

20

I. JURISDICTION and PARTIES

21 1. Plaintiffs are sworn officers of the Seattle Police Department (SPD) and are

22

listed below. Plaintiffs bring to the court's attention that some officers

23

have been added to the list below who were not Plaintiffs in the original

complaint. Some Plaintiffs have been removed who were part of the original 24
complaint, and these officers are no longer Plaintiffs. 25
2. Plaintiff officers bring this action against the City of Seattle (City),
26 including the SPD, under 42 USC § 1983, alleging that Defendants have

27 intentionally and recklessly deprived Plaintiffs of the rights and

28

protections secured for them by the Constitution under color of policies and

1

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 2 of 34

The Honorable Marsha J. Pechman

practices of the City related to Plaintiffs' use of force. The City 1
promulgated a new use of force policy ("UF Policy") that unreasonably
2 restricts and burdens Plaintiffs' right to use force necessarily required to

3

protect and defend the public and officers from apparent danger in violation

4

of Plaintiffs' right of self-defense. This is a fundamental individual right

5

embedded in the Second, Fourth, Fifth, and Fourteenth Amendments. The

6

intended effect of the new UF Policy is to delay and greatly limit officers'

7

resort to a full range of force tools and techniques and to eliminate their

discretion. The real world effect is to induce a reluctance by patrol 8
officers to use appropriate and sufficient levels of force to control 9
dangerous suspects, thus putting officers, suspects, and the general public 10
at unnecessary and unreasonable risk of injury or death.
11 3. Plaintiffs also bring this action against the Mayor of Seattle (Mayor), Ed

12

Murray, individually and in his official capacity, under 42 USC § 1983,

13

based on his involvement in the implementation of the UF Policy.

14 4. Plaintiffs also bring this action against the Seattle Police Monitor

15

(Monitor), Merrick Bobb, individually and in his official capacity, under 42

16

USC § 1983, based on his control over the promulgation and implementation of

the unconstitutional UF Policy. 17
5. Plaintiffs also bring this action against Seattle's City Attorney (City 18
Attorney), Peter Holmes, under 42 USC § 1983, based on his involvement in
19 the promulgation and implementation of the unconstitutional UF Policy.

20 6. Plaintiffs bring this action, under 28 USC §1331, against the United States

21

Attorney General (AG), Eric Holder, individually. The United States

22

Department of Justice (DOJ) improperly required the new UF Policy as a

23

remedy for a fundamentally flawed finding, and it demanded that the new UF

24

Policy contain the unconstitutional provisions complained of below.

7. Plaintiffs also bring this action against the United States Attorney for the 25
Western District of Washington, Jenny Durkan, individually, under 28 USC § 26
1331, on the above basis and for her role in implementation of the 27
unconstitutional UF Policy.
28

2

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 3 of 34

The Honorable Marsha J. Pechman

II. BACKGROUND AND FACTUAL ALLEGATIONS, INCLUDING SPECIFIC PROVISIONS OF

1

THE NEW UF POLICY THAT BURDEN PLAINTIFFS' RIGHT OF SELF-DEFENSE

2 8. On December 17, 2013, Judge Robart, United States District Court Judge for the

3

Western District of Washington at Seattle, issued an order approving an alleged

"Consensus Use of Force Policy" (UF Policy) to govern SPD. Judge Robart approved 4

the policy as appropriate “for the present circumstances." It went into effect on 5
January 1, 2014. Officers were required to have read the new policy by that date,
6 and officers' conduct has been evaluated under the policy since that date.

7 9. The "circumstances" referred to by Judge Robart include an investigation opened in

8

March, 2011 by DOJ regarding whether or not SPD officers deprived individuals of

9

their constitutional rights by patterns and practices of discriminatory policing or

10

excessive use of force. After its investigation, DOJ was unable to make any

11

findings of discriminatory policing. However, DOJ did issue 'findings' including

that SPD patrol officers use force "in an unconstitutional manner nearly 20% of the 12

time." The City "dispute[d] the alleged patterns or practices of excessive force 13
alleged in DOJ's report," and the findings were discredited by an independent 14
analysis by a former DOJ statistician and current professor at Seattle University.
15 10. Nevertheless, Judge Robart approved the UF Policy as "the most appropriate remedy,"

16

noting DOJ's conclusion that SPD's former policy was too "vague" and left "too much

17

room for officer discretion." Judge Robart held that "comprehensive, clear and

18

specific policies" were thus needed. This contradicts long-standing Supreme Court

19

holdings that consistently acknowledge but reject concerns about 'vagueness' and

20

'troubling uncertainty,' holding that simplicity, flexibility, and deference to the

officer, instead, are essential for standards governing lawful police action, 21
especially regarding search and seizure, including force. 22
11. Judge Robart indicated that his role was to "insure" that the UF Policy was 23
constitutional. However, his cursory, one-and-one-half-page order contains no
24 substantive analysis of the UF Policy's constitutionality, particularly as it

25

relates to Plaintiffs' constitutional right to protect and defend the public and

26

themselves from threatening and dangerous behavior by suspects.

27 12. In July 2012, a Settlement Agreement and Memorandum of Understanding (Consent

28

Agreement) was entered into between the United States and the City. The City

3

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 4 of 34

The Honorable Marsha J. Pechman

agreed to develop a new UF policy consistent with the constitutional requirements 1
of Graham v. Connor. The stated goal of the parties was to create polices that
2 are constitutional and that "ensure public and officer safety." The City was

3

supposed to retain appropriate "flexibility" and have the "ability to develop local

4

and cost effective solutions."

5 13. The Consent Agreement also provided that the parties would select a federal monitor

6

to oversee implementation of the Consent Agreement. Defendant Merrick Bobb

7

(Monitor) is that monitor. To date, based on bills reported publicly, the City has

paid Mr. Bobb and his staff well over $1,300,000.00. The Monitor publicizes his 8
work regarding the Consent Decree on a website called the "Website of the Seattle 9
Police Monitor" (seattlemonitor.com). The Monitor maintains another website, 10
“Police Assessment Resource Center” (www.parc.info), that promotes the full range
11 of services Mr. Bobb will provide for a fee to promote and induce civilian

12

oversight and accountability. It is clear from the PARC website that his

13

organization has a zealous agenda to spread the message of police reform and to

14

steer police departments into adopting similarly written, highly proscriptive UF

15

policies. Mr. Bobb, who has no law enforcement training or experience as a police

16

officer, has made clear that his mission is to change fundamentally the nature of

police encounters, i.e. to severely restrict police officers' authority to exercise 17
discretion and use force. 18
14. On November 27, 2013, the Monitor submitted the UF Policy approved by Judge Robart,
19 with an accompanying Memorandum to the Court (UF Memorandum). The Monitor concedes

20 that it is not his role to write the new UF Policy and states unconvincingly that

21

in his role as Monitor he merely evaluated and gave deference to the alleged

22

recommendations of, and policy written by, the parties themselves (the City and

23

SPD).

24 15. Plaintiffs are primarily SPD patrol officers, or officers responsible for training
patrol officers. They are the individuals most significantly and immediately 25
affected by the new UF Policy and with the most knowledge, training and experience 26
regarding the UF situations facing patrol officers in Seattle. Moreover, many SPD 27
patrol officers are established and recognized experts in UF techniques, practices 28

4

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 5 of 34

The Honorable Marsha J. Pechman

and standards. However, no SPD officers concurrently engaged in street policing 1
duties or related training were involved in the development of the UF Policy.
2 16. Plaintiffs' supposed representative, the Seattle Police Officers’ Guild (SPOG),

3

though allegedly "consulted" by the Monitor, was not a party to, or at the table

4

for, significant decisions regarding the new UF Policy. DOJ and the Monitor choose

5

instead, inexplicably, to consult the "rank-and-file in Los Angeles" to determine

6

if the new policies "compromise[d] the safety of Seattle police officers and the

7

public they serve.” The Monitor also relied on so-called police experts on the

Monitoring Team, but it is clear from their background that it has been years since 8
they, if ever, made actual UF decisions in the line of duty. 9
17. Plaintiffs also allege that the new UF Policy is not the policy written by SPD 10
personnel who were tasked with developing it. Those personnel will testify that
11 the UF Policy they wrote was altered almost in its entirety and replaced with

12

specific language provided, and required, by the Monitor. This supports

13

Plaintiffs' contention that DOJ, in partnership with Mr. Bobb, intend to use

14

consent decrees in Seattle, as well as other jurisdictions, to re-write

15

longstanding constitutional law and principles intended to protect officer safety,

16

and eliminate reasonable police practices, with which they - from the comfort and

safety of their desks and with no experience facing dangerous threats - disagree or 17
find distasteful. 18
18. In the very last days of the process, select Plaintiffs were invited to submit
19 comments through SPOG and a departmental website called, Idea Scale. However, it

20 soon became clear that they were token invitations after the fact. Still,

21

Plaintiffs provided a thorough review of the draft and identified how and where the

22

draft policy conflicted with the realities facing patrol officers on the streets of

23

Seattle, and the protections afforded officers under the Constitution. These

24

concerns were ignored. Plaintiffs again attempted to communicate their concerns to

those involved in the process, before the draft became a final policy. Plaintiffs 25
were told, in effect: "This is what DOJ and the Monitor are telling SPD to do 26
regardless of whether or not it makes good sense or is good law. A federal judge 27
has approved it. There's nothing SPD can do about it. It's a 'done deal'." The
28 Monitor has continued to make clear that he will not find the City in compliance

5

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 6 of 34

The Honorable Marsha J. Pechman

under the Consent Decree until it establishes and implements the specific policy 1
demanded by the Monitor and DOJ.
2 19. To say, as the Monitor does repeatedly, that the Policy represents the "consensus"

3

and "unified" voice of the parties is inaccurate to the point of falsification. As

4

almost every other statement in the UF Memorandum acknowledges, there has been, and

5

Plaintiffs allege continues to be, a severe lack of consensus around the UF Policy.

6

Despite Plaintiffs' predominant role in the implementation of and impact from the

7

UF Policy, neither Plaintiffs nor SPOG, were even a party to the supposed

'contentious' and 'exhausting' negotiations the Monitor claims led to the final 8
'consensus.’ 9
20. Any appearance of 'consensus' is merely due to the fact that the Monitor ran 10
roughshod over any criticisms and that the various parties involved simply gave up.
11 This is reflected in the tone of the Monitor's semiannual reports, which are self-

12

serving, bullying, and dismissive. In a recent Seattle Times article, Mr. Bobb was

13

questioned about this lawsuit and officers' fears for their safety under the new

14

policy. He responded that "the changes have led to understandable anxiety over the

15

new policies," but he "likened the situation to going to an unfamiliar supermarket

16

and not knowing where to find the Cheerios." Plaintiffs allege this is indicative

of Mr. Bobb's complete disregard for officers' rights, officers' competence, and 17
officer and public safety as he pushes forward his agenda for a greatly diminished 18
Seattle police force. That Mr. Bobb would equate policing the city streets and
19 confronting the possibility everyday of having to use force to protect oneself or

20 others with grocery shopping for breakfast cereal is unconscionable, although it

21

does explain why he regards his lack of police experience as irrelevant in

22

performing his function.

23 21. The falsity as to the City's and SPD's alleged agreement with the new UF Policy has

24

only become more evident since Plaintiffs filed the original complaint. A number

of high-level City, SPD and Guild personnel have informed Plaintiffs in private 25
that they agree with the allegations in the original complaint. Nevertheless, 26
Plaintiffs have been told that the "politics" of the situation, and the City's 27
perceived inability to successfully fight DOJ, have left them unable to make
28 significant changes to the policy, even during the current "review" of the policy

6

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 7 of 34

The Honorable Marsha J. Pechman

built into the Consent Decree. This means that the City is now knowingly and 1
willingly playing politics with Plaintiffs' lives and the lives of the law-abiding 2
citizens of Seattle.
3 22. There is increasing evidence of significant problems wrought by the new UF Policy.

4

Plaintiffs allege that since they filed their original complaint, assaults against

5

SPD officers have increased significantly. Evidence of police injuries is

6

mounting. Officers are turning in their TASERS in large numbers - even though such

7

devices provide reasonable and effective tools when facing threatening behavior and

activity. Patrols officers will testify to an insidious new hesitation to respond 8
to calls for backup. First-responding officers, required by the UF Policy to delay 9
and avoid resorting to force, are left unreasonably vulnerable when backup fails to 10
come, or comes late, and these delay and avoidance tactics fail to bring the threat
11 under control in a timely and decisive manner.

12 23. Even as Plaintiffs were filing the original complaint asserting the significant

13

risks to public safety created by the new UF Policy, SPD itself was issuing a

14

report regarding the sharp decrease in proactive police work to investigate and

15

stop crime. Citizens are feeling vulnerable as the City's streets seem ever more

16

at the mercy of hostile and unstable persons. Patrol officers have retreated from

and avoided acting in response to clear threats to their own safety and that of the 17
public for fear of accusations of violating some provision of the UF Policy or new 18
expectations and practices regarding force. Not surprisingly, innocent bystanders
19 have expressed anger and concern at what they see as officers' failure to protect

20 innocent people. Citizens groups are demanding more enforcement resources to deal

21

with increasingly violent incidents throughout the City. This increased lawlessness

22

and disregard of police authority are the logical and inevitable consequences of a

23

policy that puts the interests of criminal suspects above the rights and interests

24

of citizens, officers, and the City itself.

24. Patrol officers are currently being subject to discipline under the new UF 25
Policy both for using too much force and for using too little force, thus 26
supporting Plaintiffs' allegation that the new policy demands 'perfection', 27
not reasonableness. This trend towards a misguided and impossible standard
28 of policing began with former Mayor McGinn's politically motivated promise,

7

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 8 of 34

The Honorable Marsha J. Pechman

to appease DOJ, that police officers using force "will get it right every 1
time." This trend has now become enshrined in the Department's new policies
2 and practices, as well as the attitudes of those sitting in judgment of

3

officers after the fact. Plaintiffs have taken the opportunity to observe

4

meetings of the Use of Force Review Board (UFRB), which, under the new

5

policy, is required for every so-called Type II and III UF incident. In

6

specific cases, patrol officers and detectives have been criticized and/or

7

recommended for disciplinary investigation, despite having had practical

safety reasons for their conduct due to the dynamic and dangerous nature of 8
the situation and the threat created by the suspect. The Monitor, who was 9
in attendance at a meeting attended by Plaintiffs, emphatically stated in 10
response to one of these cases: "Practical considerations never trump this
11 policy." This is a 180-degree contortion of officers' right to self-

12

defense and the Court's holdings that prioritize officer and public safety

13

over the mechanical application of legal standards and policies.

14 25. Plaintiffs will testify to being significantly less sure of how to police

15

under the new UF Policy than even when they first became police officers.

16

Officers will testify that the training received under the new UF Policy has

done nothing to make sense of the UF Policy's confusion and complications. 17
This is not surprising as officers cannot be trained to meet an impossible 18
standard. None of the training addresses the crucial situation that has
19 officers scratching their heads and fearing for their lives and the lives of

20 others, including suspects: what, if any, actions can officers realistically

21

take when confronted with threatening behavior by one of the protected

22

classes of people for whom the policy prohibits any reasonable force tools

23

short of deadly force? Moreover, the training materials recommended for

24

approval by the Monitor regarding suspects in behavioral crisis simply

entrench the existing problems with the UF Policy itself, demanding police 25
officers, in effect, become mental health professionals at the expense of 26
their duty and safety. Plaintiffs' role is, and should be, to assess the 27
threat and take reasonable actions to protect the public and themselves from
28 the risk of harm. It cannot be stated too strongly that a threat of danger

8

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 9 of 34

The Honorable Marsha J. Pechman

is a threat of danger, regardless of the suspect's mental health or other 1
impairments that may be contributing factors to the suspect's criminal 2
behavior!
3 26. All parties agree that SPD's UF incidents often involve people with mental

4

illness and/or under the influence of drugs or alcohol. DOJ and the Monitor

5

seem to believe this makes all of SPD's uses of force automatically suspect.

6

At the same time, however, DOJ concedes in its findings letters that police

7

officers have become the first responders in a shameful national crisis.

DOJ recognizes there is neither the will nor the resources to provide 8
appropriate treatment to the mentally ill. DOJ acknowledges the rotating 9
door through hospitals and jails that quickly and inevitably puts the 10
mentally ill worse off, and often on the street where there is ready access
11 to drugs, alcohol, and dangerous weapons, and where victims can quickly

12

become suspects engaged in activity that threatens the public's safety. The

13

dangerous, unpredictable, often violent, behavior that results is well

14

documented. Indeed, police officers, like the public they serve, are

15

regularly reminded of the deadly outcomes by a steady stream of horrifying

16

news stories of mentally ill people murdering people, often in large

numbers, here and across the country. The difference is that officers are 17
on the front line of a ticking time bomb. Policy and training that require 18
delay and hesitation are not preparing officers to act decisively when, as
19 will be inevitable, they find themselves quickly and unexpectedly with their

20 lives on the line.

21 27. Since Plaintiffs have filed this lawsuit, they have been accused of being

22

"fringe" or "rouge" cops and dismissed as reflexively 'anti-reform.’

23

Plaintiffs, however, represent a significant percentage of patrol officers,

24

whose job is to patrol the street, as well as a large number of training

personnel who take seriously their duty to help patrol officers come home 25
safely from each shift. Plaintiffs have consistently supported appropriate 26
reform, e.g. civilian oversight of the department by the Office of 27
Professional Accountability. Plaintiffs do not oppose reform related to UF,
28

9

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 10 of 34

The Honorable Marsha J. Pechman

but are asking that reform be consistent with officers' constitutional 1
rights as well as those of suspects.
2 28. There are many extremely troubling aspects of DOJ's investigation that

3

Plaintiffs do not challenge, because it is not their role or their rights

4

are not immediately at stake. These problems include DOJ's complete

5

overriding of local decision-making, the Monitor's use of the Consent Decree

6

to infiltrate and control almost every aspect of SPD, and the debilitating

7

strain on enforcement resources wrought by the new prioritization of UF

reporting and investigation paperwork requirements over the need to respond 8
to actual crime. Plaintiffs challenge the latter only to the extent that 9
the strain puts officers' and citizens' lives in danger by pulling an 10
inordinate number of officers off the street for long periods of time even
11 for relatively minor UF incidents.

12 29. This is the crux and basis of all Plaintiffs' allegations. Policy cannot

13

stand that restricts and burdens officers' right to defend themselves and

14

others from threats of serious harm. So-called, best practices that violate

15

the fundamental, individual rights of police officers have no place in the

16

law enforcement profession. Mr. Bobb and his organization PARC have long

been attempting to sell the notion that police departments are completely 17
free to adopt policies and practices that are more restrictive than the law. 18
Plaintiffs, however, contend that this freedom is not absolute. Rather, it
19 is limited to the point at which it begins to tread upon the fundamental,

20 individual constitutional rights of the officers subject to such a policy.

21

Plaintiffs assert that, although police officers are public servants, they

22

are not enslaved to the government or public. Therefore, despite being

23

representatives of the government and subject to reasonable policy

24

requirements and expectations, police officers also possess the same

constitutional right to self-defense as every other citizen. That any 25
'reasonable' governmental official or representative would attempt to argue 26
otherwise not only shocks the conscience, it is anathema to the Constitution 27
and the common law principles upon which it is founded.
28

10

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 11 of 34

The Honorable Marsha J. Pechman

30. The new UF Policy is found in Title 8 of the Seattle Police Manual, a copy 1
of which can be found on the Monitor's web site: www.seattlemonitor.com.
2 Throughout, the policy establishes rigid preconditions for the use of force

3

notwithstanding that the Court has specifically rejected such, holding that

4

all that matters is whether the officer's actions were reasonable.

5 31. For example, the UF Policy imposes special preconditions for the use of

6

deadly force (defined as use of firearms or any other means likely to cause

7

death or serious physical injury, §8.050). Under § 8.100.5: "Deadly force

may only be used in circumstances where threat of death or serious physical 8

injury to the officer or others is imminent. A danger is imminent when an 9

objectively reasonable officer would conclude that:

10 • A suspect is acting or threatening to cause death or serious physical

11

injury to the officer or others, and

• The suspect has the means or instrumentalities to do so, and

• The suspect has the opportunity and ability to use the

12

means or instrumentalities to cause death or serious physical injury."

13 32. Thus, while citizens are clearly allowed to act in self-defense based on

14

mistaken perceptions as long they had a reasonable belief in the 'apparent

15

danger' confronting them at the time of the incident, SPD officers now can

16

only use deadly force, without exception, if the threat IS (not "reasonably

appears") imminent, "AND" (not "or") the suspect IS (not "reasonably 17
appears") to be acting or threatening to cause death or serious physical 18
injury; "AND" (not "or") the suspect HAS (not "appears to have") the means
19 or instrumentalities to do so; AND (not "or") the subject HAS (not "appears

20 to have") the opportunity and ability to cause the harm. Under the UF

21

Policy, an officer must put his or her own life at risk if not absolutely

22

sure of the suspect's ability to kill or harm, or the officer can risk

23

losing his or her job by using reasonable, though mistaken, force in self-

24

defense. Such a draconian choice clearly burdens the constitutional right

of self-defense to the point of destruction. 25
33. As another example, the policy requires that force cannot be used against 26
handcuffed suspects without "exceptional circumstances," and then such use 27
of force will be "closely and critically reviewed." (§8.100.2) Specific
28 preconditions for particular categories or situations involving force limit

11

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 12 of 34

The Honorable Marsha J. Pechman

an officer’s options for reasonably responding to threatening and dangerous 1
behavior by suspects. All that matters is whether the officer's actions 2
were reasonable.
3 34. The right of self-defense means that the appearance of an immediate threat

4

justifies an immediate response with reasonable force. This means officers

5

must be permitted to avail themselves of the full range of reasonable force

6

options in the face of threatening behavior.

7 35. Yet core provisions authorizing force consistently restrict this. For
example, sections 8.000.4 and 8.100.1 categorically prohibit an officer from 8
using physical force unless, in addition to being reasonable, the force also 9
is necessary - which means the officer has first considered and eliminated 10
all apparent "reasonably effective alternatives." Such a requirement has 11
been specifically rejected as an impossible standard by the Ninth Circuit.
12 36. The policy also announces a wholly new requirement that, in addition to

13

being reasonable and necessary, the force used be "proportional" and

14

"proportionate" (§§ 8.000.4, 8.100.1). These extra-constitutional

15

requirements add precision and complexity to a standard that the Court

16

demands be simple, flexible, and reasonable, for the safety of officers and

the public. 17
37. Sec. 8.100.1 states that: "proportional force does not require officers to 18
use the same type or amount of force as the subject." While this appears to
19 allow an officer to retain discretion regarding the amount of force he or

20 she judges appropriate to the circumstances, any such deference is

21

consistently and overwhelmingly contradicted by operation of other parts of

22

the policy. For example, officer discretion is overridden by the policy's

23

requirement that use of force "shall" in all cases be "only...to the degree"

24

necessary (§§ 8.000.4, 8.100.1) Moreover, officers are required

unrealistically to "continually assess the situation" and then continually 25
"modulate the use of force" in response (§ 8.000.3), during incidents in 26
which the Court acknowledges objective reflection is an impractical and 27
unrealistic expectation.
28

12

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 13 of 34

The Honorable Marsha J. Pechman

38. The policy explicitly overrides officer discretion by limiting officers' 1
right to use certain levels and types of force - even in immediately
2 threatening situations - unless a variety of other factors, conditions,

3

qualifiers are, or are not, present. (§§ 8.100.2, 8.100.5, 8.200.5) The real

4

effect of the policy is to keep patrol officers constantly second-guessing

5

their actions, meanwhile remaining at a dangerous force deficit throughout

6

encounters with threatening suspects.

7 39. Sec.8.200.5, categorically and without exception, prohibits officers from

using less-lethal tools against five (5) vaguely defined, newly protected 8
classes of suspects (visibly pregnant, elderly, pre-adolescent, visibly 9
frail, or known or suspected to be disabled) absent active aggression, 10
unless deadly force is the only other available option. These five
11 categories are sufficiently broad, subjective and vague so as to encompass a

12

broad swath of individuals and to invite significant error in application

13

and improper second-guessing. Moreover, by operation of this rule, an

14

officer cannot use reasonable and effective force tools or techniques (i.e.

15

tools and techniques specifically intended to "disrupt subject's threatening

16

behavior" without the probability of death or serious physical injury) until

deadly force is justified. This makes no sense as a matter of public 17
policy. It also unreasonably burdens officers' right to defense of self and 18
others because it prohibits officers from responding with reasonable force
19 from the moment they arrive on the scene.

20 40. Sec. 8.200.5 categorically restricts an officer from using these less-lethal

21

tools and techniques against suspects in another nine (9) sets of

22

circumstances absent active aggression. This means the suspect can be

23

actually resisting, or actively noncompliant with an officer's commands - an

24

important potential indication of an intent to do harm to the officer - yet

the officer cannot, without exception, respond with less-lethal techniques 25
before considering and rejecting "any other fashion" of reasonable response, 26
e.g. the impossible "all other alternatives" standard. 27
41. The UF Policy consistently requires officers first to consider alternatives
28 to force. These are strict mandates: Sec 8.100.3 uses "shall" four separate

13

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 14 of 34

The Honorable Marsha J. Pechman

times (e.g. § 8.100.3 "officers shall use de-escalation tactics in order to 1
reduce the need for force;" see also § 8.000.2 "officers will de-escalate
2 conflict without using physical force.") The policy attempts to qualify

3

these rigid preconditions in order to make them seem reasonable, e.g.

4

stating that de-escalation is required "when safe and feasible." Such

5

qualifiers, however, work only to add complexity and precision to a policy

6

that is already dangerously unwieldy and virtually impossible to follow.

7

In § 8.100.3 alone, officers, at the same time as deciding if it is "safe,"

are required ("shall") to "slow down or stabilize the situation" (¶ 2), even 8
as they are conducting the required assessment ("shall consider") of the 9
suspect's mental health (¶ 3). Such information "shall then be balanced" 10
against "the facts of the incident" before deciding on the "most
11 appropriate," i.e. the one, 'best' tactical option (¶ 4). This requires

12

superhuman skills in any situation, but clearly is impossible under the

13

potentially dangerous, rapidly unfolding circumstances facing officers.

14 42. The qualifiers also disguise how the policy, taken together as a whole, is

15

out-and-out wrong. Specifically, officers are told to delay only "when time

16

and circumstances permit." In the very same provision, however, officers

are required to do the exact opposite and take unreasonable risks. This is 17
because officers are required to delay and not use force even though (1) 18
safety has already been compromised by the subject's lack of compliance
19 (i.e. under § 8.100.3 officers consider not if the subject is non-compliant,

20 but the reasons for the suspect's "lack of compliance"); and (2) there is an

21

immediate threat (“mitigating the existing immediacy of a threat” is the

22

assumed situation when these rules apply).

23 43. The UF Policy operates under a mistaken and dangerous assumption that

24

threatening situations always move in a linear, predictable direction. It

assumes that de-escalation will inevitably result in a reduction of the use 25
of force, because additional "time available" will "promote more rational 26
decision-making" by suspects, and allow "more officers or specialty units" 27
to respond to the scene (§ 8.100.3 para 5). This policy direction comes
28 directly from DOJ's findings letter where it criticizes SPD's training of

14

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 15 of 34

The Honorable Marsha J. Pechman

its officers to quickly "command and control" situations, proposing instead 1
that SPD require its officers to engage in a 'fair fight' with suspects.
2 Officers' right to self-defense, however, certainly does not depend on ill-

3

conceived assumptions that suspected criminals will fight fair, or behave

4

rationally, or that it's always better to wait for the "specialists."

5 44. The de-escalation provisions improperly mandate that an officer's UF

6

decisions take into account the suspect's mental and physical state, even

7

where the suspect is actively non-compliant (§ 8.100.3). Furthermore, the

Tool Specific provisions categorically tie an officer's hands in cases 8
involving five categories of actively threatening suspects based on physical 9
and/or mental conditions (§ 8.200.5). In essence, the policy categorically 10
defines as "excessive" force used against such persons even when they
11 present a serious threat. This is, of course, DOJ's and Mr. Bobb's real

12

goal. As DOJ states in its findings letters, "Assessing the appropriate

13

force in light of a subject's mental state is not just smart policing, it is

14

required." This position, however, is fundamentally in conflict with the

15

law of self-defense. The crucial factor in deciding whether or not

16

excessive force was used is the nature and immediacy of the threat. The

Constitution does not allow second-guessing of an officer’s reasonable 17
decisions, even if the officer failed to diagnose mental illness, because 18
requiring otherwise is impractical and dangerous.
19 45. Consider just one of the factors officers must "consider" and then "balance"

20 in order to make "the most appropriate," i.e. 'best', tactical decision:

21

whether or not the suspect is experiencing a "drug interaction." Police

22

officers are not medical or mental health professionals. It can take

23

doctors and mental health professionals months or years to figure out a

24

patient's diagnosis, drug interactions, and appropriate means of

communication, therapy, and treatment. Yet the UF Policy requires police 25
officers to make on-the-spot mental health evaluations and diagnoses under 26
circumstances that will, by definition (because this section of the policy 27
assumes the suspect's "lack of compliance"), be threatening, volatile, and
28 potentially dangerous or deadly. Such requirements are unreasonable and

15

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 16 of 34

The Honorable Marsha J. Pechman

interfere with an officers' ability to promptly take reasonable actions in 1
self-defense.
2 46. Throughout its findings letter, DOJ substitutes its judgments about erratic

3

and non-compliant behavior by suspects for the judgments of SPD patrol

4

officers on the scene and facing the threat. Behavior that DOJ

5

categorically defines - well after the fact and from the safety of its

6

offices - as the benign effects of mental illness (yelling expletives at

7

oneself, staring into space, bulging eyes, sweating, balled fists,

disregarding or refusing officer commands, taking off pieces of clothing), 8
can be understood, based on an officer's specialized training and real world 9
experience, as evidence of Excited Delirium, "boiling point," and/or pre10
attack indicators, i.e. evidence that a suspect's behavior is likely to
11 become violent and rapidly escalate his or her attack on officers or the

12

public. Officers' training and experience demonstrate a strong correlation

13

between mental illness and the use and abuse of drugs. Drug abuse, in turn,

14

is strongly correlated with violent behavior, and experience has shown that

15

such suspects do not respond to usual norms of behavior as suggested by

16

DOJ's de-escalation requirements. The right of self-defense does not permit

judges, DOJ, or the Monitor, looking back in perfect hindsight to second17
guess what patrol officers know from experience, and confront in the moment. 18
47. The Constitution and principles of self-defense demand that standards for UF
19 decision-making, like those for all seizures, be fluid, flexible, practical,

20 simple, clear, non-technical, and based on common sense, i.e. useful to the

21

officer in his or her work on the street, even if not necessarily the type

22

of neat, categorical rules preferred by legal professionals in the safety of

23

their chambers and offices. Overly proscriptive rules can never substitute

24

for flexibility and deference to experience, as there is nothing predictable

about what a patrol officer faces when he or she responds to a volatile 25
call, and every 911 call has the potential to turn harmful or deadly. Yet, 26
DOJ and the Monitor have forced the City into a policy that is complicated, 27
rigid, technical, impractical and allows for no mistakes. It is a policy
28 comprised of mandatory "shall"s and "shall not"s despite the fact that in

16

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 17 of 34

The Honorable Marsha J. Pechman

the Settlement Agreement, the parties agreed to UF policy and practices 1
"consistent with Graham v Connor," and "guided by" principles carefully
2 written with "should"s and "may"s so that any resulting policy would

3

maintain officer flexibility and discretion, as well as prioritize officer

4

safety and the need for "staying in control." (Settlement Agreement, Sec.

5

III. A. ¶. 70, pp.16 and 17; see also Sec. II, ¶. 58, p 14: Defining

6

"'shall' or 'will' to mean that the provision imposes a mandatory duty;

7

'should' does not indicate a mandatory duty.").

48. A policy cannot be useful to patrol officers facing dangers and making 8
split-second decisions when the required reading is 50 pages long! (23 9
pages of core principles, definitions, prohibitions, and specific rules for 10
each force tool; 17 pages of more specific definitions, and rules regarding
11 when and how officers should respond with and report use of force, and an

12

additional 10 pages regarding UF reports and review). There is also a new

13

(as yet incomplete) 50-page procedural manual that is required reading for

14

those who investigate use of force.

15 49. A Policy cannot be useful when it is blatantly contradictory from its

16

opening paragraph. Seattle police officers must accomplish their mission

with 'minimal reliance' on force, but at the same time, if they 'fail to use 17
timely and adequate force' they fail at their job. (§ 8.000.1). The only way 18
to reconcile these opposing goals is to assume the impossible: that police
19 officers can act in a precise and perfect fashion despite dangerous,

20 uncertain, and rapidly unfolding circumstances.

21 50. The policy deceptively states the totality of the circumstances standard

22

correctly (§ 8.100.1 ¶ 4), but then operates to entirely undermine that

23

standard. It promulgates a set of 12 separate, multi-layered, non-exclusive

24

factors that must be considered by the officer to determine reasonableness.

(Graham lists three.) It then requires officers to also apply two extra25
constitutional requirements (necessity and proportionality). It establishes 26
five situations in which force is categorically prohibited (Sec. 8.100.2). 27
In addition, the officer must consider another seven, non-exclusive factors
28

17

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 18 of 34

The Honorable Marsha J. Pechman

related to a suspect's mental and physical behavior that must be "balanced" 1
in an officer's decision-making process regarding force (§ 8.100.3 4).
2 51. If the policy is not to be an exercise in second-guessing, as it purports

3

not to be, these 26 factors, requirements and situations all must be

4

considered and evaluated, and the officer's response must be calibrated

5

accordingly, in the "split second" the officer has to make the decision

6

whether or not to use force in the face of threatening behavior. This is an

7

impossible task. Thus, these 26 factors, requirements, and situations are in

reality meant only to provide the means for unconstitutional, after-the8
fact, second-guessing of officer decision-making. 9
52. Moreover, this scheme replaces the longstanding reasonableness standard -10
one that grants officer's latitude and discretion based upon training,
11 experience, knowledge of the area and suspects, the uncertainty and fast-

12

pace of police encounters, and recognition that the officer's own life is

13

often on the line -- with a 'categorical,' pre-set, 'neat set' of rules that

14

officers should apply precisely, mechanically, and without need or room for

15

mistakes.

16 53. The clear, though incorrect, implication of the UF Policy is that any use of force
requires heightened justification beyond what would be a reasonable response to the 17
situation. Officers historically have been carefully trained to evaluate grounds 18
for reasonable suspicion and probable cause, but under the new UF Policy now 19
hesitate and delay in order to find some special, policy-specific grounds to
20 justify force - and run through all the categories of suspects granted special

21

protection under the policy to make sure force is not used against them - even as

22

they face a threat of serious harm. All this defies reason, common sense, and

23

officers' right of self-defense.

24 54. This multi-layered and multi-factored analysis addresses only the initial
question of whether or not force can be used. The officer must then 25
consider his or her prior conduct to determine the level of force he or she 26
is permitted to use (§ 8.000.3), and assess whether or not a suspect falls 27
into any of five categories before being permitted to use a certain level of 28
force (§ 8.200.5). After engaging in that fraught-with-potential-for-error

18

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 19 of 34

The Honorable Marsha J. Pechman

assessment, the officer must also know and factor in another 13 pages of 1
detailed rules regarding ten specific force tools and techniques (§§ 8.2002
POL-1-10).
3 55. The policy contains yet another complicated, mechanical scheme related to

4

the reporting and investigation of UF incidents. It defines four separate

5

categories of types of force (§ 8.050). In addition, it creates a four-part

6

classification of types of injuries (§ 8.050). Finally, it has the detailed

7

rules for ten specific force tools (§8.200-POL-1-10). Under § 8.300-POL-1,

the policy then establishes a complex system combining type of force, type 8
of injury, and type of force tool to create different categories of 9
reporting requirements for officers and screening requirements for 10
supervisors. The policy also requires that officers justify each and every
11 separate force application, see e.g., §§ 8.200-POL-1.11; 8.200-POL-3.9;

12

8.200-POL-5.6; 8.200-POL-6.5. Accordingly, officers are unreasonably

13

required to understand this complex system of definitions and reporting even

14

as they need to make UF decisions in the face of suspects' immediately

15

threatening behavior.

16 56. The factors that the officer uses to justify, and that supervisors,
commanders, and citizens use to review, use of force must be the same 17
factors the officer uses to actually make his force decisions on the scene. 18
If factors are too complicated and contradictory to facilitate reasonable 19
decisions in the heat of the moment, they cannot be used, after-the-fact, to
20 invalidate the officer's judgment and conduct as he or she faced an

21

immediate threat. Yet clearly this is what is mandated by the reporting and

22

review provisions of the policy.

23 57. The UF Policy requires a moment-by-moment analysis both of the officer's

24

conduct leading up to the UF, and a point-by-point, post-hoc critique of the

incident. These work together to invalidate the totality standard's focus 25
on the circumstances confronting the officer at the moment force was used. 26
58. Patrol officers are warned that "their conduct prior to the use of force" 27
can be a factor in determining whether or not the subsequent use of force
28 was necessary (ignoring that the constitutional test is "reasonableness")

19

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 20 of 34

The Honorable Marsha J. Pechman

(§ 8.000.3). They must also "continually" assess and modulate their use of 1
force. This means SPD officer's conduct will be measured as to whether at
2 each and every point he or she made the "most appropriate," i.e. 'best',

3

most correct, decision. If not, the officers' subsequent, reasonable use of

4

force is called into question. This conflicts with the reasonableness

5

standard because reconsideration will nearly always reveal that something

6

different could have been done. Even evidence of bad tactical decisions

7

leading up to a use of force does not deprive officers of the subsequent

right to use reasonable defensive force. 8
59. Under the UF Policy an officer's "display of a weapon" can be used against 9
the officer in evaluating any subsequent use of force. This unreasonably 10
burdens the right of self-defense and makes no sense to the reality of the
11 officer's experience. Officers routinely have their firearms out and at the

12

ready when, for example, they search and clear a building or approach

13

suspects during high-risk vehicle stops. In such cases, the threat is the

14

uncertainty, and officers need, and have the right, to be armed and ready

15

because they are always behind the reactionary curve of a potential suspect

16

who has decided to shoot, stab, slash, or smash as a means of resistance or

escape. 17
60. The UF Policy's requirement of moment-by-moment justification of precisely 18
the correct amount of force means that officers will feel compelled to de-
19 escalate "immediately" after using reasonable force without adequately

20 assessing whether or not the threat has in fact been eliminated. Evidence

21

from UF reports under the new UF Policy confirms officers are rushing to

22

immediate de-escalation without any assessment of whether the threat of

23

danger has been realistically eliminated.

24 61. Officers are required to "justify" and "report" each separate use of a less
lethal device during a single incident, including that "each subsequent 25
application of force is a separate application of force that must be 26
individually justified." (§§ 8.200-POL-1-10). Officers are also required 27
to document, and supervisors are required to review, in all but de minimis 28
force, each and every blow or application of force. (Sec. 8.300-POL-1,

20

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 21 of 34

The Honorable Marsha J. Pechman

8.300-POL-1.1) This creates an impermissible "divide and conquer" or 1
"segmented approach" to UF decision-making. Plaintiffs know from DOJ's
2 findings in its similar review of use of force by the Portland Police Bureau

3

that DOJ explicitly advocates a constitutionally flawed "segmented approach"

4

to use of force claims. DOJ and the Monitor demand that supervisors

5

consider, after-the-fact, "each point when an officer made a decision that

6

may have an effect on subsequent events," to allow "intensive," post-hoc

7

reviews in order to identify “flawed tactical decisions." Thus, in DOJ's

own words, it is admitting that it intends to promote UF reviews expressly 8
designed to lead to unconstitutional second-guessing. To properly analyze 9
conduct taken in self-defense, an officer's use of force must be reviewed as 10
a continuous event until the threat is decisively stopped, and an officer's
11 judgment and actions must be assessed cumulatively, i.e. as a whole picture

12

taken together, without imposing a sequencing of distinct events in order to

13

poke holes and find flaws or to invalidate specific elements of an officer's

14

cumulative judgment. The analysis must conform to the reality that officers

15

need to make split-second decisions under dangerous, rapidly unfolding

16

circumstances.

62. The policy divides force into qualitatively separate and distinct types 17
(e.g. § 8.050). The categorical force type is then applied mechanically for 18
purposes of both an officer's decision, and SPD's and the City's after-the-
19 fact analysis and review, to determine whether or not the officer should be

20 disciplined and/or criminally charged for the UF. Such a mechanical scheme

21

defining and categorizing levels of force is an attempt to impose a "force

22

continuum" on SPD officers. Requiring officers to pigeon-hole force types

23

before, during, and after their decision to use force, complicates and

24

hampers their ability to respond to the particular circumstances they face.

It also implies that mechanical decisions can always be made regarding when 25
and what force is reasonably required to meet a suspect's threatening 26
behavior and/or resistance. Plaintiffs know from experience this is never 27
true. Not surprisingly, continuums and mechanical schemes have been
28 discredited by law enforcement experts, even those in other departments of

21

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 22 of 34

The Honorable Marsha J. Pechman

the DOJ itself, as unconstitutional and promoting dangerous, ineffective 1
policing.
2 III. CONSTITUTIONAL CLAIMS

3

A. By Promulgating and Implementing the UF Policy, Defendants have

violated Plaintiffs' Constitutional Right of Self-Defense. 4

63. When a police officer is confronted with threatening behavior, he or she 5
has the right to take reasonable actions in defense of self and others.
6 Plaintiffs' right of self-defense is 'fundamental,' 'basic,' 'natural,'

7 'central,' and 'inherent.' For well over a century, the Court has held that

8

the right of self-defense existed prior to, and did not depend upon being

9

granted by, the Constitution. It is an individual right of "universal

10

application" that is in no way diminished because Plaintiffs have chosen to

11

be police officers. The right to use force in self-defense is an immediate

right based on the immediacy of the threat or danger. The right recognizes 12

a continuity of action such that officers can employ any and all reasonable 13
means until the perceived threat has been fully extinguished. An essential 14
attribute of this right is that it does not turn on the facts and
15 circumstances determined afterwards, but instead on whether or not there

16

were reasonable grounds for a person's belief that he or she was in imminent

17

or immediate danger at the moment of the incident. Detached reflection

18

cannot be demanded in the presence of an immediate threat of serious

19

physical harm. The above allegations provide multiple examples of the

20

specific ways the UF Policy violates these long-standing standards that

ensure the individual's right of self-defense. The UF Policy then not only 21

invites but demands unconstitutional second-guessing of UF decisions. 22

B. By Promulgating and Implementing the UF Policy, Defendants have

23

violated the Second Amendment.

24 64. The fundamental right to self-defense "pre-exists" and is broader than the
specific Second Amendment right to keep and bear arms, although it is 25
embodied in and is the central component of this right. Therefore, 26
Defendants actions in unreasonably restricting and burdening Plaintiffs 27
right of self-defense violate the Second Amendment. Moreover, the contours 28
of Plaintiffs' Second Amendment rights shape an appropriate understanding of

22

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 23 of 34

The Honorable Marsha J. Pechman

their broader constitutional right to self-defense. The right to keep and 1
bear arms is a right that is exercised individually and belongs to each and
2 every American citizen, regardless of profession, and is not limited to use

3

of an officer's firearm. The right has been understood not merely as the

4

right to use force after a confrontation has occurred but includes the right

5

to be prepared or ready in case of the possibility of a conflict or

6

confrontation with an assailant. Plaintiffs recognize that these rights are

7

not unlimited and can be subject to legitimate and appropriate regulation.

Nevertheless, the specific right to keep and bear arms is an 'enshrinement' 8
of a fundamental right to self-defense, which means that regulations cannot 9
burden such rights to the point of destruction, or render them practically 10
meaningless. As the above allegations make clear, decision-making under the
11 UF Policy is sufficiently proscribed so that police officers cannot act

12

decisively in the moment, based on an assessment of the threat, to bring

13

situations under control in order to protect themselves and others from

14

harm.

15 65. Plaintiffs know their job puts them in danger. They accept these risks in

16

large part because their job also allows them the privilege to serve and

protect the innocent. Plaintiffs are not arguing that the Constitution 17
grants them the right to dictate all the terms of a UF Policy or requires 18
the City to keep them safe at all times. The Constitution, however,
19 provides Plaintiffs the fundamental right of self-defense. The City cannot

20 make policy decisions and impose policy requirements that consistently and

21

inevitably place them at unnecessary and, therefore, unreasonable risk when

22

confronting dangerous suspects. Such policy choices have been taken off the

23

table by the law.

24

C. By Promulgating and Implementing the UF Policy, Defendants have

violated the Fourth Amendment.

25 66. The Supreme Court's Fourth Amendment jurisprudence is the core guide

26

regarding police interactions with persons engaged, or suspected of

27

engagement, in criminal activity. It contains clear and long-standing

28

standards and principles regarding seizures. Plaintiffs argue that when

23

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 24 of 34

The Honorable Marsha J. Pechman

they are unnecessarily required to face death or serious injury in such 1
encounters, because of the policies of their employer, they have been
2 intentionally and unreasonably seized in violation of their Fourth Amendment

3

rights. A policy with these identified dangers does not simply create the

4

random chance of harm to the officer, it makes it a virtual certainty due to

5

the nature of the job itself and the fact that the government requires them

6

to perform it under the flawed UF Policy each and every day.

7

D. By Promulgating and Implementing the UF Policy, Defendants have

violated the Plaintiffs' Right of Self-Defense as Embedded in the Fourth

Amendment. 8

67. Without finding a specific Fourth Amendment seizure of officers harmed because of 9
the UF Policy, long-standing Fourth Amendment case law still embeds and recognizes
10 a police officer's fundamental right of self-defense. Even as it balances

11 governments' versus citizens' interests, the Court finds a separate, more

12

fundamental and pre-existing right at play, viz. officers' right to take necessary

13

and reasonable steps to secure their own safety and that of bystanders when

14

conducting a seizure: in short, defense of self and others. For "certainly it

15

would be unreasonable to require that police officers take unnecessary risks in the

16

performance of their duties." The Court has made clear that officers do not have to

first take a chance on arguably less intrusive measures and 'hope for the best.' 17
As the Fourth Circuit put it succinctly, "The Constitution simply does not require 18
police to gamble with their lives in the face of a serious threat of harm." This is
19 not a hollow right to recover damages (or for officers' widows and children to

20 recover such) after they have been seriously or fatally injured. The

21

constitutional injury occurs regardless of whether or not a police officer happens

22

to be lucky enough to avoid, or to protect himself or herself from, actual harm in

23

the face of danger. Instead, the right of self-defense by necessity means that the

24

City cannot unreasonably restrict or burden the timing and/or range of reasonable

options officers may employ in protecting themselves and others. "It would be 25
clearly unreasonable to deny the officer the power to take necessary measures in 26
order to neutralize the threat of physical harm." 27
68. In determining whether or not there was unnecessary and therefore unreasonable risk
28 to the officer's safety, the Court examines whether or not the officer was

24

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 25 of 34

The Honorable Marsha J. Pechman

'justified,' in other words, reasonable, in his or her belief regarding the present 1
threat of danger. This is also the single most important factor in the objective
2 reasonableness standard under the Fourth Amendment. Thus, the totality of the

3

circumstances standard teaches us about officers' right of self-defense. The Court

4

has been careful not to permit Fourth Amendment standards that invite recklessness

5

or create perverse incentives for criminal suspects to disregard public safety any

6

further than they already do. The Court requires that every police encounter, from

7

social contact through the use of deadly force, be judged by one, consistent, long-

standing standard: reasonableness. There is no 'magic on/off switch' or 'rigid 8
preconditions' for when, or what type of, force is appropriate in a particular 9
case. "All that matters is whether the officer's actions were reasonable." For 10
the same reason, the Court rejects application of separate tracks or categorical
11 rules when evaluating an officer’s conduct in relation to a mentally ill suspect,

12

or one of any other category. Even as courts, including the Ninth Circuit,

13

complain of its "troubling degree of uncertainty," the Court consistently rejects

14

attempts at producing a neat set of rules. Instead, the actual, cumulative

15

information available to the officer on the scene, combined with his own experience

16

and specialized training, always trumps pre-set rules, categorical schemes, or use

of post-hoc 'divide and conquer’ analysis of the officer's decision. As the above 17
allegations demonstrate, the UF Policy, throughout, contradicts these standards of 18
reasonableness, flexibility and deference, instead restricting and burdening
19 Plaintiffs' right of self-defense.

20 E. By Promulgating and Implementing the UF Policy, Defendants have violated the Equal Protection Clause of the Fifth and Fourteenth Amendments.
21

69. The UF Policy rewards suspects' recklessness and disregard for the safety of others 22
as it consistently disadvantages officers in the face of volatile, unpredictable,
23 threatening behavior by suspects. The UF Policy thus places Plaintiffs at

24 considerable disadvantage compared to suspects and the general public as regards

25

their fundamental right to defend themselves from threats of deadly harm and

26

serious bodily injury. This denies Plaintiffs the equal protection of the law as

27

prohibited by the Fifth and Fourteenth Amendments. Moreover, Plaintiffs have

28

asserted a fundamental constitutional right of self-defense and Defendants have not

25

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 26 of 34

The Honorable Marsha J. Pechman

asserted a justification sufficient to satisfy the heightened scrutiny required by 1
equal protection law.

2 F. By Promulgating and Implementing the UF Policy, Defendants have violated

3

Plaintiffs' Substantive and Procedural Due Process under the Fifth and Fourteenth Amendments.

4 70. The Due Process Clause of the Fifth Amendment prohibits a federal agency, such as

5

DOJ, from depriving individuals of life, liberty, or property without the due

6

process of law. Similarly, the due process clause of the Fourteenth Amendment

7

prohibits state actors from doing the same. Clearly such rights are at stake here.

Plaintiffs allege that the UF Policy subjects them to unnecessary risk of death and 8
serious bodily injury. Plaintiffs believe we will face unreasonable disciplinary 9
actions, lawsuits, loss of employment, and the inability to obtain police 10
employment in other jurisdictions if and when we are accused of violating the new
11 UF Policy, even though our actions were reasonable under the law.

12 71. Substantive due process claims have been brought by suspects alleging excessive use

13

of force by the government in cases where the suspect cannot establish that there

14

has been an intentional seizure by the government. These cases, though brought by

15

suspects, reflect the underlying, embedded right of self-defense of the police

16

officer involved and, thus, shed light on the contours of Plaintiffs' right of

self-defense. Thus, for example, rules of due process, like the reasonableness 17
standard, cannot be subject to mechanical application and must take into account 18
that officers often will not have the luxury to make unhurried judgments.
19 Moreover, evaluation of officer conduct must consider that officers often need to

20 act quickly even as decision-making is complicated by pulls of competing

21

obligations, i.e. the need to act decisively and to show restraint at the same

22

moment. All of these realities are relevant to evaluating an officer's conduct

23

when his or her actions are taken in response to suspect's threatening behavior.

24

None of these realities are reflected in the UF Policy.

72. Due process however is not only for the benefit of suspects. Plaintiffs assert a 25
substantive due process violation of our own liberty and property interests. 26
Regardless of whether or not Plaintiffs can establish that the policy's 27
restrictions and burdens are a seizure under the Fourth Amendment, DOJ's and the
28 City's deliberate indifference to long-standing rights of self-defense, as they

26

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 27 of 34

The Honorable Marsha J. Pechman

force Plaintiffs to conform to a policy that blatantly violates those rights, is an 1
abuse of power that shocks the conscience. Defendants know that the policy is
2 fundamentally flawed and puts public safety and officers' lives in jeopardy, yet

3

they still refuse to change it because it would be 'too hard' politically. Other

4

Defendants show callous and aggressive disregard when confronted with evidence of

5

the threat to public and officer safety created by the UF Policy. It is

6

unconscionable and an abuse of authority when, in light of such evidence, those in

7

power are permitted to equate public safety concerns with buying "Cheerios" in a

"grocery store." 8
73. DOJ has imposed, and the City and SPD have acquiesced in, a fundamental rewriting 9
of nearly universal, long-standing, constitutionally-grounded rules of reasonable 10
police conduct based on a secretive and fundamentally flawed factual analysis.
11 This violates both substantive and procedural due process. DOJ repeatedly refused

12

to provide the City, SPD or the public with the data, methods, or analysis it used

13

to reach its conclusions. The little information DOJ did provide indicates that

14

its key finding comes from an extrapolation from a random sample of UF reports. It

15

is therefore nothing more than speculation. An independent and complete analysis

16

by researchers under the supervision of Matthew Hickman, a Professor at Seattle

University, and a former statistician for DOJ itself found that only 3.5% of cases 17
could be characterized as even "potentially" excessive. In addition, DOJ's finding 18
regarding the prevalence of excessive force directly conflicts with other key
19 findings by DOJ, such as, the “great majority” of Seattle’s police officers do not

20 use excessive force; the pattern of excessive force exists only for a very small

21

“subset” of officers; and that supervisory oversight should focus only on the “very

22

small number” of officers who use force frequently.

23 74. Defendants have imposed the new UF Policy without providing Plaintiffs any

24

meaningful opportunity to be heard, even though it is their safety and livelihood

that is most significantly and immediately affected by the policy changes. They 25
did so without meaningful consultation with or involvement from SPOG. They did so 26
notwithstanding that many SPD patrol officers are recognized experts in the field 27
of use of force standards and techniques. They ignored Plaintiffs' experience and
28 expertise, even as the constitutional standard at issue - whether the police

27

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 28 of 34

The Honorable Marsha J. Pechman

officers’ conduct was objectively reasonable - depends on an examination of the 1
specific knowledge, experience, training and circumstances facing those officers.
2 Most significantly, Defendants continued even more aggressively to cut Plaintiffs

3

out of the process as they raised the most serious of concerns: that the new policy

4

puts their lives and the lives of citizens in danger.

5

IV. HARM CAUSED AND RELIEF SOUGHT

6 75. The dangers and harm cited by Plaintiffs are real, not conjectural. The

7

constitutional right of self-defense includes the right not to be required to take

unnecessary and therefore unreasonable risks with Plaintiffs’ safety and the safety 8
of the public. The unnecessary and unreasonable risk required by the UF Policy is 9
itself the injury. It is unconstitutional to require Plaintiffs to "gamble with 10
their lives."
11 76. While the actual UF Policy has only been in place since January 2014, the standards

12

reflected in it have been imposed by DOJ since it issued its findings letter on

13

December 16, 2011, and quickly became the pattern and practice of what has been

14

required of patrol officers since that time.

15 77. Plaintiffs seek an immediate injunction against the implementation of SPD's UF

16

Policy that went into effect on January 1, 2014, and all related training. The

immediacy of this injunction is crucial in light of Plaintiffs' serious and 17
significant allegations regarding the unconstitutionality of the UF Policy, and the 18
dangers it creates to the safety of SPD patrol officers and the public. Moreover,
19 since the intrusion of DOJ in 2011, SPD patrol officers, including new officers at

20 the Academy (CJTC), have been improperly trained and conditioned to pause,

21

hesitate, overthink and under-react in the face of threats of danger. The longer

22

this training/conditioning is ingrained, the harder it will be to undo, and the

23

safety of officers and the public is further endangered for years, if not decades,

24

to come.

78. Plaintiffs further seek a declaratory judgment that the UF Policy is 25
unconstitutional and beyond repair. Plaintiffs seek a declaration requiring that 26
an entirely new UF policy be drafted as soon as possible, but only after obtaining 27
substantial input from Plaintiffs and other patrol officers with direct experience
28 in appropriate use of force decision-making and tactics in Seattle.

28

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 29 of 34

The Honorable Marsha J. Pechman

79. Plaintiffs seek compensatory damages for lost time and wages, improper disciplinary 1
action, or any other personnel actions taken against Plaintiffs for violations of
2 the UF Policy where Plaintiffs acted based on their constitutional rights of self-

3

defense. Plaintiffs seek punitive damages from Defendants based on Defendants'

4

callous disregard and belittling of the genuine safety needs of SPD's patrol

5

officers, as well as Defendants disregard for and rewriting of clearly established

6

standards regarding use of force and concomitant disregard for the public's and

7

Plaintiffs' safety. Plaintiffs also seek punitive damages for the resources and

funds redirected away from the safety of patrol officers and the public and wasted 8
instead on the production of an unreasonable, unconstitutional UF Policy. 9
80. Plaintiffs seek any other relief the court deems appropriate. 10
81. Plaintiffs currently represent themselves pro se because of the overwhelming costs
11 related to representation in a complex civil rights matter. Plaintiffs seek to

12

obtain attorneys’ fees under 42 USC § 1988, and hope that due to the availability

13

of attorneys fees they will be able to obtain in-state counsel to represent them in

14

this court moving forward.

15 82. Plaintiffs declare under penalty of perjury that the foregoing is true and correct.

16

17

18

Respectfully submitted,

Dated this August 27, 2014

19 By: s/ Sjon Stevens

Sjon Stevens (#6180)

20

PO Box 25274

Seattle, WA 98165

21

ufcomplaint@hotmail.com

tel: (206) 684-0850 22

23

24 By: s/ Robert Mahoney By: s/ Cliff Borjeson
25 By: s/ Bridget Hillan By: s/ Lance Basney
26 By: s/ Salvatore DiTusa By: s/ Clarke D. Chase By: s/ Joseph Stankovitch
27 By: s/ Weldon C. Boyland By: s/ John L. Farrar
28 By: s/ Dale W. Umpleby By: s/ Richard A. McAuliffe

29

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 30 of 34

By: s/ George Baseley

1 By: s/ Leon J. Towne

By: s/ David M. Harrington

2 By: s/ Henry Feldman By: s/ Terry Whalen

3

By: s/ Gilles Montaron By: s/ Robert Stevenson

By: s/ Joshua Goodwin 4 By: s/ Ryan Kennard

By: s/ Nathan Lemberg

5 By: s/ Jeff Mitchell

By: s/ Robert B. Brown

6 By: s/ Ernest T. Hall By: s/ Robert Burk

7 By: s/ Adam Beatty By: s/ Tomas Trykar

By: s/ Brien Escalante 8 By: s/ Karen G. Pio

By: s/ Michael Gonzalez 9 By: s/ Steve Kim

By: s/ Ennis Roberson

10 By: s/ Leroy Outlaw

By: s/ Kieran Barton

11 By: s/ Jonathan Reese By: s/ Eugene Schubeck

By: s/ Sean Hamlin 12 By: s/ Shannon Waldorf

By: s/ Jeffrey Swenson 13 By: s/ Michael Spaulding

By: s/ Tabitha Sexton

14 By: s/ Steven Stone

By: s/ Liliya A. Nesteruk

15 By: s/ Todd M. Nelson By: s/ Timothy Jones

16

By: s/ Timothy J. Wear By: s/ Theresa Emerick

By: s/ Ariel Vela 17 By: s/ Michael A. Larned

By: s/ Jeffery Johnson

18 By: s/ Derek B. Norton

By: s/ Jason Dewey

19 By: s/ Brett Willet By: s/ David White

20 By: s/ Gretchen Hughes By: s/ Trent Schroeder

By: s/ Audi A. Acuesta 21 By: s/ Steve Clark

By: s/ Steven L. Berg

22 By: s/ Erik Johnson

By: s/ Vernon Kelley

23 By: s/ Shelley San Miguel

By: s/ Christopher J. Anderson

24 By: s/ Suzanne M. Parton By: s/ Eric F. Whitehead

By: s/ Alan Richards 25 By: s/ Ron Willis

By: s/ A. Sheheen 26 By: s/ Randall Higa

By: s/ Tim Owens

27 By: s/ Tyler Getts

By: s/ Adam Elias

28 By: s/ Jon Emerick By: s/ Louis Chan

The Honorable Marsha J. Pechman

30

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 31 of 34

By: s/ Paul Pendergrass

1 By: s/ AJ Marks

By: s/ Ron Martin

2 By: s/ Rusty L. Leslie By: s/ TJ San Miguel

3

By: s/ Jeffrey C. Page By: s/ Ryan Ellis

By: s/ Austin Davis 4 By: s/ Nina M. Jones

By: s/ David Fitzgerald

5

6 Sjon Stevens (#6180)

Robert Mahoney (#6296)

7 Cliff Borjeson (#7597) Christopher Myers (#5452)

8

Bridget Hillan (#5938) Lance Basney (#5947)

Salvatore DiTusa (#5668) 9 Clarke D. Chase (#5709)

Joseph Stankovitch (#6878)

10 Weldon C. Boyland (#6635)

John L. Farrar (#5922)

11 Dale W. Umpleby (#4052)

Richard A. McAuliffe (#6403)

12 George Baseley (#5571) Leon J. Towne (#6697)

David M. Harrington (#6875) 13 Henry Feldman (#7548)

Terry Whalen (#6879) 14 Gilles Montaron (#6382)

Robert Stevenson (#5859)

15 Joshua Goodwin (#7564)

Ryan Kennard (#7555)

16 Nathan Lemberg (#7456) Jeff Mitchell (#6181)

17

Robert B. Brown (#6194) Ernest T. Hall (#4792)

Robert Burk (#5516) 18 Adam Beatty (#7453)

Thomas Trykar (#7616)

19 Brien Escalante (#7580)

Karen G. Pio (#6088)

20 Michael Gonzalez (#6412) Steve Kim (#5955)

21

Ennis Roberson (#6759) Leroy Outlaw (#6854)

Kieran Barton (#7568) 22 Jonathan Reese (#7533)

Eugene Schubeck (#6696)

23 Sean Hamlin (#5833)

Shannon Waldorf (#6950)

24 Jeffrey Swenson (#7507)

Michael Spaulding (#7491)

25 Tabitha Sexton (#7430) Steven Stone (#7540)

Liliya A. Nesteruk (#7489) 26 Todd M. Nelson (#7358)

Timothy Jones (#6935) 27 Timothy J. Wear (#4900)

Theresa Emerick (#5002)

28 Ariel Vela (#4727)

Michael A. Larned (#6955)

The Honorable Marsha J. Pechman

31

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 32 of 34

Jeffery Johnson (#5845)

1 Derek B. Norton (#6917)

Jason Dewey (#7426)

2 Brett Willet (#7615) David White (#6404)

3

Gretchen Hughes (#6237) Trent Schroeder (#6900)

Audi A. Acuesta (#7417) 4 Steve Clark (#5987)

Steven L. Berg (#5834)

5 Erik Johnson (#5116)

Vernon Kelley (#6662)

6 Shelley San Miguel (#6910) Christopher J. Anderson (#6609)

7 Suzanne M. Parton (#5830) Eric F. Whitehead (#7493)

Alan Richards (#7497) 8 Ron Willis (#6081)

A. Sheheen (#4916)

9 Randall Higa (#5740)

Tim Owens (#6748)

10 Tyler Getts (#7537)

Adam Elias (#6726)

11 Jon Emerick (#4326) Louis Chan (#7424)

Paul Pendergrass (#4942) 12 AJ Marks (#6179)

Ron Martin (#5041)

13 Rusty L. Leslie (#5209)

TJ San Miguel (#7506)

14 Jeffrey C. Page (#6845)

Ryan Ellis (#7612)

15 Austin Davis (#7617) David Fitzgerald (#6152)

16 Seattle Police Department

North Precinct 17 10049 College Way N.

Seattle, WA 98133

18 Telephone: (206) 684-0850

Email: ufcomplaint@hotmail.com

19

Pro se Plaintiffs

20 By: s/ Christopher Myers
21 By: s/ Joseph A. Maccarron

22 Christopher Myers (##5452)

Sgt. Joseph A. Maccarron

23 Seattle Police Department

24 West Precinct 810 Virginia St.

Seattle, WA 98101 25 Telephone: (206) 684-8917

email: ufcomplaint@hotmail.com

26

Pro se Plaintiffs

27

28 By: s/ Jack C. Bailey By: s/ Alfred R. Warner

The Honorable Marsha J. Pechman

32

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 33 of 34

By: s/ Michael R. Washington 1 By: s/ Aaron Stoltz
By: s/ Theodore G. Visaya

2 Jack C. Bailey (#5230)

3

Alfred R. I. Warner (#6162) Michael R. Washington (#5143)

Aaron Stoltz (#6073) 4 Theodore G. Visaya (#5237)

5 Seattle Police Department East Precinct
6 1519 12th Avenue Seattle, WA 98122
7 Telephone: (206) 684-4800 email: ufcomplaint@hotmail.com Pro se Plaintiffs
8

9
By: s/ Anthony James Reynolds 10
Anthony James Reynolds (#7585)

11 Seattle Police Department

South Precinct 12 3001 S. Nyrtle St.

Seattle, WA 98108

13 Telephone: (206) 386-1850

email: ufcomplaint@hotmail.com

14

Pro se Plaintiff

15

16 By: s/ Richard Heintz

Richard Heintz (#4219) 17

Seattle Police Department

18 South West Precinct

2300 SW Webster St.

19 Seattle, WA 98106 Telephone: (206) 733-9800

20

Pro se Plaintiff

21
By: s/ Donald L. Waters 22
Donald L. Waters (#6287) 23
Seattle Police Department Gang Unit 24 610 Fifth Avenue
Seattle, WA 98124-4986 email: ufcomplaint@hotmail.com 25

26
By: s/ Curtis Gerry 27 By: s/ Adolph Torrescano
By: s/ Curt E. Wilson 28 By: s/ James G. Thomsen
By: s/ Richard W. Pruitt

The Honorable Marsha J. Pechman

33

Case 2:14-cv-00794-MJP Document 13 Filed 08/27/14 Page 34 of 34

By: s/ Jonard A. Legaspi

1

Curtis Gerry (#5823)

2 Adolph Torrescano (#4743) Curt E. Wilson (#4505)

3

James G. Thomsen (#6738) Richard W. Pruitt (#5346)

Jonard A. Legaspi (#6231) 4

Seattle Police Department Range

5 11030 E. Marginal Way S.

Tukwila, WA 98168

6 Telephone: (206) 684-7470 email: ufcomplaint@hotmail.com

7

Pro se Plaintiffs

8
By: s/ Rich Peterson 9
Rich Peterson (#6239)
10 Seattle Police Department
11 Education and Training Unit Park 90/5 2203 Airport Way S.
12 Seattle, WA email: ufcomplaint@hotmail.com
13
Pro se Plaintiff 14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

The Honorable Marsha J. Pechman

34

 
 Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 1 of 15

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

9

AT SEATTLE

10 ROBERT MAHONEY et al.,

CASE NO. C14-794 MJP

11

Plaintiffs,

ORDER ON MOTIONS TO DISMISS

12

v.

13 ERIC HOLDER et al.,

14

Defendants.

15

16

THIS MATTER comes before the Court on Defendant Merrick Bobb’s Motion to

17 Dismiss on quasi-judicial immunity grounds (Dkt. No. 19) and Defendants City of Seattle,

18 Mayor Ed Murray, and City Attorney Peter Holmes’s Motion to Dismiss for failure to state a

19 claim (Dkt. No. 25). Certain represented Plaintiffs responded to the Motions, while the

20 remaining pro se Plaintiffs failed to respond. Having reviewed the motions, the Represented

21 Plaintiffs’ Responses (Dkt. Nos. 36, 59), Defendant Bobb’s Reply (Dkt. No. 54), the City

22 Defendants’ Reply (Dkt. No. 62), and all related papers, the Court hereby GRANTS both

23 Motions and DISMISSES the case with prejudice.

24

ORDER ON MOTIONS TO DISMISS- 1

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 2 of 15

1

Summary

2

In this case, certain officers with the Seattle Police Department are challenging a Use of

3 Force Policy adopted in response to an earlier lawsuit filed against the City of Seattle by the

4 United States Department of Justice. In the earlier lawsuit, the Department of Justice claimed

5 that the Seattle Police Department engaged in a pattern or practice of excessive use of force. As a

6 condition of settlement, the City of Seattle agreed to create new policies aimed at preventing this

7 pattern from repeating. One of the key players in creating the Use of Force Policy was Merrick

8 Bobb, a “Monitor” appointed as an agent of the court to assist in the policy-drafting process,

9 among other tasks. Although many groups gave feedback as the Use of Force Policy was being

10 developed, individual officers of the Seattle Police Department were not a party to the lawsuit or

11 the ensuing negotiations.

12

The officers now argue the new Use of Force Policy violates their constitutional rights by

13 constraining their options in defending themselves against potentially dangerous suspects. They

14 also argue that the way the Use of Force Policy was drafted violates the Constitution. They ask

15 the Court to stop the implementation of the Use of Force Policy, to declare the Use of Force

16 Policy unconstitutional, and to award them money damages.

17

As the Court explains in greater detail below, the officers’ constitutional arguments are

18 not supported by the text of the Constitution or case law interpreting the Constitution. In

19 addition, the officers cannot sue the court-appointed Monitor Merrick Bobb because he has

20 “absolute immunity” from lawsuits relating to his actions assisting in the resolution of the earlier

21 lawsuit. This immunity is known as “quasi-judicial” because it is derived from the immunity

22 given to judges, and Merrick Bobb is entitled to it both because he was appointed as an agent of

23

24

ORDER ON MOTIONS TO DISMISS- 2

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 3 of 15

1 a judge and because he was engaged in activities that parallel those of a judge. Because the

2 officers’ case is not supported by the Constitution or case law, the Court dismisses the lawsuit.

3

Background

4

The Represented Plaintiffs and Plaintiffs representing themselves are police officers

5 employed by the Seattle Police Department (“SPD”) who have filed suit to challenge the Use of

6 Force Policy (“Policy”) adopted by the City of Seattle (“City”) pursuant to a consent decree and

7 settlement with the United States Department of Justice (“DOJ”). (Dkt. No. 13 at 3–4; see Case

8 No. C12-1282-JLR, United States v. City of Seattle.) In the first lawsuit, the Department of

9 Justice claimed that after “an extensive investigation of the Seattle Police Department [ . . .], the

10 United States [ ] determined that SPD engages in patterns or practices of using unlawful force

11 that systematically deny the people of Seattle their constitutional rights.” (Case No. C12-1282-

12 JLR, Compl. & DOJ Report, Dkt. No. 1 at 2, cited in Am. Compl., Dkt. No. 13 at 3.) The

13 settlement agreement and its central components, including the use of force policy it pledged to

14 produce, had the “goal of addressing the policies, procedures, training, and oversight that the

15 United States alleges contributed to a pattern or practice of constitutional violations.” (See Case

16 No. C12-1282-JLR, Joint Motion and Proposed Order for Approval of Settlement Agreement,

17 Dkt. No. 3 at 2–3, cited in Am. Compl., Dkt. No. 13 at 3–4; see also Settlement Agreement,

18 Ryan-Lang Decl., Dkt. No. 12-1 at 17–18, cited in Am. Compl. Dkt. No. 13 at 3–4; id.,

19 Memorandum Submitting Use of Force Policy, Dkt. No. 12-2 at 57–58, cited in Am. Compl.,

20 Dkt. No. 13 at 4.) The agreement included a plan for a court-appointed Monitor. (Dkt. No. 12-1

21 at 52–70; Dkt. No. 12-2 at 5–6.) According to the court-appointed Monitor when he submitted

22 the Policy to the court, the Policy was “calibrated to bring about Constitutional policing without

23

24

ORDER ON MOTIONS TO DISMISS- 3

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 4 of 15

1 sacrificing the safety and well-being of police officers or the general public.” (Dkt. No. 12-2 at

2 58.)

3

Plaintiffs now allege the Policy is too solicitous of the rights of those being policed and

4 insufficiently concerned with the rights of those employed as police officers. (See Am. Compl.,

5 Dkt. No. 13 at 2.) Plaintiffs bring their claims under § 1983 and Bivens, alleging the creation and

6 implementation of the Policy violates their own Second and Fourth Amendment rights, their

7 “right of self-defense as embedded in the Fourth Amendment,” the Equal Protection Clause, and

8 substantive and procedural due process. (Id. at 22–28.) They seek a declaration that the Policy

9 infringes on their constitutional rights as well as injunctive relief and damages. (Id. at 28–29.)

10

In addition to the City, Mayor Ed Murray, and City Attorney Peter Holmes, Plaintiffs

11 filed suit against federal actors involved in the settlement agreement and formulation of the

12 Policy. One of those Defendants is Merrick Bobb, the court-appointed Monitor in the underlying

13 litigation. Plaintiffs allege that Mr. Bobb is liable for the constitutional errors they identify in the

14 Policy because he allegedly seized control over the drafting process and refused input from the

15 Seattle Police Department and its officers. (See Dkt. No. 13 at 5.)

16

The City Defendants now move to dismiss the Amended Complaint, arguing Plaintiffs’

17 allegations fail to state a claim under Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 25.)

18 Defendant Bobb also moves to dismiss on the grounds of quasi-judicial immunity. (Dkt. No. 19.)

19

Analysis

20 I. Legal Standards

21

A. Motion to Dismiss

22

To survive a motion to dismiss, a complaint must state a claim for relief that is plausible

23 on its face. Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Courts follow a

24

ORDER ON MOTIONS TO DISMISS- 4

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 5 of 15

1 two-step approach when deciding whether a complaint survives a 12(b)(6) motion. Id. at 678–79.

2 First, “a court must accept as true all of the allegations contained in a complaint” unless the

3 allegations are legal conclusions. Id. Second, the Court must decide whether the claim for relief

4 is plausible—a context-specific task. Id.

5

B. Evidence and Related Proceedings at the Motion to Dismiss Stage

6

Federal Rule of Evidence 201(b) provides that the Court “may judicially notice a fact that

7 is not subject to reasonable dispute because it . . . can be accurately and readily determined from

8 sources whose accuracy cannot reasonably be questioned.” Thus, the Court may take notice of

9 “documents [that] are not physically attached to the complaint . . . if the documents’ ‘authenticity

10 . . . is not contested’ and ‘the plaintiffs complaint necessarily relies’ on them.” Lee v. City of Los

11 Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citations omitted) (overruled on other grounds by

12 Galbraith v. County of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002)). The Court may

13 take judicial notice of “proceedings in other courts, both within and without the federal judicial

14 system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan, 508

15 F.3d 1212, 1225 (9th Cir. 2007). However, judicial notice may not extend to disputed facts stated

16 within public records. Lee, 307 F.3d at 690.

17 II. The Monitor and Quasi-Judicial Function

18

Defendant Bobb argues the claims against him must be dismissed because he has

19 absolute quasi-judicial immunity from suit in his role as Monitor. (Dkt. No. 19.) “Absolute

20 judicial immunity insulates judges from charges of erroneous acts or irregular action.” Burton v.

21 Infinity Capital Management, 753 F.3d 954, 959 (9th Cir. 2014) (quotation marks and citations

22 omitted). It “is not reserved solely for judges, but extends to nonjudicial officers for all claims

23 relating to the exercise of judicial functions.” Id. (quotation marks and citations omitted). “The

24

ORDER ON MOTIONS TO DISMISS- 5

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 6 of 15

1 proponent of a claim to absolute immunity bears the burden of establishing the justification for

2 such immunity.” Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 (1993). “To qualify for

3 absolute immunity, the function performed must be a judicial act with ‘a sufficiently close nexus

4 to the adjudicative process.’ However, ‘it is only when the judgment of an official other than a

5 judge involves the exercise of discretionary judgment that judicial immunity may be extended to

6 that nonjudicial officer.’” Burton, 753 F.3d at 960 (citations omitted). “To be protected, the

7 function performed must ‘involve the exercise of discretion in resolving disputes.’” Id. Among

8 the nonjudicial officers that have been extended quasi-judicial immunity are bankruptcy trustees,

9 id., and court-appointed special masters. Atkinson-Baker & Assocs., Inc. v. Kolts, 7 F.3d 1452,

10 1455 (9th Cir. 1993).

11

Plaintiffs acknowledge Mr. Bobb was appointed by the Court in the underlying litigation

12 to “oversee implementation of the Consent Agreement.” (Dkt. No. 13 at 4.) According to the

13 Order Approving Consensus Use of Force Policies, a document cited by Plaintiffs (Dkt. No. 13

14 at 3), “[t]he role of the court, and the Monitor who serves as an agent of the court, [was] not to

15 dictate policies to the SPD, but rather to insure that the Proposed Policies conform to the

16 requirements of the Consent Decree, the United States Constitution, and judicial decisions

17 interpreting the City’s constitutional obligations.” (Dkt. No. 12-2 at Ex. 8, p. 65.) Plaintiffs

18 allege that while Mr. Bobb agreed it was not his role to write the Policy (Dkt. No. 13 at 4, citing

19 the Memorandum, Dkt. No. 12-2 at Ex. 7), the Policy was “altered almost in its entirety and

20 replaced with specific language provided, and required, by the Monitor.” (Dkt. No. 13 at 5.)

21 According to Plaintiffs, this “language” was the outcome preferred by the DOJ as opposed to the

22 City. (See id. at 5, 27.) The Court must accept for the purpose of this motion that Mr. Bobb

23 seized control over the drafting process, implemented the DOJ’s preferred solutions, and refused

24

ORDER ON MOTIONS TO DISMISS- 6

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 7 of 15

1 input from other stakeholders such as officers of the Seattle Police Department. The question

2 remains whether these alleged acts deprived him of quasi-judicial immunity for his role in the

3 process.

4

Plaintiffs argue that because the Consent Decree did not grant the Monitor the power to

5 draft the Policy unilaterally, his actions were not “judicial.” (See Dkt. No. 36 at 6.) Plaintiffs

6 concede “judicial” acts have been defined by the Supreme Court to encompass “the function of

7 resolving disputes between parties, or of authoritatively adjudicating private rights.” (Id. at 5,

8 citing Antoine, 508 U.S. at 435–36.) It is clear that Mr. Bobb was appointed by the district court

9 to oversee formulation of a Policy which was both the product and the subject of an ongoing

10 “dispute between parties”—namely, the City of Seattle and the United States Department of

11 Justice. According to Plaintiffs, Mr. Bobb agreed with the DOJ’s preferred solutions and

12 disagreed with the outcome preferred by Plaintiffs (who were not formal parties to the litigation).

13 Still, this alleged course of action does not deprive his conduct of judicial character. Far from it:

14 judges are usually persuaded by one side as opposed to another as they adjudicate disputes in our

15 adversarial system. An outcome that favors one party is no less a “resolution” because it does not

16 please all stakeholders. Here, the Court agrees with Defendant Bobb that even if Mr. Bobb

17 engaged in the conduct Plaintiffs assign to him, he was engaged in an essential judicial function:

18 that of resolving a dispute between the parties to the City of Seattle litigation at the request of a

19 federal district court judge.

20

Furthermore, that function involved discretion. See Burton, 753 F.3d at 960. Plaintiffs do

21 not argue Mr. Bobb was constrained to take a single course of action with respect to the drafting

22 of the policy, in the manner that a court reporter must produce a verbatim transcript of court

23 proceedings. Cf. Antoine, 508 U.S. at 436–37 (holding that court reporters are not entitled to

24

ORDER ON MOTIONS TO DISMISS- 7

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 8 of 15

1 quasi-judicial immunity because they are afforded no discretion in carrying out their duties).

2 Rather, Plaintiffs argue that he formulated a policy that contained terms that favored one side in

3 the dispute (Dkt. No. 36 at 4)—in other words, that he used his court-endowed discretion to

4 reach a result Plaintiffs do not agree with.

5

Because Defendant Bobb exercised discretion in resolving a dispute at the request of a

6 district judge, he is entitled to absolute quasi-judicial immunity from suit and the charges against

7 him must be dismissed.

8 III. City’s Substantive Motion to Dismiss

9

The City Defendants move to dismiss on the basis that Plaintiffs’ allegations fail to state

10 a claim under the Second or Fourth Amendments, the Equal Protection Clause, or the Due

11 Process Clause. (Dkt. No. 25.)

12

A. Second Amendment

13

The City Defendants argue the Policy does not violate Plaintiffs’ Second Amendment

14 rights because while the Second Amendment protects an individual’s right to bear arms, the

15 Second Amendment does not provide that individuals have a right to use a firearm in any

16 particular way. (Dkt. No. 25 at 7.) Plaintiffs contend that the Second Amendment codified a

17 preexisting right to self-defense, and the Policy burdens that right. (Dkt. No. 59 at 4.)

18

The Ninth Circuit has adopted a two-step test for analysis of Second Amendment claims:

19 (1) the court asks whether the challenged law burdens conduct protected by the Second

20 Amendment, and (2) if so, the court determines whether the law meets the appropriate level of

21 scrutiny. See Jackson v. City & Cnty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014); see

22 also Peruta v. Cnty. of San Diego, 742 F.3d 1144, 1175 (9th Cir. 2014) (declining to apply a

23 particular level of scrutiny in light of the type of Second Amendment burden imposed).

24

ORDER ON MOTIONS TO DISMISS- 8

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 9 of 15

1

Plaintiffs can point to no case establishing that the Second Amendment codified a free-

2 standing right to self-defense, as opposed to case law interpreting the textual Second Amendment

3 rights to “keep and bear arms” in light of their purposes (which the Supreme Court has held

4 include the facilitation of self-defense). See, e.g., District of Columbia v. Heller, 554 U.S. 570,

5 628 (2008) (“As the quotations earlier in this opinion demonstrate, the inherent right of self-

6 defense has been central to the Second Amendment right. The handgun ban amounts to a

7 prohibition of an entire class of ‘arms’ that is overwhelmingly chosen by American society for

8 that lawful purpose.”). In the criminal context, the Ninth Circuit rejected the idea that recent

9 Supreme Court cases confirmed a Second Amendment right to use a weapon in any particular

10 way: “[N]either [Heller nor McDonald] concerned the use of a weapon, as distinct from mere

11 possession. . . .” United States v. Morsette, 622 F.3d 1200, 1202 (9th Cir. 2010). Similarly,

12 nothing in the Supreme Court’s recent Second Amendment jurisprudence lends support to

13 Plaintiffs’ novel theory that a police department policy outlining expectations for an officer’s use

14 of force can burden conduct protected by the Second Amendment.

15

Instead, the Supreme Court has been clear that “the right secured by the Second

16 Amendment is not unlimited” and is “not a right to keep and carry any weapon whatsoever in

17 any manner whatsoever and for whatever purpose.” Heller, 554 U.S. at 626. Plaintiffs selectively

18 quote historical sources cited in Heller to suggest that so long as self-defense is a purpose for the

19 individual claiming a Second Amendment right, the Second Amendment forbids “unreasonable”

20 restrictions on the manner a weapon is used. (Dkt. No. 59 at 4.) In fact, contemporaneous sources

21 relied on by the Supreme Court and the Ninth Circuit show that restrictions on the manner in

22 which a weapon is used fall outside the scope of the Second Amendment. For example, the Ninth

23 Circuit quoted and the Supreme Court cited the following nineteenth-century footnote: “[I]t is

24

ORDER ON MOTIONS TO DISMISS- 9

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 10 of 15

1 generally held that statutes prohibiting the carrying of concealed weapons are not in conflict with

2 these constitutional provisions, since they merely forbid the carrying of arms in a particular

3 manner, which is likely to lead to breaches of the peace and provoke to the commission of crime,

4 rather than contribute to public or personal defence.” The American Students’ Blackstone:

5 Commentaries on the Laws of England 84 n.11 (George Chase ed., 3d ed. 1890) (emphasis

6 supplied) (cited in Peruta v. County of San Diego, 742 F.3d 1144, 1165 (9th Cir. 2014) and

7 District of Columbia v. Heller, 554 U.S. 570, 626 (2008)). Similarly, the Ninth Circuit relied on

8 nineteenth-century legal commentator John Ordronaux for the proposition that “the [Second]

9 Amendment has never prevented ‘a State from enacting laws regulating the manner in which

10 arms may be carried.’” Peruta, 742 F.3d at 1165. According to the Ninth Circuit, these sources

11 and case law demonstrate that “regulation of the right to bear arms is not only legitimate but

12 quite appropriate.” Id. at 1178 (emphasis in original). In addition to the categories of regulation

13 specifically described in Heller, the Ninth Circuit stated, “Nor should anything in this opinion be

14 taken to cast doubt on the validity of measures designed to make the carrying of firearms for

15 self-defense as safe as possible, both to the carrier and the community.” Id. at 1178.

16

Here, the Policy represents an effort by an employer, the Seattle Police Department, to

17 regulate the use not only of (employer-issued) weapons but of the force its employees are

18 specially sanctioned to wield on behalf of the city government. This scenario has no relation to

19 the Second Amendment guarantees for individuals recognized in Heller, McDonald, and Peruta.

20

Because the Policy does not burden conduct protected by the Second Amendment, the

21 Court need not proceed to the second step of the analysis. Plaintiffs fail to state a plausible

22 Second Amendment claim.

23

24

ORDER ON MOTIONS TO DISMISS- 10

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 11 of 15

1

B. Fourth Amendment

2

Plaintiffs’ Fourth Amendment argument rests on two grounds: the notion that the Policy

3 itself effects a metaphorical “seizure” (Dkt. No. 59 at 9–11) and the notion that the case law

4 analyzing the limits of citizens’ Fourth Amendment rights against the government can be flipped

5 inside out to describe the positive rights of government actors (such as police officers) against

6 citizens (id. at 11–12). Both grounds grossly misconstrue Fourth Amendment law.

7

Fourth Amendment seizures of persons are neither figurative nor hypothetical. The

8 definition requires that a government actor “by means of physical force or show of authority,

9 terminates or restrains [a person’s] freedom of movement [ . . . ] through means intentionally

10 applied.” Brendlin v. California, 551 U.S. 249, 254 (2007). The Policy does not affect officers’

11 freedom of movement, so it does not “seize” Plaintiffs, even if, as Plaintiffs allege, the Policy

12 places them at increased risk of injury. (See Dkt. No. 59 at 9.)

13

Plaintiffs further argue that cases analyzing the Fourth Amendment rights of citizens have

14 recognized a “countervailing governmental interest[ ]”—thus purportedly endowing police

15 officers with a Fourth Amendment right to use force. (See Dkt. No. 59 at 11, citing Graham v.

16 Conner, 490 U.S. 386, 396 (1989)). This argument misses the mark entirely. A balancing test

17 establishing the boundary where government action infringes on a citizen’s Fourth Amendment

18 rights cannot be reinterpreted as a positive Fourth Amendment right for government actors to

19 inflict force up to that boundary.

20

Plaintiffs fail to state a claim under the Fourth Amendment.

21

C. Equal Protection Clause

22

Plaintiffs base their Equal Protection Clause claim on the idea that the Policy burdens

23 “fundamental rights” embedded in the Second and Fourth Amendments. (See Dkt. No. 59 at 12–

24

ORDER ON MOTIONS TO DISMISS- 11

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 12 of 15

1 13 (citing Tucson Woman’s Clinic v. Eden, 371 F.3d 1173, 1185 (9th Cir. 2004).) The Court has

2 already analyzed Plaintiffs’ Second and Fourth Amendment arguments and found them wanting.

3 No Supreme Court case identifies self-defense as a “fundamental right” on par with the right to

4 marry or to vote.

5

Plaintiffs also fail to make even the most rudimentary showing in an equal protection

6 claim: they fail to describe themselves as members of an affected class similarly situated to those

7 outside the class. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (“The

8 Equal Protection Clause of the Fourteenth Amendment commands that no State shall ‘deny to

9 any person within its jurisdiction the equal protection of the laws,’ which is essentially a

10 direction that all persons similarly situated should be treated alike.”). Plaintiffs, like all officers

11 with the Seattle Police Department, are subject to the Policy; they have identified no group that

12 is similarly situated yet not subject to the Policy.

13

Plaintiffs fail to state a claim under the Equal Protection Clause.

14

D. Substantive Due Process

15

Plaintiffs allege substantive due process claims “for both their rights enumerated in the

16 Second Amendment, Fourth Amendment, and Equal Protection Clause” and “for their

17 independent constitutional right to self-defense.” (Dkt. No. 59 at 13–14.) As Plaintiffs

18 acknowledge, substantive due process claims that relate to other constitutional provisions must

19 be analyzed under the legal standards established for those provisions. See Graham v. Connor,

20 490 U.S. 386, 394 (1989). As the Court has already explained, Plaintiffs fail to state a claim

21 under the Second or Fourth Amendment or the Equal Protection Clause.

22

As for the “independent constitutional right to self-defense,” Plaintiffs concede that “no

23 case has expressly considered whether a police officer’s right to self-defense is protected by the

24

ORDER ON MOTIONS TO DISMISS- 12

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 13 of 15

1 Constitution” but ask the Court to locate it in the penumbrae of other constitutional provisions.

2 (Dkt. No. 59 at 14–17.) Courts are “reluctant to expand the concept of substantive due process

3 because guideposts for responsible decisionmaking in this unchartered area are scarce and open-

4 ended.” Collins v. City of Harker Heights, 503 U.S. 115, 125 (1992). Executive action such as

5 the Policy violates substantive due process only when it is arbitrary, that is, when it “shocks the

6 conscience.” See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

7

Plaintiffs characterize the Policy as excessively rigid and complicated. (Dkt. No. 59 at

8 17.) They assert that delay and injury will result from the Policy’s checks on officers’ responses

9 to violent suspects. (Id.) But substantive due process does not guarantee a reasonably safe

10 workplace. Collins, 503 U.S. at 126. It does not shock the conscience to see certain de-escalation

11 procedures imposed on police officers in an effort by their Department to avoid a pattern or

12 practice of excessive use of force. (See generally Policy, Case No. C12-1282JLR, Dkt. No. 107

13 exhibits.) It would be at least surprising if allegations of such a pattern or practice did not lead to

14 the adoption of stricter standards for use of force by officers. Furthermore, the Policy contains a

15 number of concessions to the exigencies of the circumstances. (See, e.g., id. at Ex. 1, p. 3 (“An

16 Officer Shall Use Only the Degree of Force That Is Objectively Reasonable, Necessary Under

17 the Circumstances, and Proportional to the Threat or Resistance of a Subject [. . . ] The

18 reasonableness of a particular use of force is based on the totality of circumstances known by the

19 officer at the time of the use of force and weighs the actions of the officer against the rights of

20 the subject, in light of the circumstances surrounding the event. It must be judged from the

21 perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight[.]

22 The calculus of reasonableness must embody allowance for the fact that police officers are often

23 forced to make split-second decisions—in circumstances that are tense, uncertain, and rapidly

24

ORDER ON MOTIONS TO DISMISS- 13

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 14 of 15

1 evolving—about the amount of force that is necessary in a particular situation.”).) It must also be

2 acknowledged that the Policy provides officers with a wide range of tools to gain control over

3 situations and to protect themselves, from use of verbal commands to physical restraint,

4 TASERS, pepper spray, and batons, in addition to firearms. (See id. at Ex. 1, pp. 8–10.) The

5 Policy is not so inflexible and arbitrary as to shock the conscience, even if it slows or even

6 forestalls the application of force in police interactions with resisting subjects.

7

E. Procedural Due Process

8

Plaintiffs complain that they were not included in the process by which the Policies were

9 adopted, but they cite to no case imposing such a requirement on government employers. (See

10 Dkt. No. 59 at 20.) Furthermore, Plaintiffs locate the liberty interests of which Plaintiffs were

11 allegedly deprived in the Second and Fourth Amendments, and the Court has already held that

12 Plaintiffs’ rights in these areas were not violated. (See id.) Plaintiffs were not due any particular

13 process in the adoption of use-of-force standards by their employer; to the extent they were

14 invited to participate, that participation was a privilege rather than a right.

15

F. City’s Other Arguments

16

The City also argues that Plaintiffs lack standing, fail to state a claim against the Seattle

17 mayor and city attorney, and do not merit injunctive relief. (Dkt. No. 25 at 20–23.) Because the

18 Court concludes Plaintiffs fail to state plausible claims for relief with respect to any defendant,

19 the Court does not reach these questions.

20

Conclusion

21

Because Defendant Bobb is an agent of the court entitled to quasi-judicial immunity, the

22 Court GRANTS his Motion to Dismiss. (Dkt. No. 19.) In addition, because Plaintiffs’ Complaint

23 fails to state a claim for relief under § 1983 or Bivens for violation of their Second or Fourth

24

ORDER ON MOTIONS TO DISMISS- 14

Case 2:14-cv-00794-MJP Document 73 Filed 10/17/14 Page 15 of 15

1 Amendment rights, the Equal Protection Clause, or substantive or procedural due process, the

2 Court GRANTS the City Defendants’ Motion to Dismiss. (Dkt. No. 25.) The case is therefore

3 DISMISSED for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Because

4 the Complaint has already been amended once and further amendment would be futile, the

5 dismissal is with prejudice.

6

7

The clerk is ordered to provide copies of this order to all counsel.

8

9

Dated this 17th day of October, 2014.

10

11

A

12

Marsha J. Pechman

13

Chief United States District Judge

14

15

16

17

18

19

20

21

22

23

24

ORDER ON MOTIONS TO DISMISS- 15

 
 Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege11ofo2f 121

FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

ROBERT MAHONEY, Officer; SJON C. STEVENS, Officer; CLIFF BORJESON, Officer; CHRISTOPHER MYERS, Officer; BRIDGET HILLAN, Officer; LANCE BASNEY, Officer; SALVATORE DITUSA, Officer; CLARKE D. CHASE, Officer; JOSEPH STANKOVICH, Officer; WELDON C. BOYLAND, Officer; JOHN L. FARRAR, Officer; DALE W. UMPLEBY, Officer; RICHARD A. MCAULIFFE, Officer; GEORGE BASELEY, Officer; DAVID M. HARRINGTON, Officer; HENRY FELDMAN, Officer; TERRY WHALEN, Officer; GILLES MONTARON, Officer; ROBERT STEVENSON, Officer #5859; JOSHUA GOODWIN, Officer; RYAN KANNARD, Officer; NATHAN LEMBERG, Officer; JEFF MITCHELL, Officer; ROBERT B. BROWN, Officer; ERNEST T. HALL, Officer; ROBERT BURK, Officer; ROBERT BEATTY, Officer; TOMAS TRYKAR, Officer; BRIEN ESCALANTE, Officer; KAREN G. PIO, Officer; MICHAEL GONZALEZ, Officer; STEVE KIM, Officer; ENNIS ROBERSON, Officer; LEROY OUTLAW, Officer; KIERAN BARTON,

No. 14-35970 D.C. No.
2:14-cv-00794MJP
OPINION

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege22ofo2f 121

2

MAHONEY V. CITY OF SEATTLE

Officer; JONATHAN REESE, Officer; EUGENE SCHUBECK, Officer #6696; SEAN HAMLIN, Officer; SHANNON WALDORF, Officer; JEFFREY SWENSON, Officer; TABITHA SEXTON, Officer #7430; MICHAEL SPAULDING, Officer #7491; STEVEN STONE, Officer #7540; LILIYA A. NESTERUK, Officer; TODD M. NELSON, Officer; TIMOTHY JONES, Officer; TIMOTHY J. WEAR, Officer; THERESA EMERICK, Officer #5002; ARIEL VELA, Sergeant; MICHAEL A. LARNED, Officer #6955; DEREK B. NORTON, Officer; JASON DEWEY, Officer; DAVID WHITE, Officer; TRENT SCHROEDER, Officer; AUDI A. ACUESTA; STEVE CLARK, Officer; STEVEN L. BERG, Officer; ERIK JOHNSON, Officer; VERNON KELLEY, Officer; SHELLY SAN MIGUEL, Officer; CHRISTOPHER J. ANDERSON, Officer; SUZANNE M. PARTON, Officer; ERIC F. WHITEHEAD, Officer; ALAN RICHARDS, Officer; RON WILLIS, Officer; A. SHEHEEN, Officer; RANDALL HIGA, Officer; TIM OWENS, Officer; TYLER GETTS, Officer #7537; ADAM ELIAS, Officer; JON EMERICK, Officer #4326; LOUIS CHAN, Officer; PAUL PENDERGRASS, Sergeant; AJ MARKS, Officer; RON MARTIN, Sergeant;

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege33ofo2f 121

MAHONEY V. CITY OF SEATTLE

3

RUSTY L. LESLIE, Officer; TJ SAN MIGUEL, Officer; JEFFREY C. PAGE, Officer; RYAN ELLIS, Officer; JACK BAILEY, Officer; ALFRED RI WARNER, Officer #6162; MICHAEL R. WASHINGTON, Officer; NINA M. JONES, Officer #7567; ANTHONY JONES REYNOLDS, Officer; RICHARD HEINTZ, Officer; CURTIS GERRY, Officer; ADOLPH TORRESCANO, Officer; CURT E. WILSON, Officer; JAMES G. THOMSEN, Officer; RICHARD W. PRUITT, Officer #5346; DONALD L. WATERS, Detective #6287; ANTHONY J. REYNOLDS, Officer; JONARD A. LEGASPI, Officer #6231,
Plaintiffs-Appellants,
v.
JEFFERSON B. SESSIONS III, Attorney General,
Defendant,
and
CITY OF SEATTLE, including the Seattle Police Department, the Seattle Police Monitor Team, and the Seattle Attorney’s Office; ED MURRAY, individually and in his official capacity, Mayor, City of

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege44ofo2f 121

4

MAHONEY V. CITY OF SEATTLE

Seattle; PETER HOLMES, individually and in his official capacity, Seattle’s City Attorney; MERRICK BOBB, individually and in his offical capacity, Seattle Police Monitor,
Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted May 8, 2017 Seattle, Washington
Filed September 19, 2017
Before: Carlos T. Bea and N. Randy Smith, Circuit Judges, and William Q. Hayes,* District Judge.
Opinion by Judge Hayes

* The Honorable William Q. Hayes, United States District Judge for the Southern District of California, sitting by designation.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege55ofo2f 121

MAHONEY V. CITY OF SEATTLE

5

SUMMARY**

Second Amendment
The panel affirmed the district court’s judgment upholding the use of force policy adopted by the City of Seattle; and rejected the claims under 42 U.S.C. § 1983 of plaintiffs, a group of approximately 125 Seattle Police Department (“SPD”) officers who allege that Seattle violated the Second Amendment right of police officers to use firearms for the core lawful purpose of self-defense.
The panel applied a two-step inquiry to determine whether the challenged law or regulation violated the Second Amendment. At step one, the panel assumed without deciding that the use of force policy was subject to Second Amendment protection. At step two, the panel held that the use of force policy recognized that the plaintiffs could use their department-issued firearms in self-defense in an encounter with a suspect, and concluded that the use of force policy did not impose a substantial burden on plaintiffs’ right to use a firearm for the purpose of lawful self-defense. The panel also concluded that the use of force policy was not such a severe restriction that it amounted to a destruction of the Second Amendment right. The panel, therefore, applied the intermediate level of constitutional scrutiny to determine whether the policy violated the Second Amendment.
Applying intermediate scrutiny, the panel concluded that the use of force policy was constitutional under the Second
** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege66ofo2f 121

6

MAHONEY V. CITY OF SEATTLE

Amendment because there was a reasonable fit between the policy of Seattle’s important government interest in ensuring the safety of both the public and its police officers.

The panel also affirmed the district court’s dismissal of plaintiffs’ substantive due process and equal protection claims.

COUNSEL
Athan E. Tramountanas (argued), Short Cressman & Burgess PLLC, Seattle, Washington; Lisa Ann Battalia, Law Office of Lisa Ann Battalia, Bethesda, Maryland; for PlaintiffsAppellants.
Gregory Colin Narver (argued), Assistant City Attorney; Peter S. Holmes, City Attorney; City Attorney’s Office, Seattle, Washington; for Defendants-Appellees.

OPINION
HAYES, District Judge:
We must decide whether the use of force policy adopted by the City of Seattle violates the Second Amendment right of police officers to use firearms for the core lawful purpose of self-defense. We conclude that the policy survives intermediate scrutiny and is, therefore, constitutional. We affirm the judgment of the district court.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege77ofo2f 121

MAHONEY V. CITY OF SEATTLE

7

FACTUAL AND PROCEDURAL BACKGROUND

In 2012, the United States brought a civil action in the United States District Court for the Western District of Washington against the City of Seattle, alleging that the Seattle Police Department (“SPD”) engaged in a pattern or practice of excessive use of force. United States v. City of Seattle, Case No. 2:12-cv-01282-JLR (W.D. Wash.). Pursuant to a settlement agreement between the parties, the United States and the City of Seattle worked with a courtappointed monitor to produce a Use of Force Policy (“UF Policy”) that would apply to SPD officers’ use of approved department firearms while on duty.

On December 17, 2013, United States District Judge James L. Robart issued an order approving the policy agreed to by the parties.1 The UF Policy2 states, in part, that “[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a law-enforcement objective.” The UF Policy provides a set of factors that officers must consider to determine whether a proposed use of force is objectively reasonable, necessary, and proportional to the threat at issue.

1 The order is styled as an “Order Approving Consensus Use of Force Policies” submitted by the court-appointed monitor.
2 We take judicial notice of and reference the revised UF Policy in Appellees’ request for judicial notice (Dkt. No. 30-2 at 28–85), as well as the docket sheet from United States v. City of Seattle, Case No. 12-cv01282-JLR (W.D. Wash.). See Reyn’s Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (“We may take judicial notice of court filings and other matters of public record.”). We deny the City of Seattle’s second request for judicial notice of a subsequent revised UF Policy on the grounds that the document remains pending court approval.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege88ofo2f 121

8

MAHONEY V. CITY OF SEATTLE

Although the UF Policy requires officers to consider those factors before using a firearm, the UF Policy also states that officers must consider those factors only “[w]hen safe under the totality of circumstances and time and circumstances permit[.]” The UF Policy also requires officers to use deescalation tactics to reduce the need for force only “[w]hen safe and feasible under the totality of circumstances[.]”

Appellants, a group of approximately 125 SPD officers, subsequently brought this action pursuant to 42 U.S.C. § 1983 against the City of Seattle, including SPD and other related entities, to challenge the constitutionality of the UF Policy. Appellants brought claims under the Second, Fourth, Fifth, and Fourteenth Amendments, alleging that the UF Policy unreasonably restricts their right to use department-issued firearms for self-defense. On October 17, 2014, the district court granted the motion to dismiss filed by the City of Seattle, concluding that the UF Policy did not burden conduct protected by the Second Amendment. Mahoney v. Holder, 62 F. Supp. 3d 1215, 1222 (W.D. Wash. 2014). Appellants timely appealed.

STANDARD OF REVIEW

We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). See N.M. State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). We review de novo all constitutional rulings. See Wilson v. Lynch, 835 F.3d 1083, 1090 (9th Cir. 2016). We may affirm on any basis supported by the record below. See Bill v. Brewer, 799 F.3d 1295, 1299 (9th Cir. 2015).

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege99ofo2f 121

MAHONEY V. CITY OF SEATTLE

9

When evaluating a motion to dismiss under Rule 12(b)(6), we accept the well-pleaded factual allegations of a complaint as true and construe all inferences in favor of the nonmoving party. Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016). Dismissal under Rule 12(b)(6) is warranted if a complaint fails “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss.” Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).

DISCUSSION

I. Second Amendment Precedent and Two-Step Inquiry

The Second Amendment provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. In District of Columbia v. Heller, the Supreme Court concluded that District of Columbia statutes that required residents to keep firearms in the home unloaded and disassembled and prohibited the possession of handguns in the home violated the Second Amendment. 554 U.S. 570, 574–75, 635 (2008). The Court recognized that “the inherent right of self-defense has been central to the Second Amendment right.” Id. at 628. The Court concluded that the statutes at issue “ma[de] it impossible for citizens to use [firearms] for the core lawful purpose of self-defense and [were] hence unconstitutional.” Id. at 630. The Court subsequently applied the right to keep and bear arms for self-defense under the Second Amendment against the States through the Fourteenth Amendment in McDonald v. City of Chicago, 561 U.S. 742 (2010).

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1010ofo2f 121

10

MAHONEY V. CITY OF SEATTLE

Following Heller and McDonald, we “adopt[ed a] twostep . . . inquiry” to determine whether a challenged law or regulation violates the Second Amendment. United States v. Chovan, 735 F.3d 1127, 1136 (9th Cir. 2013). The two-step inquiry “reflects the Supreme Court’s holding in Heller that, while the Second Amendment protects an individual right to keep and bear arms, the scope of that right is not unlimited.” Id. A majority of our sister circuits have adopted this twostep inquiry to analyze Second Amendment claims. See Silvester v. Harris, 843 F.3d 816, 820–21 (9th Cir. 2016).

At the first step, courts ask whether “the challenged law burdens conduct protected by the Second Amendment[.]” Chovan, 735 F.3d at 1136. If a court answers this question in the affirmative, “the regulation is subject to Second Amendment protection (i.e., the regulation is neither outside the historical scope of the Second Amendment, nor presumptively lawful), [and] the court then proceeds to the second step of the inquiry to determine the appropriate level of scrutiny to apply.” Silvester, 843 F.3d at 821 (citing Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 960 (9th Cir. 2014)).

II. Step One: Whether the UF Policy Burdens Conduct Protected by the Second Amendment

To determine whether the UF Policy burdens conduct protected by the Second Amendment, we ask whether the UF Policy “is one of the ‘presumptively lawful regulatory measures’ identified in Heller, or whether the record includes persuasive historical evidence establishing that the regulation at issue imposes prohibitions that fall outside the historical

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege111ofo2f 121

MAHONEY V. CITY OF SEATTLE

11

scope of the Second Amendment[.]”3 Jackson, 746 F.3d at 960 (quoting Heller, 554 U.S. at 627 n.26).

“Heller indicated that the Second Amendment does not preclude certain ‘longstanding prohibitions’ and ‘presumptively lawful regulatory measures,’ such as ‘prohibitions on carrying concealed weapons,’ ‘prohibitions on the possession of firearms by felons and the mentally ill,’ ‘laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,’ ‘laws imposing conditions and qualifications on the commercial sale of arms,’ and prohibitions on ‘the carrying of “dangerous and unusual weapons,”’ referring to weapons that were not ‘in common use at the time’ of the enactment of the Second Amendment.” Id. at 959 (quoting Heller, 554 U.S. at 626–27, 627 n.26). In this case, the UF Policy—an employer policy that regulates a police officer’s use of a department-issued firearm while on duty—does not resemble any of the “presumptively lawful” regulations recognized in Heller. 554 U.S. at 627 n.26.

Next, we examine the record to determine “whether there is persuasive historical evidence showing that the regulation does not impinge on the Second Amendment right as it was historically understood.” Silvester, 843 F.3d at 821. In this case, the parties have not provided any “persuasive historical evidence” demonstrating that regulating police officers’ use

3 Appellants assert that the UF Policy infringes on their Second Amendment right to self-defense and then frame the historical inquiry around this right. The scope of Appellants’ inquiry is too broad. Instead, we must examine whether restrictions on a government employee’s use of a government-issued firearm in the line of duty fall outside the historical scope of the Second Amendment.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1212ofo2f 121

12

MAHONEY V. CITY OF SEATTLE

of department-issued firearms is historically longstanding or falls outside the historical scope of the Second Amendment. Jackson, 746 F.3d at 960, 963. We do not purport to rule definitively on whether, historically, officers have been restricted in the use of their government-issued firearms while acting within the scope of their employment. However, “[b]ecause of the lack of historical evidence in the record before us,” see Chovan, 735 F.3d at 1137 (internal quotation mark and citation omitted), “we assume, without deciding, that the [UF Policy] burdens conduct falling within the scope of the Second Amendment.” Bauer v. Becerra, 858 F.3d 1216, 1221 (9th Cir. 2017).

Because the UF Policy resembles none of the presumptively lawful measures identified in Heller, and the parties have adduced no evidence that the UF Policy imposes a restriction on conduct that falls outside the historical scope of the Second Amendment right to use a firearm for selfdefense, we assume the UF Policy “is subject to Second Amendment protection” and we proceed to the second step of the inquiry.4 Silvester, 843 F.3d at 821.

III. Step Two: Applying Constitutional Scrutiny to the UF Policy

A. Determining the Level of Scrutiny

To ascertain the proper level of constitutional scrutiny to apply to the UF Policy at the second step, we must consider:

4 The district court concluded that the UF Policy did not burden conduct protected by the Second Amendment, and therefore did not proceed to the second step of the inquiry. See Mahoney, 62 F. Supp. 3d at 1221–22.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1313ofo2f 121

MAHONEY V. CITY OF SEATTLE

13

“(1) how close the challenged law comes to the core of the Second Amendment right, and (2) the severity of the law’s burden on that right.” Silvester, 843 F.3d at 821 (citing Jackson, 746 F.3d at 960–61). A restriction “that implicates the core of the Second Amendment right and severely burdens that right warrants strict scrutiny[,]” while a restriction that “‘does not implicate a core Second Amendment right, or does not place a substantial burden on the Second Amendment right’” warrants intermediate scrutiny. Id. (quoting Jackson, 746 F.3d at 961).

In addressing the extent to which the UF Policy burdens Appellants’ constitutional right under the Second Amendment, we begin with Heller’s holding that the Second Amendment protects the right of citizens to use a firearm “for the core lawful purpose of self-defense[.]” Heller, 554 U.S. at 630. When evaluating the constitutional claim of a government employee, however, the Supreme Court instructs us to balance the rights of the employee “against the realities of the employment context.” Engquist v. Or. Dep’t of Agr., 553 U.S. 591, 600 (2008).

In Engquist, the Supreme Court affirmed the dismissal of an equal protection challenge to the decision of the Oregon Department of Agriculture to terminate an employee “in a seemingly arbitrary or irrational manner.” Id. at 605. The Court stated, “We have long held the view that there is a crucial difference, with respect to constitutional analysis, between the government exercising ‘the power to regulate or license, as lawmaker,’ and the government acting ‘as proprietor, to manage [its] internal operation.’” Id. at 598 (quoting Cafeteria & Rest. Workers Union v. McElroy, 367 U.S. 886, 896 (1961)). “[I]n striking the appropriate balance, we consider whether the asserted employee right

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1414ofo2f 121

14

MAHONEY V. CITY OF SEATTLE

implicates the basic concerns of the relevant constitutional provision, or whether the claimed right can more readily give way to the requirements of the government as employer.” Id. at 600. The Court concluded that the “government’s interest in achieving its goals as effectively and efficiently as possible is elevated from a relatively subordinate interest when it acts as sovereign to a significant one when it acts as employer.” Id. at 598–99 (quoting Waters v. Churchill, 511 U.S. 661, 675 (1994) (plurality opinion)); see also Nordyke v. King, 681 F.3d 1041, 1044–45 (9th Cir. 2012) (en banc) (concluding that an ordinance regulating “the sale of firearms . . . only minimally, and only on County property” was constitutional under the Second Amendment, while citing with approval the Engquist lawmaker/proprietor distinction); Bonidy v. U.S. Postal Serv., 790 F.3d 1121, 1126–27 (10th Cir. 2015) (concluding that a regulation prohibiting the possession of firearms on Postal Service property was constitutional under the Second Amendment, recognizing that “[t]he government often has more flexibility to regulate when it is acting as a proprietor (such as when it manages a post office) than when it is acting as a sovereign (such as when it regulates private activity unconnected to a government service)”).

In this case, the UF Policy regulates Appellants’ use of department-issued firearms while acting in the course and scope of their official duties as police officers. The firearms regulated by the UF Policy are issued to Appellants by the City of Seattle in its capacity as proprietor. The UF Policy was adopted by the City of Seattle as an employer to regulate the conduct of its police officers. Because the City of Seattle has a significant interest in regulating the use of departmentissued firearms by its employees, we conclude that the application of intermediate scrutiny to the UF Policy

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1515ofo2f 121

MAHONEY V. CITY OF SEATTLE

15

appropriately places the burden on the City of Seattle to justify placing restrictions on any Second Amendment right of its employees, while also giving the City the flexibility to act as an employer.

The second factor in determining what level of constitutional scrutiny to apply to the UF Policy requires us to consider the severity of the UF Policy’s burden on the right of citizens to use a firearm for the core lawful purpose of selfdefense. See Chovan, 735 F.3d at 1138. “This court has explained that laws which regulate only the ‘manner in which persons may exercise their Second Amendment rights’ are less burdensome than those which bar firearm possession completely.” Silvester, 843 F.3d at 827 (quoting Chovan, 735 F.3d at 1138). However, to determine the severity of the burden on the Second Amendment right, we look closely at the restriction on the manner of firearm possession to ensure it is not “such a severe restriction on the core right of selfdefense that it ‘amounts to a destruction of the [Second Amendment] right[.]’” Jackson, 746 F.3d at 961 (quoting Heller, 554 U.S. at 629); see also Peruta v. Cty. of San Diego, 824 F.3d 919, 950 (9th Cir. 2016) (en banc) (Callahan, J., dissenting) (courts should consider Second Amendment challenges to firearm restrictions in “context” to ensure the restrictions are not “tantamount to complete bans on the Second Amendment right to bear arms outside the home for self-defense”), cert. denied, — U.S. —, 137 S. Ct. 1995 (June 26, 2017).

In this case, the UF Policy applies to Appellants’ use of department-issued firearms in the course and scope of their official duties. The UF Policy states that a police officer “may draw or exhibit a firearm in the line of duty when the officer has reasonable cause to believe it may be necessary

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1616ofo2f 121

16

MAHONEY V. CITY OF SEATTLE

for his or her own safety or for the safety of others[.]” The UF Policy states that prior to using physical force during an incident with a subject, Appellants “shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on” a variety of factors, including the subject’s possible medical conditions, mental impairment, developmental disability, drug interaction, and behavioral crisis. The UF Policy requires that “when safe under the totality of the circumstances and time and circumstances permit, officers shall use de-escalation tactics in order to reduce the need for force[.]”

The UF Policy explicitly recognizes that Appellants may use their department-issued firearms in self-defense in an encounter with a suspect—including the use of deadly force with a firearm. The UF Policy states that “[d]eadly force may only be used in circumstances where threat of death or serious physical injury to the officer or others is imminent[,]” and recognizes that “sometimes the use-of-force is unavoidable[.]” As a result, the UF Policy does not impose a substantial burden on Appellants’ right to use a firearm for the purpose of lawful self-defense. See Jackson, 746 F.3d at 968 (concluding that a statute prohibiting the sale of hollowpoint bullets did not “place a substantial burden on the Second Amendment right” because the statute “limits only the manner in which a person may exercise Second Amendment rights by making it more difficult to purchase certain types of ammunition.”). Thus, the nature of the burden imposed by the UF Policy on Appellants’ Second Amendment right to use a firearm for the lawful purpose of self-defense favors the application of intermediate scrutiny.

Accordingly, we conclude that the UF Policy does not impose a substantial burden on the Second Amendment right

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1717ofo2f 121

MAHONEY V. CITY OF SEATTLE

17

to use a firearm for the core lawful purpose of self-defense. We also conclude that the UF Policy is not “such a severe restriction on the core right of self-defense that it ‘amounts to a destruction of the [Second Amendment] right[.]’” Jackson, 746 F.3d at 961 (quoting Heller, 554 U.S. at 629). Therefore, we apply intermediate scrutiny to determine whether the UF Policy violates the Second Amendment. See Silvester, 843 F.3d at 823 (“There is accordingly near unanimity in the post-Heller case law that when considering regulations that fall within the scope of the Second Amendment, intermediate scrutiny is appropriate.”).

B. Application of Intermediate Scrutiny

“In the context of Second Amendment challenges, intermediate scrutiny requires: ‘(1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged regulation and the asserted objective.’” Fyock v. Sunnyvale, 779 F.3d 991, 1000 (9th Cir. 2015) (quoting Chovan, 735 F.3d at 1139).

At the first step, in order to determine whether the government’s interest is significant, substantial, or important, we first define the government’s objective. Jackson, 746 F.3d at 965. In Jackson, we explained that “[i]n considering a city’s justifications for its ordinance, we do not impose ‘an unnecessarily rigid burden of proof . . . so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.’” Id. (quoting City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50–52 (1986)).

In this case, the joint findings of fact and conclusions of law approved by the district judge in the United States v. City

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1818ofo2f 121

18

MAHONEY V. CITY OF SEATTLE

of Seattle litigation states that the City of Seattle’s goal in joining the settlement agreement was to “ensure[] that SPD’s policies [and] procedures . . . are sufficient to prevent . . . a pattern or practice of constitutional violations.” The section of the UF Policy titled “Core Principles” states that Appellants must “use only the force necessary to perform their duties[,]” and explains that “[a]n officer’s commitment to public safety includes the welfare of members of the public, the officer, and fellow officers[.]”

The City of Seattle has the important government interest of ensuring the safety of both the public and its police officers. See United States v. Salerno, 481 U.S. 739, 748 (1987) (“[T]he Government’s regulatory interest in community safety can, in appropriate circumstances, outweigh an individual’s liberty interest.”); Jackson, 746 F.3d at 965 (quoting Chovan, 735 F.3d at 1139) (“‘It is selfevident,’ . . . that public safety is an important government interest.”). The record establishes that the City of Seattle enacted the UF Policy to address the important government objective of ensuring public safety and police officer safety. See Chovan, 735 F.3d at 1140 (“We hold that the government has met its burden to show that reducing domestic gun violence is an important government objective.”).

At the second step, we consider whether there is a reasonable fit between the UF Policy and the City of Seattle’s asserted objective of ensuring the safety of the public and its police officers. In determining the degree of fit between the challenged regulation and its asserted objective, the City of Seattle is “not required to show that [the UF Policy] is the least restrictive means of achieving its interest.” Fyock, 779 F.3d at 1000 (citing Jackson, 746 F.3d at 966). To survive intermediate scrutiny, we must determine whether the

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege1919ofo2f 121

MAHONEY V. CITY OF SEATTLE

19

record shows that the UF Policy “promotes a ‘substantial government interest that would be achieved less effectively absent the regulation.’” Id. (quoting Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th Cir. 1998)).

In this case, the UF Policy states that “[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency of the situation, when necessary, to achieve a lawenforcement objective.” The UF Policy also requires that Appellants use “[d]e-escalation tactics and techniques . . . when safe and without compromising law enforcement priorities,” and states that Appellants “shall consider whether a subject’s lack of compliance is a deliberate attempt to resist or an inability to comply based on” a variety of factors. Those provisions advance the City of Seattle’s important government interest of ensuring the safety of the public by mandating de-escalation techniques and reducing the likelihood that a firearm will be drawn or used where such force is not “objectively reasonable,” “proportional to the threat or urgency of the situation,” or “necessary to achieve a law-enforcement objective.”

The UF Policy also advances the City of Seattle’s important government interest of ensuring the safety of its police officers. The UF Policy requires Appellants to employ de-escalation techniques only “[w]hen safe under the totality of the circumstances and time and circumstances permit.” Thus, the UF Policy expressly contemplates that de-escalation techniques will not be feasible in every situation, and even states that “sometimes, the use of force is unavoidable.” The UF Policy also provides that Appellants may use deadly force where an objectively reasonable officer would conclude that the “threat of death or serious physical injury to the officer or others is imminent.” These provisions ensure that Appellants

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege2020ofo2f 121

20

MAHONEY V. CITY OF SEATTLE

may use their department-issued firearms to defend themselves and the public.

In adopting the UF Policy, the City of Seattle drew “reasonable inference[s]” that the UF Policy would assist in ensuring the safety of both the public and its police officers. Jackson, 746 F.3d at 966. The UF Policy advances an important government interest that would be achieved less effectively in its absence. See Silvester, 843 F.3d at 829 (concluding that a statute imposing a ten-day waiting period to purchase firearms on certain individuals was reasonably fit to state’s public safety objective). Given the City of Seattle’s important interest in promoting the safety of the public and its police officers, we determine there is a reasonable fit between the UF Policy and this significant goal. We conclude that the UF Policy survives intermediate scrutiny and is, therefore, constitutional under the Second Amendment. Because we find the UF Policy is constitutional, we affirm the district court’s dismissal of the Second Amendment claim.

IV. The Substantive Due Process and Equal Protection Claims

We also affirm the district court’s dismissal of the remaining claims. First, we agree with the district court that current case law does not support the existence of a freestanding fundamental right to self-defense outside of the “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Heller, 554 U.S. at 635. Because precedent does not support recognizing the fundamental right Appellants’ assert, Appellants’ substantive due process claim is not a cognizable claim upon which relief can be granted.

Case:21:41-43-5cv9-7000,70994/-1M9/J2P017D,oIcDu:m10e5n8t 575932F,iDlekdtE0n9t/r1y9:/5107-1P, Pagaege2121ofo2f 121

MAHONEY V. CITY OF SEATTLE

21

Second, the district court properly concluded that Appellants failed to state a cognizable equal protection claim. Appellants failed to allege facts to support the claim that they are being denied a fundamental right while others are permitted to exercise such right, and that there is no valid justification for the distinction. Further, this claim is not cognizable under the Equal Protection Clause because it is “no more than a [Second] Amendment claim dressed in equal protection clothing[.]” Orin v. Barclay, 272 F.3d 1207, 1213 n.3 (9th Cir. 2001).

CONCLUSION

The City of Seattle has a significant interest in regulating the use of department-issued firearms by its police officers, and the UF Policy does not impose a substantial burden on the Second Amendment right to use a firearm for the core lawful purpose of self-defense. Therefore, we apply intermediate scrutiny to determine whether the UF Policy violates the Second Amendment right of its police officers. We conclude that the UF Policy is constitutional under the Second Amendment because there is a reasonable fit between the UF Policy and the City of Seattle’s important government interest in ensuring the safety of both the public and its police officers. We affirm the district court’s dismissal of Appellants’ Second Amendment claim.

We affirm the ruling of the district court on all other grounds.

AFFIRMED.