U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:20-cv-00887-RAJ

Alerts not yet Supported for this Docket

Black Lives Matter Seattle-King County et al v. City of Seattle Assigned to: Judge Richard A. Jones Cause: 42:1983 Civil Rights Act

Date Filed: 06/09/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Black Lives Matter Seattle-King County

represented by Breanne Mary Schuster ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: bschuster@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Carolyn S Gilbert PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3279 Email: carolyngilbert@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Heath L Hyatt PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8000 Email: hhyatt@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John B. Midgley ACLU OF WASHINGTON

901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: jmidgley@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-623-1900 Email: lnowlin@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-682-2184 Email: talner@aclu-wa.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3267 Email: NArora@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3629 Email: pwhidbee@perkinscoie.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Seungchul Chang RONALD A PETERSON LAW CLINIC SEATTLE UNIVERSITY SCHOOL OF LAW 1112 E COLUMBIA STREET SEATTLE, WA 98122 206-398-4025 Email: changro@seattleu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin SEATTLE UNIVERSITY SCHOOL OF LAW 901 12TH AVENUE PO BOX 222000 SEATTLE, WA 98122-1090 206-398-4167 Email: levinje@seattleu.edu ATTORNEY TO BE NOTICED
Joseph M McMillan PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-583-8888 Fax: FAX 583-8500 Email: JMcMillan@perkinscoie.com TERMINATED: 08/12/2020
Mallory Gitt Webster PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-3701 Email: mwebster@perkinscoie.com TERMINATED: 06/15/2020
Melissa R Lee RONALD A PETERSON LAW CLINIC SEATTLE UNIVERSITY SCHOOL OF LAW 1112 E COLUMBIA STREET SEATTLE, WA 98122

Plaintiff Abie Ekenezar

206-398-4394 Email: leeme@seattleu.edu ATTORNEY TO BE NOTICED
Molly Tack-Hooper ACLU OF WASHINGTON 901 FIFTH AVENUE SUITE 630 PO BOX 2728 SEATTLE, WA 98111 206-624-2184 Email: mollytack@gmail.com TERMINATED: 12/07/2020
Rachel Ayn Smith Haney PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-8544 Email: rhaney@perkinscoie.com ATTORNEY TO BE NOTICED
David A. Perez PERKINS COIE (SEA) 1201 3RD AVE STE 4900 SEATTLE, WA 98101-3099 206-359-6767 Email: dperez@perkinscoie.com ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020
Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
Molly Tack-Hooper

Plaintiff Sharon Sakamoto

(See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Muraco Kyashna-tocha

Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020
Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
Molly Tack-Hooper (See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020

Plaintiff Alexander Woldeab

Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
Molly Tack-Hooper (See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020
Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
Molly Tack-Hooper (See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez

Plaintiff Nathalie Graham

(See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address)

Plaintiff Alexandra Chen

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020
Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED
Molly Tack-Hooper (See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Breanne Mary Schuster (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Carolyn S Gilbert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Heath L Hyatt (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

John B. Midgley (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Lisa Nowlin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nancy Lynn Talner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Nitika Arora (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Paige L Whidbee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert Seungchul Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jessica E Levin (See above for address) ATTORNEY TO BE NOTICED
Joseph M McMillan (See above for address) TERMINATED: 08/12/2020
Mallory Gitt Webster (See above for address) TERMINATED: 06/15/2020
Melissa R Lee (See above for address) ATTORNEY TO BE NOTICED

V. Defendant City of Seattle

Molly Tack-Hooper (See above for address) TERMINATED: 12/07/2020
Rachel Ayn Smith Haney (See above for address) ATTORNEY TO BE NOTICED
David A. Perez (See above for address) ATTORNEY TO BE NOTICED
represented by Ann E Trivett CHRISTIE LAW GROUP PLLC 2100 WESTLAKE AVENUE N STE 206 SEATTLE, WA 98109 206-957-9669 Email: ann@christielawgroup.com ATTORNEY TO BE NOTICED
Carolyn U Boies SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-233-2658 Email: carolyn.boies@seattle.gov ATTORNEY TO BE NOTICED
Ghazal Sharifi SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8217 Email: Ghazal.Sharifi@seattle.gov ATTORNEY TO BE NOTICED

Megan Maria Coluccio CHRISTIE LAW GROUP PLLC 2100 WESTLAKE AVENUE N STE 206 SEATTLE, WA 98109 206-957-9669 Email: megan@christielawgroup.com ATTORNEY TO BE NOTICED
Robert Leslie Christie CHRISTIE LAW GROUP PLLC 2100 WESTLAKE AVENUE N STE 206 SEATTLE, WA 98109 206-957-9669 Fax: 206-352-7875 Email: bob@christielawgroup.com ATTORNEY TO BE NOTICED
Thomas P Miller CHRISTIE LAW GROUP PLLC 2100 WESTLAKE AVENUE N STE 206 SEATTLE, WA 98109 206-957-9669 Fax: 206-352-7875 Email: tom@christielawgroup.com ATTORNEY TO BE NOTICED

Date Filed 06/09/2020

# Docket Text
1 COMPLAINT against defendant(s) City of Seattle with JURY DEMAND (Receipt # AWAWDC-6389780) Attorney David A. Perez added to party Black Lives Matter Seattle-King County(pty:pla), Attorney David A. Perez added to party Alexandra Chen(pty:pla), Attorney David A. Perez added to party Abie Ekenezar(pty:pla), Attorney David A. Perez added to party Nathalie Graham(pty:pla), Attorney David A. Perez added to party Muraco Kyashna-tocha(pty:pla), Attorney David A. Perez added to party Sharon Sakamoto(pty:pla), Attorney David A. Perez added to party Alexander Woldeab(pty:pla), filed by Sharon Sakamoto, Alexander Woldeab, Muraco Kyashna-tocha, Abie Ekenezar, Alexandra Chen, Black Lives Matter Seattle-King County, Nathalie Graham.

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(Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Perez, David) (Entered: 06/09/2020)
2 CORPORATE DISCLOSURE STATEMENT indicating no Corporate Parents and/or Affiliates. Filed pursuant to Fed.R.Civ.P 7.1. Filed by Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab (Perez, David) (Entered: 06/09/2020)
Judge Richard A. Jones added. (Ad Hoc, Carolyn Gilbert. The email address on the complaint does not correspond with the court's record in CM/ECF.) (ST) (Entered: 06/09/2020)
3 Summons(es) Electronically Issued as to defendant(s) City of Seattle (Ad Hoc, Carolyn Gilbert. The email address on the complaint does not correspond with the court's record in CM/ECF.) (ST) (Entered: 06/09/2020)
4 NOTICE of Appearance by attorney Carolyn U Boies on behalf of Defendant City of Seattle. (Boies, Carolyn) (Entered: 06/09/2020)
5 NOTICE of Appearance by attorney Ghazal Sharifi on behalf of Defendant City of Seattle. (Sharifi, Ghazal) (Entered: 06/09/2020)
6 MOTION for Temporary Restraining Order , filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 6/9/2020, (Perez, David) (Entered: 06/09/2020)
7 DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
8 DECLARATION of Chase Burns Broderick filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
9 DECLARATION of Alexandra Chen filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto,

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Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
10 DECLARATION of William Daniell filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
11 DECLARATION of Abie Ekenezar filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
12 DECLARATION of Nathalie Graham filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
13 DECLARATION of Elliot Grace Harvey filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
14 DECLARATION of Muraco Kyashna-Tocha filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
15 DECLARATION of Joseph Lachman filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
16 DECLARATION of Sharon A. Sakamoto filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
17 DECLARATION of Alexander Woldeab filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar,

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Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
18 CERTIFICATE OF SERVICE by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 17 Declaration, 10 Declaration, 13 Declaration, 7 Declaration, 16 Declaration, 12 Declaration, 6 MOTION for Temporary Restraining Order , 11 Declaration, 8 Declaration, 14 Declaration, 9 Declaration, 15 Declaration, (Perez, David) (Entered: 06/09/2020)
19 DECLARATION of Omari Salisbury filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/09/2020)
Set Hearing: TELEPHONE CONFERENCE set for 6/10/2020 at 1:30 PM before Judge Richard A. Jones. (VE) (Entered: 06/10/2020)
20 NOTICE of Intent to File Response Under LCR 65(b) ; filed by Defendant City of Seattle. (Attachments: # 1 Proposed Order)(Sharifi, Ghazal) (Entered: 06/10/2020)
21 DECLARATION of Peter S. Holmes filed by Defendant City of Seattle re 6 MOTION for Temporary Restraining Order (Sharifi, Ghazal) (Entered: 06/10/2020)
22 DECLARATION of Ghazal Sharifi filed by Defendant City of Seattle re 6 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit 1-11)(Sharifi, Ghazal) (Entered: 06/10/2020)
23 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Robert Chang, Molly Tack-Hooper; Def Counsel: Ghazal Sharifi, Carolyn Boies; CR: Nancy Bauer; TELEPHONE CONFERENCE held on 6/10/2020. After hearing from counsel, the Court sets a deadline for Defendant to file its response to Plaintiffs' 6 MOTION for Temporary Restraining Order no later than 4:00 PM on 6/11/2020. MOTION HEARING on Plaintiffs' 6 MOTION for Temporary Restraining Order set for 6/12/2020 at 9:00 AM before Judge Richard A. Jones. (VE) (Entered: 06/10/2020)

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24 STANDING ORDER for Civil Cases Assigned to Judge Richard A. Jones. (VE) (Entered: 06/10/2020)
25 DECLARATION of Gretchen Martini filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/11/2020)
26 DECLARATION of Lauren Truscott filed by Defendant City of Seattle re 6 MOTION for Temporary Restraining Order (Sharifi, Ghazal) (Entered: 06/11/2020)
27 DECLARATION of Thomas Mahaffey filed by Defendant City of Seattle re 6 MOTION for Temporary Restraining Order (Sharifi, Ghazal) (Entered: 06/11/2020)
28 DECLARATION of Carolyn U. Boies filed by Defendant City of Seattle re 6 MOTION for Temporary Restraining Order (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Sharifi, Ghazal) (Entered: 06/11/2020)
29 RESPONSE, by Defendant City of Seattle, to 6 MOTION for Temporary Restraining Order . (Attachments: # 1 Proposed Order)(Sharifi, Ghazal) (Entered: 06/11/2020)
30 DECLARATION of Aisling Cooney filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/11/2020)
31 DECLARATION of Aubreanna Inda filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/11/2020)
32 DECLARATION of Daniel Azoulai filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 6 MOTION for Temporary Restraining Order (Perez, David) (Entered: 06/11/2020)
NOTICE REGARDING LACK OF PROPER SIGNATURE. The 26 Declaration, 27 Declaration were improperly signed by LAUREN TRUSCOTT, THOMAS MAHAFFEY. Signatures

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must comply with ECF Filing Procedures. Please file corrected signature page using Praecipe to Attach event and link to original filing. (MW) (Entered: 06/12/2020)
33 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Robert Chang, Molly Tack-Hooper; Def Counsel: Ghazal Sharifi, Carolyn Boies; CR: Debbie Zurn; TELEPHONIC MOTION HEARING on Plaintiffs' 6 MOTION for Temporary Restraining Order held on 6/12/2020. The Court hears argument of counsel and takes this matter under advisement. (VE) (Entered: 06/12/2020)
34 ORDER granting in part Plaintiffs' 6 Motion for Temporary Restraining Order. The Court temporarily ENJOINS The City of Seattle, including the Seattle Police Department and any other officers, departments, agencies, or organizations under the Seattle Police Department's control (collectively, the City), is hereby enjoined from employing chemical irritants or projectiles of any kind against persons peacefully engaging in protests or demonstrations. This injunction includes: (1) any chemical irritant such as and including CS Gas (tear gas) and OC spray (pepper spray) and (2) any projectile such as and including flash-bang grenades, pepper balls, blast balls, rubber bullets, and foam-tip projectiles. This Order does not preclude individual officers from taking necessary, reasonable, proportional, and targeted action to protect against a specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property. Further, tear gas may be used only if (a) efforts to subdue a threat by using alternative crowd measures, including pepper spray, as permitted by this paragraph, have been exhausted and ineffective and (b) SPD's Chief of Police has determined that use of tear gas is the only reasonable alternative available. The Chief of Police may only authorize limited and targeted use of tear gas and must direct it to those causing violent or potentially life-threatening activity. To the extent that chemical irritants or projectiles are used in accordance with this paragraph, they shall not be deployed indiscriminately into a crowd and to the extent reasonably possible, they should be targeted at the specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property. (2) In the event that Plaintiffs seek relief for an alleged violation of this Order, the City must respond to the motion for relief within 24 hours.(3) Because this is a non-commercial case, the balance of hardships favors Plaintiffs, and there is no realistic likelihood of harm to the City of Seattle from enjoining its conduct, the Court waives the security bond requirement.(4) This Order will expire fourteen days after entry

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unless extended by the Court for good cause. Fed. R. Civ. P. 65(b)(2). Signed by Judge Richard A. Jones.(PM) (Entered: 06/12/2020)
35 PRAECIPE to attach document (Declaration) Declaration of Lauren Truscott re 26 Declaration by Defendant City of Seattle (Sharifi, Ghazal) (Entered: 06/12/2020)
36 PRAECIPE to attach document (Declaration) Declaration of Thomas Mahaffey re 27 Declaration by Defendant City of Seattle (Sharifi, Ghazal) (Entered: 06/12/2020)
37 MINUTE ORDER entered upon the authority of Judge Richard A. Jones. No later than 6/17/2020, by 4:00 p.m., the parties shall jointly submit a proposed briefing schedule for the forthcoming motion for preliminary injunction. No separate proposals shall be filed. If the parties cannot agree on a briefing schedule, they are directed to set forth the competing proposals in a single filing. (VE) (Entered: 06/15/2020)
38 ORDER REGARDING FRCP 26(f) CONFERENCE, INITIAL DISCLOSURES, AND JOINT STATUS REPORT. FRCP 26(f) Conference Deadline is 6/30/2020, Initial Disclosure Deadline is 7/7/2020, Joint Status Report due by 7/14/2020, by Judge Richard A. Jones. (VE) (Entered: 06/15/2020)
39 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Mallory Gitt Webster for Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Webster, Mallory) (Entered: 06/15/2020)
40 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Motion for Temporary Restraining Order held on 6/12/2020 before Judge Richard A. Jones.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained

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through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.
Release of Transcript Restriction set for 9/15/2020, (DZ) (Entered: 06/17/2020)
41 PROPOSED ORDER (Unsigned) Entering a Preliminary Injunction (Stipulated) (Sharifi, Ghazal) (Entered: 06/17/2020)
42 STIPULATED ORDER ENTERING A PRELIMINARY INJUNCTION: The Court hereby ORDERS: (1) The City of Seattle, including the Seattle Police Department and any other officers, departments, agencies, or organizations under the Seattle Police Departments control (collectively, "the City"), is hereby enjoined from employing chemical irritants or projectiles of any kind against persons peacefully engaging in protests or demonstrations. (2) In the event that Plaintiffs seek relief for an alleged violation of this Order, the City must respond to the motion for relief within 24 hours. (3) Because this is a non-commercial case, the balance of hardships favors Plaintiffs, and there is no realistic likelihood of harm to the City of Seattle from enjoining its conduct, the Court waives the security bond requirement. (4) This Order will expire on 9/30/2020. (5) This Order is extendable or terminable by stipulation of the parties. Signed by Judge Richard A. Jones. (MW) (Entered: 06/17/2020)
43 ANSWER to 1 Complaint,,, by City of Seattle.(Sharifi, Ghazal) (Entered: 06/30/2020)
44 NOTICE of Appearance by attorney Melissa R Lee on behalf of Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Lee, Melissa) (Entered: 07/02/2020)
45 NOTICE of Appearance by attorney Jessica E Levin on behalf of Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Levin, Jessica) (Entered: 07/02/2020)
46 NOTICE of Appearance by attorney Robert Leslie Christie on behalf of Defendant City of Seattle. (Christie, Robert) (Entered: 07/02/2020)

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47 NOTICE of Appearance by attorney Thomas P Miller on behalf of Defendant City of Seattle. (Miller, Thomas) (Entered: 07/02/2020)
48 NOTICE of Appearance by attorney Ann E Trivett on behalf of Defendant City of Seattle. (Trivett, Ann) (Entered: 07/02/2020)
49 NOTICE of Appearance by attorney Megan Maria Coluccio on behalf of Defendant City of Seattle. (Coluccio, Megan) (Entered: 07/02/2020)
Reset Deadline: By agreement of the parties, the deadline to exchange initial disclosures is extended to 7/15/2020. (VE) (Entered: 07/06/2020)
50 JOINT STATUS REPORT signed by all parties. Estimated Trial Days: 10. (Perez, David) (Entered: 07/14/2020)
51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction, filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 7/30/2020, (Perez, David) (Entered: 07/27/2020)
52 DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
53 DECLARATION of Dusty Baker filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
54 DECLARATION of Elise Barrett filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)

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55 DECLARATION of Jessica Bonafilia filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
56 DECLARATION of Sophia Bruce filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
57 DECLARATION of Cass Bunting filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
58 DECLARATION of Cloie Chapman filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
59 DECLARATION of Alexandra Chen filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
60 DECLARATION of Colter Arnold filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
61 DECLARATION of Corinne Arnold filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why

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City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
62 DECLARATION of Kathryn Forest filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
63 DECLARATION of Jessica Butler filed by Plaintiffs Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
64 DECLARATION of Muraco Kyashna-Tocha filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
65 DECLARATION of Kira McGieson filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
66 DECLARATION of Chloe Merino filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
67 DECLARATION of Adam Oberstadt filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)

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68 DECLARATION of Renee Raketty filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
69 DECLARATION of Tyler Sill filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
70 DECLARATION of Richard Smith filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
71 DECLARATION of Sam Sueoka filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
72 DECLARATION of Jessica Trimble filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
73 DECLARATION of Joey Wieser filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
74 DECLARATION of Joshua Matney filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why

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City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
75 DECLARATION of Athena Addams filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/27/2020)
76 MINUTE ORDER entered upon the authority of Judge Richard A. Jones. No later than Wednesday, 7/29/2020, by noon, Defendant shall file a response to Plaintiffs' 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction. (VE) (Entered: 07/28/2020)
Reset Deadline: Defendant's Response to Plaintiffs' 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction is reset for 7/29/2020 by 5:00 PM. (VE) (Entered: 07/29/2020)
Set Hearing on 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction: MOTION HEARING set for 7/31/2020 at 9:00 AM before Judge Richard A. Jones. Hearing to be held via Zoom videoconference. (VE) (Entered: 07/29/2020)
77 ORDER SETTING TRIAL DATE AND RELATED DATES. Length of Trial: 10 days. BENCH TRIAL is set for 7/26/2021 at 9:00 AM in Courtroom 13106 before Judge Richard A. Jones. Joinder of Parties due by 9/30/2020, Amended Pleadings due by 1/27/2021, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 1/27/2021, Discovery completed by 3/29/2021, Dispositive motions due by 4/27/2021, Motions in Limine due by 6/28/2021, Pretrial Order due by 7/12/2021, Trial briefs, deposition designations, and trial exhibits to be submitted by 7/19/2021, by Judge Richard A. Jones. (VE) (Entered: 07/29/2020)
78 RESPONSE, by Defendant City of Seattle, to 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction. (Attachments: # 1 Proposed Order)(Christie, Robert) (Entered: 07/29/2020)
79 Amended DECLARATION of Corinne Arnold filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show

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Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/29/2020)
80 DECLARATION of Robert L. Christie filed by Defendant City of Seattle re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Christie, Robert) (Entered: 07/29/2020)
81 DECLARATION of William T.C. Neale filed by Defendant City of Seattle re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Christie, Robert) (Entered: 07/29/2020)
82 DECLARATION of Cesar Hidalgo-Landeros filed by Defendant City of Seattle re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Christie, Robert) (Entered: 07/29/2020)
83 DECLARATION of John Brooks filed by Defendant City of Seattle re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Christie, Robert) (Entered: 07/29/2020)
84 DECLARATION of David Puente filed by Defendant City of Seattle re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Christie, Robert) (Entered: 07/29/2020)
85 NOTICE of Filing Ex. A to Dec. of Christie: thumb drive of PowerPoint file in Paper or Physical Form with the Clerk's Office by Defendant City of Seattle. inre 80 Declaration. (Christie, Robert) (Entered: 07/29/2020)
86 DECLARATION of Kathryn Tewson filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/30/2020)
87 REPLY, filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab, TO RESPONSE to 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 07/30/2020)

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88 ORDER RE ORDER TO SHOW CAUSE HEARING ON JULY 31, 2020: Tomorrow's hearing will not be for oral argument; rather, the Court will discuss the best way to proceed with an evidentiary hearing. The parties should be ready to discuss the following list of non-exhaustive topics: The date of the hearing; The length of the hearing; The format of the hearing; Preferred technology to conduct the hearing; Waiver of the hearing and, in lieu, a proceeding under the affidavits as described in Peterson, 140 F.3d at 1324; Defendant's plan regarding the 1394 Body Worn Videos described in Cesar Hidalgo-Landeros's declaration (Dkt. # 82 ). Signed by Judge Richard A. Jones. (MW) (Entered: 07/30/2020)
107 RECEIPT of thumb drive re 85 Notice of Filing Paper or Physical Materials. (Placed in 1 expandable folder in Seattle Clerk's Office filing shelf) (MW) (Entered: 08/06/2020)
89 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: David Perez, Molly Tack-Hooper, Robert Chang; Def Counsel: Robert Christie, Thomas Miller; CR: Debbie Zurn; STATUS HEARING held on 7/31/2020 via Zoom videoconference. After hearing from counsel, the Court sets an evidentiary hearing to determine if Defendant is in contempt of the Court's preliminary injunction. The evidentiary hearing shall commence on August 26, 2020, at 9:00 AM, and will be conducted by Zoom videoconference. The Court will permit 5 days for this hearing, with each side having 2.5 trial days to present evidence and argument. The parties' allotted time will be tracked by the courtroom deputy. Initial witness disclosures are due 8/5/2020 and responsive witness disclosures are due 8/12/2020. Counsel are directed to meet and confer regarding the scope of production of the body worn video evidence and shall file a joint submission regarding the same no later than noon on 8/13/2020. STATUS HEARING regarding production of body worn video evidence set for 8/14/2020 at 9:00 AM before Judge Richard A. Jones via Zoom videoconference. This hearing may be stricken if the parties are able to reach agreement on the scope of production. Deadline for the parties to file joint witness and exhibit lists is 8/18/2020 by noon. Deadline for the parties to file any other written materials for the Court's consideration at the evidentiary hearing is 8/18/2020 by noon. Deadline for submission of trial exhibits via Dropbox is 8/21/2020. (VE) (Entered: 07/31/2020)

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90 ORDER RE EVIDENTIARY HEARING: Hearing (via Zoom) set for 8/26/2020 at 09:00 AM before Judge Richard A. Jones. Length of Hearing: 5 days. Initial Disclosure Deadline is 8/5/2020, Responsive Disclosure Deadline is 8/12/2020, Joint Submission Setting Forth the City's Production of Body Worn Video Evidence due by 8/13/2020 at noon, Hearing re the City's Production of Body Worn Video Evidence, Only If Parties Are Unable to Reach a Compromise set for 8/14/2020 at 09:00 AM before Judge Richard A. Jones, Joint Witness and Exhibit Lists due by 8/18/2020 at noon. The Court also instructs the parties to meet and confer about the other topics discussed at the 7/31/2020, Zoom conference. They must submit a joint statement to the Court by Tuesday, 8/4/2020. Signed by Judge Richard A. Jones. (MW) (Entered: 07/31/2020)
91 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Zoom Video Status Hearing held on 7/31/2020 before Judge Richard A. Jones.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.
Release of Transcript Restriction set for 11/2/2020, (DZ) (Entered: 08/04/2020)
92 STATEMENT re 90 Order,,,, Set Deadlines/Hearings,,, (Joint) on Procedural Matters for Evidentiary Hearing on Contempt by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab (Perez, David) (Entered: 08/04/2020)
93 DECLARATION of Dwayne Linde filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)

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94 DECLARATION of Philip Chinn filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
95 DECLARATION of Katherine Conroy filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
96 DECLARATION of Mary Eileen Hood filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
97 DECLARATION of Kay Sterner filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
98 DECLARATION of Stephen Lagree filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
99 DECLARATION of John Mitchell filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
100 DECLARATION of Dominic Thomas filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why

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City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
101 DECLARATION of Yvette Sierra Vignau filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
102 DECLARATION of Carolyn Sterner filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
103 DECLARATION of Seth Kramer filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
104 DECLARATION of Ryan Whitney filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
105 DECLARATION of Emma Wilson filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/04/2020)
106 DECLARATION of John Alan Moore filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 51 MOTION for Order to Show Cause Why City of Seattle Should Not be Held in Contempt for Violating the Preliminary Injunction (Perez, David) (Entered: 08/05/2020)
108 ORDER RE: PUBLIC ACCESS TO REMOTE PROCEEDINGS by Judge Richard A. Jones. The parties are directed to complete the

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attached Party Response to Request for Video Recording, and return it to the Court no later than 8/13/2020 by 4:00 PM. The parties are directed to email their responses to the Court's courtroom deputy. Please Note: Forms must not be electronically filed with the Court. (VE) (Entered: 08/07/2020)
109 STIPULATION AND PROPOSED ORDER (Clarification of Preliminary Injunction) by parties re 42 Preliminary Injunction,,, (Perez, David) (Entered: 08/10/2020)
110 ORDER GRANTING STIPULATED CLARIFICATION OF PRELIMINARY INJUNCTION signed by Judge Richard A. Jones. The parties' 109 STIPULATION re Clarification of Preliminary Injunction is GRANTED. Plaintiffs' 51 MOTION for Order to Show Cause is dismissed without prejudice, and the evidentiary hearing scheduled for 8/26/2020, is vacated. (VE) (Entered: 08/10/2020)
111 NOTICE of Stricken Hearing: STATUS HEARING set for 8/14/2020 at 9:00 AM is STRICKEN. (VE) (Entered: 08/10/2020)
112 DECLARATION Certifying Dissemination of Court's 8/10/2020 Stipulated Clarification of Preliminary Injunction of David Puente re 110 Order,, Terminate Motions,, Terminate Deadlines and Hearings, by Defendant City of Seattle (Sharifi, Ghazal) (Entered: 08/11/2020)
113 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Joseph M McMillan for Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (McMillan, Joseph) (Entered: 08/12/2020)
114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt), filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. Oral Argument Requested. (Attachments: # 1 Proposed Order) Noting Date 10/5/2020, (Perez, David) (Entered: 09/30/2020)
115 DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)

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116 DECLARATION of Jasper Wensnahan filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
117 DECLARATION of Joshua Servian filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
118 DECLARATION of Michael Scaturo filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
119 DECLARATION of Omari Salisbury filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
120 DECLARATION of Richard Smith filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
121 DECLARATION of Casey Martin filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
122 DECLARATION of Melissa Schade filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show

09/30/2020 09/30/2020 09/30/2020 09/30/2020 09/30/2020 09/30/2020 09/30/2020

Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
123 DECLARATION of Emily Grace Robinson filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
124 DECLARATION of Madison Lynn Haughie filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
125 DECLARATION of Ashton Eby filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
126 DECLARATION of Sean Swanson filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
127 DECLARATION of Kristi Krein filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
128 DECLARATION of Casey Karhu filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
129 DECLARATION of Alexandria Wommack filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar,

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Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
130 DECLARATION of Alexandra Chen filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
131 DECLARATION of Carter Tinney filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
132 DECLARATION of Kristin Mowery filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
133 DECLARATION of Ames Frazier filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
134 DECLARATION of Marilyn Flynn filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 09/30/2020)
135 RESPONSE, by Defendant City of Seattle, to 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt). Oral Argument Requested. (Attachments: # 1 Proposed Order)(Christie, Robert) (Entered: 10/02/2020)
136 DECLARATION of Ghazal Sharifi filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why

10/02/2020 10/02/2020 10/02/2020 10/02/2020 10/06/2020 10/14/2020
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City of Seattle Should not be Held in Contempt) (Attachments: # 1 Exhibit A-E)(Christie, Robert) (Entered: 10/02/2020)
137 DECLARATION of John Brooks filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Christie, Robert) (Entered: 10/02/2020)
138 NOTICE of Filing Exhibits A-C to Declaration of John Brooks in Paper or Physical Form with the Clerk's Office by Defendant City of Seattle. inre 137 Declaration. (Christie, Robert) (Entered: 10/02/2020)
139 DECLARATION of Captain Matt Allen filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Christie, Robert) (Entered: 10/02/2020)
RECEIPT of CD-ROM re: 137 Exhibits to the Declaration of Matthew Allen; re 138 Notice of Filing Paper or Physical Materials. (Placed on Clerk's Office filing shelf in expando folder) (PM) (Entered: 10/05/2020)
Set Hearing: STATUS HEARING set for 10/14/2020 at 10:00 AM before Judge Richard A. Jones. Hearing to be held via Zoom videoconference. (VE) (Entered: 10/06/2020)
140 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Robert Chang, Lisa Nowlin, David Perez; Def Counsel: Ghazal Sharifi, Carolyn Boies; CR: Debbie Zurn; STATUS HEARING held on 10/14/2020 via Zoom videoconference on Plaintiffs' 114 MOTION for Contempt. After hearing from counsel, the Court directs counsel to confer to determine if the parties can agree as to the scheduling and scope related to the Court's consideration of the Motion for Contempt. Joint submission, if possible, due 10/19/2020 by 3:00 PM. STATUS HEARING set for 10/20/2020 at 10:00 AM via Zoom videoconference. (VE) (Entered: 10/14/2020)
141 STATUS MEMORANDUM - Joint Submission re Scope and Scheduling Related to Court's Consideration of Plaintiffs' Motion for Contempt - by Defendant City of Seattle (Christie, Robert) (Entered: 10/19/2020)
142 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Robert Chang, Carolyn Gilbert, Molly Tack-Hooper; Def Counsel: Robert Christie;

10/22/2020
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CR: Nancy Bauer; STATUS HEARING held on 10/20/2020 via Zoom videoconference. After hearing from counsel, the Court sets forth the following briefing schedule related to Plaintiffs' 114 MOTION for Contempt: Defendant's response brief is due 11/2/2020, Plaintiffs' reply brief is due 11/9/2020, and Defendant's surreply (if any) is due 11/16/2020. MOTION HEARING set for 11/18/2020 at 9:00 AM before Judge Richard A. Jones via Zoom videoconference. By agreement of the parties, there shall be no live testimony. The Court reserves ruling on the scope and amount of video evidence to be permitted. Written order to follow. (VE) (Entered: 10/20/2020)
143 ORDER re Plaintiff's 114 MOTION for Contempt: Per the Court's instructions, the parties submitted a joint statement explaining how they would like to proceed. Dkt. # 141 . The Court has reviewed that joint statement, heard the parties' arguments, and ORDERS that the resolution of Plaintiff's (Second) Motion for Order to Show Cause Why City of Seattle Should Not Be Held in Contempt ("Motion") shall proceed as follows: Per the parties' agreement, the Court shall consider the Motion based entirely on written submissions, without any live testimony. Defendant shall file its Response to the Motion along with all supporting declarations and video/photographic evidence by 11/2/2020. Plaintiffs shall have 7 calendar days after receiving Defendant's Response to file any Reply brief and rebuttal evidence. Defendant shall have 7 calendar days after receiving plaintiffs' Reply to file any Surreply brief and evidence strictly limited to addressing only declarations from new individuals or other new evidence filed on Reply. Signed by Judge Richard A. Jones. (MW) (Entered: 10/22/2020)
144 RESPONSE, by Defendant City of Seattle, to 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt). Oral Argument Requested. (Attachments: # 1 Exhibit 1, # 2 Proposed Order)(Christie, Robert) (Entered: 11/02/2020)
145 DECLARATION of Robert L. Christie filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Attachments: # 1 Exhibit A-L)(Christie, Robert) (Entered: 11/02/2020)
146 DECLARATION of Lesley Cordner filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Attachments: # 1 Exhibit A(1)-(7), # 2 Exhibit B(1)-(42), # 3 Exhibit C(1), # 4 Exhibit D(1)-(19))(Christie, Robert) (Entered: 11/02/2020)

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147 Second DECLARATION of Captain Matthew Allen filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Attachments: # 1 Exhibit A-B)(Christie, Robert) (Entered: 11/02/2020)
148 DECLARATION of John Brooks filed by Defendant City of Seattle re 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Attachments: # 1 Exhibit A-C)(Christie, Robert) (Entered: 11/02/2020)
149 NOTICE of Filing thumb drive containing video evidence in Paper or Physical Form with the Clerk's Office by Defendant City of Seattle. inre 145 Declaration, 148 Declaration. (Christie, Robert) (Entered: 11/02/2020)
RECEIPT of Thumb Drive (Exhibits A, B, C and F)) re 145 Declaration of Robert L. Christie and 148 Declaration of John Brooks; re 149 Notice of Filing Paper or Physical Materials. (Placed on Clerk's Office filing shelf in expando file) (PM) (Entered: 11/03/2020)
150 RECEIPT of Thumb Drive (Exhibits A, B, C - submitted in.mov format and higher resolution) re 145 Declaration of Robert L. Christie; re 149 Notice of Filing Paper or Physical Materials. (Placed on Clerk's Office filing shelf in same expando folder as dkt # 149 . Copies of thumb drives routed to chambers) (PM) (Entered: 11/03/2020)
151 RECEIPT of Corrected Thumb Drive PowerPoint (Exhibit A) re: 80 Declaration Robert L. Christie re: 51 Motion for Order to Show Cause: re 85 Notice of Filing Paper or Physical Materials. (PM) Modified on 11/9/2020: Placed on Clerk's Office filing shelf in expando folder (PM). (Entered: 11/09/2020)
152 REPLY, filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab, TO RESPONSE to 114 MOTION for Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 11/09/2020)
153 Supplemental DECLARATION of Alexandra Chen filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 114 MOTION for

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11/16/2020

Contempt (Order to Show Cause Why City of Seattle Should not be Held in Contempt) (Perez, David) (Entered: 11/09/2020)
154 NOTICE of Filing Thumb Drive re video links in Paper or Physical Form with the Clerk's Office by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. inre 114 Motion for Contempt,. (Perez, David) (Entered: 11/10/2020)
155 PRAECIPE re 153 Declaration, 130 Declaration, by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab (Perez, David) (Entered: 11/10/2020)
156 NOTICE of Appearance by attorney Rachel Ayn Smith Haney on behalf of Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Haney, Rachel) (Entered: 11/12/2020)
RECEIPT of Thumb Drive re video links re: 114 Motion for Contempt; re 154 Notice of Filing Paper or Physical Materials. (Placed in expando file and routed to courtroom deputy) (PM) (Entered: 11/12/2020)
157 PRAECIPE re 146 Declaration, Exhibit D by Defendant City of Seattle (Attachments: # 1 Exhibit D(1)-(19))(Christie, Robert) (Entered: 11/16/2020)
158 TRANSCRIPT REQUEST by Plaintiffs Black Lives Matter SeattleKing County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab for proceedings held on Debbie Zurn re 140 Status Conference,,. Requesting Attorney: Rachel Ayn Smith Haney.
Posting of this Transcript Order form does not constitute an official request for transcript(s). You MUST contact the individual court reporter(s), Debbie Zurn (debbie_zurn@wawd.uscourts.gov, 206370-8504) to make payment arrangements and secure your desired delivery time. (Haney, Rachel) (Entered: 11/16/2020)
159 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Status Hearing held on 10/14/2020 before Judge Richard A. Jones.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is

11/18/2020 12/07/2020
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filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.
Release of Transcript Restriction set for 2/16/2021, (DZ) (Entered: 11/16/2020)
160 MINUTE ENTRY for proceedings held before Judge Richard A. Jones - Dep Clerk: Victoria Ericksen; Pla Counsel: Lisa Nowlin, Robert Chang, Rachel Haney; Def Counsel: Robert Christie, Thomas Miller, Ghazal Sharifi; CR: Debbie Zurn; MOTION HEARING held on 11/18/2020 via Zoom videoconference on Plaintiffs' 114 MOTION for Contempt. The Court hears argument of counsel and takes this matter under advisement. (VE) (Entered: 11/18/2020)
161 ORDER granting in part and denying in part Plaintiff's 114 Motion for Contempt: Based on the submissions of the parties, the Court HOLDS the City in civil contempt for the reasons stated above. Now that the City is held in contempt, the Court must determine the appropriate sanction. To that end, Plaintiffs shall submit a brief and proposed order explaining their proposed sanction. That brief shall not exceed six pages and shall be filed on or before 12/11/2020. Defendants may file a response brief, not to exceed six pages, and a proposed order on or before 12/18/2020. Signed by Judge Richard A. Jones.(MW) (Entered: 12/07/2020)
162 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Molly Tack-Hooper for Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (TackHooper, Molly) (Entered: 12/07/2020)
163 TRANSCRIPT REQUEST by Defendant City of Seattle for proceedings held on 11/18/2020 re 160 Motion Hearing,. Requesting Attorney: Robert Leslie Christie.
Posting of this Transcript Order form does not constitute an official

12/11/2020 12/11/2020
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request for transcript(s). You MUST contact the individual court reporter(s), Debbie Zurn (debbie_zurn@wawd.uscourts.gov, 206370-8504) to make payment arrangements and secure your desired delivery time. (Christie, Robert) (Entered: 12/09/2020)
164 MOTION for Sanctions (Contempt), filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Attachments: # 1 Proposed Order) Noting Date 12/25/2020, (Perez, David) (Entered: 12/11/2020)
165 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Zoom Status Hearing held on 11/18/2020 before Judge Richard A. Jones.
Parties have seven (7) calendar days to file with the court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript may be made remotely electronically available to the public without redaction after 90 calendar days.
Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Information regarding the policy can be found on the court's website at www.wawd.uscourts.gov.
To purchase a copy of the transcript, contact court reporter Debbie Zurn, debbie_zurn@wawd.uscourts.gov, 206-370-8504.
Release of Transcript Restriction set for 3/11/2021, (DZ) (Entered: 12/11/2020)
Set Deadline: In their recent filing (Dkt. # 164 ), Plaintiffs claimed that they are entitled to attorneys' fees related to the contempt motion.They said that they would file a petition for fees separately. So that the Court and Defendant may fully review Plaintiffs' proposed request, the Court instructs Plaintiffs to submit their petition by 12/17/2020. (VE) (Entered: 12/15/2020)
166 MOTION for Attorney Fees , filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab. (Attachments: # 1 Proposed Order) Noting Date 12/25/2020, (Perez, David) (Entered: 12/17/2020)
167 DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar,

12/17/2020
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Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 166 MOTION for Attorney Fees (Perez, David) (Entered: 12/17/2020)
168 DECLARATION of James F. Williams filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 166 MOTION for Attorney Fees (Perez, David) (Entered: 12/17/2020)
169 DECLARATION of Lisa Nowlin filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 166 MOTION for Attorney Fees (Perez, David) (Entered: 12/17/2020)
170 DECLARATION of Robert S. Chang filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 166 MOTION for Attorney Fees (Perez, David) (Entered: 12/17/2020)
171 RESPONSE, by Defendant City of Seattle, to 164 MOTION for Sanctions (Contempt). (Sharifi, Ghazal) (Entered: 12/18/2020)
172 DECLARATION of Lesley Cordner filed by Defendant City of Seattle re 164 MOTION for Sanctions (Contempt) (Sharifi, Ghazal) (Entered: 12/18/2020)
173 DECLARATION of Carolyn Boies filed by Defendant City of Seattle re 164 MOTION for Sanctions (Contempt) (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Sharifi, Ghazal) (Entered: 12/18/2020)
174 DECLARATION of Robert L. Christie filed by Defendant City of Seattle re 166 MOTION for Attorney Fees (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Christie, Robert) (Entered: 12/18/2020)
175 DECLARATION of Ghazal Sharifi filed by Defendant City of Seattle re 166 MOTION for Attorney Fees (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Christie, Robert) (Entered: 12/18/2020)
176 RESPONSE, by Defendant City of Seattle, to 166 MOTION for Attorney Fees . (Sharifi, Ghazal) (Entered: 12/18/2020)

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177 Supplemental DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 166 MOTION for Attorney Fees (Perez, David) (Entered: 12/21/2020)
178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record, filed by Defendant City of Seattle. (Attachments: # 1 Proposed Order) Noting Date 12/21/2020, (Christie, Robert) (Entered: 12/21/2020)
179 DECLARATION of Robert L. Christie filed by Defendant City of Seattle re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Attachments: # 1 Exhibit AB)(Christie, Robert) (Entered: 12/21/2020)
180 Supplemental DECLARATION of John Brooks filed by Defendant City of Seattle re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Christie, Robert) (Entered: 12/21/2020)
181 DECLARATION of Riley Caulfield filed by Defendant City of Seattle re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Christie, Robert) (Entered: 12/21/2020)
182 DECLARATION of Matthew Didier filed by Defendant City of Seattle re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Attachments: # 1 Exhibit AC)(Christie, Robert) (Entered: 12/21/2020)
183 DECLARATION of Erik Eastgard filed by Defendant City of Seattle re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Attachments: # 1 Exhibit AC)(Christie, Robert) (Entered: 12/21/2020)
184 NOTICE of Filing Exhibits B-C to Declaration of Eastgard and Exhibits B-C to Declaration of Didier in Paper or Physical Form with the Clerk's Office by Defendant City of Seattle. inre 183 Declaration, 182 Declaration,. (Christie, Robert) (Entered: 12/21/2020)

12/22/2020 12/22/2020 12/29/2020
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Set Deadlines: The Court will require Plaintiffs to respond to Defendant's 178 MOTION for Reconsideration. Plaintiffs' response due 12/29/2020, and shall not exceed 12 pages. Defendant's reply due 1/5/2021, and shall not exceed 6 pages. (VE) (Entered: 12/22/2020)
185 RECEIPT of thumb drive re 184 Notice of Filing Paper or Physical Materials. (Placed in 1 expandable folder in Seattle Clerk's Office filing shelf) (MW) (Entered: 12/23/2020)
186 RESPONSE, by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab, to 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record. (Attachments: # 1 Proposed Order)(Perez, David) (Entered: 12/29/2020)
187 DECLARATION of David A. Perez filed by Plaintiffs Black Lives Matter Seattle-King County, Alexandra Chen, Abie Ekenezar, Nathalie Graham, Muraco Kyashna-tocha, Sharon Sakamoto, Alexander Woldeab re 178 MOTION for Reconsideration re 161 Set Deadlines/Hearings,,, Order on Motion for Contempt,, and Request for Leave to Supplement the Record (Perez, David) (Entered: 12/29/2020)

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 Case 2:20-cv-00887 Document 1 Filed 06/09/20 Page 1 of 27

1

THE HONORABLE ___________________

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 BLACK LIVES MATTER SEATTLEKING COUNTY, ABIE EKENEZAR,
10 SHARON SAKAMOTO, MURACO KYASHNA-TOCHA, ALEXANDER
11 WOLDEAB, NATHALIE GRAHAM, AND ALEXANDRA CHEN,
12
Plaintiffs, 13
v. 14
CITY OF SEATTLE, 15
Defendant. 16

No. 2:20-cv-887 COMPLAINT JURY DEMAND

17

18

Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto,

19 Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen submit this

20 Complaint against Defendant City of Seattle and allege as follows:1

21

I. INTRODUCTION

22

1. This case is about the policy, practice, and custom of the City of Seattle (the

23 “City”) to allow the Seattle Police Department (“SPD”) to deploy unnecessary violence against

24 peaceful demonstrators who are speaking out against discriminatory police brutality.

25 1 The articles, pictures, videos, and other online sources cited in this Complaint are best
26 accessed by copying and pasting the cited links into a web browser.

COMPLAINT (No. ) –1
148463513.5

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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1

2. Notably, Seattle Mayor Jenny Durkan and SPD Chief Carmen Best have

2 “apologized for instances in which they said officers may have failed to deescalate tense

3 moments, used disproportionate force against demonstrators and deployed less-than-lethal

4 weapons too quickly.”2 Plaintiffs seek injunctive relief because their apologies have not

5 prevented and will not prevent the City’s ongoing violation of plaintiffs’ constitutional rights.

6

3. On May 25, 2020, George Floyd was murdered in Minneapolis, Minnesota by the

7 police. Mr. Floyd, a Black man, was accused of a non-violent offense. During his arrest, Mr.

8 Floyd fell to the ground, handcuffed and restrained. Minutes later, for no discernible reason, a

9 police officer placed his knee—and the weight of his body—on Mr. Floyd’s neck as Mr. Floyd

10 lay pinned to the ground.

11

4. For nearly nine excruciating minutes, the officer pressed his knee into Mr. Floyd’s

12 neck as Mr. Floyd struggled to breathe and pleaded for both mercy and his mother. Rather than

13 allow Mr. Floyd to breathe, other officers held his legs or stood by, watching as Mr. Floyd began

14 to die. Among Mr. Floyd’s last words were, “please, please, please, I can’t breathe.”

15

5. Mr. Floyd died at the scene, a victim of excessive use of force by the police.

16

6. Mr. Floyd was not the first victim of such force. His final words echo those

17 spoken by Eric Garner in 2014, before he died at the hands of a New York police officer who put

18 him in a chokehold during an arrest for a non-violent offense: “I can’t breathe.” Like Mr. Floyd,

19 Mr. Garner struggled to breathe as police officers at the scene watched him die.

20

7. More recently, Breonna Taylor, a Black woman, was shot eight times and killed

21 in March 2020 by three plainclothes Louisville police officers who entered her home in the

22 middle of the night to execute a no-knock warrant.

23

8. The words “I can’t breathe” have become a rallying cry for those seeking racial

24 justice and an end to discriminatory police practices.

25 2 Man Shot on Capitol Hill After Gunman Drives Car into George Floyd Protest, Seattle
26 Times (June 7, 2020), https://www.seattletimes.com/seattle-news/crime/man-shot-after-gunman-
drives-car-into-capitol-hill-protesters/.

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9. Despite a global pandemic, groups of demonstrators throughout the country and

2 the world, including in Seattle, have gathered to protest the systemic injustices perpetrated by

3 law enforcement against Black people and other people of color.

4

10. In response to these protests, the SPD has exercised an overwhelming and

5 unconstitutional use of force to discourage these protesters from exercising their constitutional

6 rights. On an almost nightly basis, the SPD has indiscriminately used excessive force against

7 protesters, legal observers, journalists, and medical personnel. For example, SPD has repeatedly

8 sprayed crowds of protesters with tear gas and other chemical irritants—including as recently as

9 Monday, June 8, just days after the City pledged a 30-day moratorium on the use of tear gas.

10

11. The City of Seattle has its own history of excessive force used by its police

11 department against people of color. Some of the incidents of excessive force led the City to

12 acknowledge some of the problems after the Department of Justice investigated the City and

13 concluded that reasonable cause existed to believe that SPD engages in a pattern or practice of

14 using unnecessary or excessive force in violation of the Fourth Amendment to the United States

15 Constitution and 42 U.S.C. § 14141.3

16

12. The purpose and effect of this excessive force described in Paragraph 10 has been

17 to restrict, frustrate, and deter protesters from exercising their rights under the First Amendment 18 to the United States Constitution to peacefully assemble, petition for redress of grievances, 19 exercise freedom of speech, and exercise freedom of the press—and the Fourth Amendment to 20 be free from unwarranted seizures by the government.

21

13. Plaintiffs have been, and want to continue to be, part of the protest movement to

22 protect black lives. They want to participate in demonstrations against police brutality in Seattle

23 without being exposed to the less-lethal weapons regularly deployed by the SPD against

24

25 3 The Settlement Agreement and Consent Decree and other supporting documents can be
26 found here: https://www.seattle.gov/police/about-us/professional-standards-bureau/settlement-
agreement-history.

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1 protesters as a method of crowd control. Plaintiffs bring this action to restrain the City of Seattle

2 from continuing to respond to peaceful protest with unconstitutional and indiscriminate force.

3 A. 4

SPD’s “Less-Lethal” Weapons and “Crowd Control” Arsenal 14. The weapons SPD uses for “crowd control” purposes during demonstrations,

5 sometimes referred to as “non-lethal” weapons, are more appropriately called “less-lethal”

6 weapons, as many government entities and human rights NGOs have recognized.4

7

15. The “less-lethal” weapons the SPD deployed at protests this month include

8 chemical irritants, batons, kinetic impact projectiles, and weapons intended to stun with light and

9 sound.

10

16. The chemical irritants released on protesters by the SPD this month include tear

11 gas (“CS gas”) and oleoresin capsicum spray (“OC” or “pepper” spray).

12

17. SPD has deployed chemical irritants both by targeting specific protesters with

13 handheld devices and by launching canisters of chemical irritants into a crowd from a distance,

14 releasing the irritants indiscriminately in every direction.

15

18. SPD has also hit protesters with batons and shot kinetic impact projectiles such as

16 rubber bullets at protesters.

17

19. In addition, SPD has deployed flash-bang grenades and blast balls against

18 protesters. When these weapons detonate, they generate loud noise and bright light. Blast balls

19 also release chemical irritants.

20

20. Tear gas can be lethal. It is known that high-dose exposure in an enclosed space

21 can “lead to the development of airway edema, non-cardiogenic pulmonary edema, and possibly

22 respiratory arrest.”5 Though this kind of exposure in an enclosed space is rare, more generally,

23

4 U.S. Dep’t of Just., Office of the Inspector General, Evaluation and Inspections

24 Division, Review of the Department of Justice’s Use of Less-Lethal Weapons (May 2009),

https://oig.justice.gov/reports/plus/e0903/final.pdf; United Nations Guidance on Less Lethal

25 Weapons in Law Enforcement (2020),

https://www.ohchr.org/Documents/HRBodies/CCPR/LLW_Guidance.pdf.

26

5 Toxic Syndrome Description, Riot Control Poisoning, Centers for Disease Control and

Prevention, https://emergency.cdc.gov/agent/riotcontrol/agentpoisoning.asp.

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1 tear gas exposure can have more severe effects on those with asthma such that it can trigger a

2 fatal asthma attack.6 The death on May 30 of a 22-year-old protester in Ohio who had asthma

3 and who passed away after being sprayed with tear gas is currently being investigated.7

4

21. Pepper spray can be lethal. Between 1990 and 1995, at least 61 in-custody deaths

5 followed police use of pepper spray on suspects.8 A 1994 study of 63 in-custody fatalities

6 concluded that pepper spray was a contributing cause of death in 2 cases of people with asthma.9

7 Though this study found that positional asphyxia and other causes contributed to the deaths of

8 61, the study cautioned that the precise role of pepper spray in the deaths could not be

9 determined.10

10

22. Even when not directly lethal, exposure to tear gas has been shown to increase the

11 risk of developing acute respiratory illnesses. A study conducted in 2012 of 6,723 U.S. Army

12 recruits demonstrated that recruits who were exposed to tear gas had a significantly higher

13 chance of getting an acute respiratory illness such as influenza, bronchitis, and pneumonia than

14 those recruits who weren’t exposed.11

15 B. Heightened Risks of COVID-19 Transmission from Less-Lethal Weapons

16

23. People who have been exposed to chemical irritants are more vulnerable to

17 COVID-19, an acute respiratory illness.

18

19

6 How Tear Gas and Pepper Spray Affect the Body, Healthline,

20 https://www.healthline.com/health-news/how-tear-gas-and-pepper-spray-affect-the-body#What-

to-know-about-tear-gas.

21

7 Jim Letizia, Columbus Investigating Claims Protester Died After Being Exposed to

Tear Gas, https://www.wcbe.org/post/columbus-investigating-claims-protestor-died-after-being-

22 exposed-tear-gas.

8 Mark I. Pinsky, If Pepper Spray Isn’t Lethal, Why All the Deaths?, L.A. Times (June

23 18, 1995), https://www.latimes.com/archives/la-xpm-1995-06-18-mn-14572-story.html.

9 Office of Justice Programs, U.S. Dep’t of Just., The Effectiveness and Safety of Pepper

24 Spray (Apr. 2003), https://www.ncjrs.gov/pdffiles1/nij/195739.pdf.

10 Id. at 11.

25

11 Joseph J. Hout, et al., o-Chlorobenzylidene Malonotrile (CS Riot Control Agent)

Associated Acute Respiratory Illnesses in a U.S. Army Basic Combat Training Cohort, 179

26 Military Medicine 7:793 (2014),

https://academic.oup.com/milmed/article/179/7/793/4259353#101149356.

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24. When people with COVID-19 are exposed to chemical irritants during a

2 demonstration, this exposure may also increase the likelihood that COVID-19 will spread to

3 other people because of the immediate effect both tear gas and pepper spray have on those who

4 are exposed. By design, part of the incapacitating effect of tear gas and pepper spray is that both 5 can cause lung irritation that makes you cough, spit, and/or vomit.12 In addition, people exposed 6 to tear gas or pepper spray suffer from eye irritation that leads them to rub their eyes. Coughing, 7 spitting, vomiting, and rubbing eyes can all lead to the spread of viruses.

8

25. A petition signed by over 2,000 health professionals—led by doctors at the

9 University of Washington—expresses precisely these concerns.13 Infectious disease physician

10 Rachel Bender Ignacio states, “Exposure to chemical irritants certainly makes the airways more 11 susceptible to infection . . . . If people are coughing from any of these chemical irritants, then 12 that increases their risk of spreading [COVID-19] to fellow protesters and to law enforcement as 13 well.”14

14

26. Indeed, Dr. Jeffrey Duchin, the head of King County Public Health Department,

15 has publicly denounced the use of “respiratory irritants” like tear gas as a crowd control method

16 because of the “potential to increase COVID-19 spread.”15

17

18

19

20

12 Facts About Riot Control Agents Interim Document, Centers for Disease Control and

Prevention, https://emergency.cdc.gov/agent/riotcontrol/factsheet.asp.

21

13 Open letter advocating for an anti-racist public health response to demonstrations

against systemic injustice occurring during the COVID-19 pandemic, available at

22 https://drive.google.com/file/d/1Jyfn4Wd2i6bRi12ePghMHtX3ys1b7K1A/view (last visited June

7, 2020). See also John Ryan, Quit the Tear Gas, Doctors Tell Cops. It Might Exacerbate the

23 Pandemic, KUOW (June 4, 2020), https://www.kuow.org/stories/disease-specialists-to-cops-

stop-the-tear-gas.

24

14 John Ryan, Quit the Tear Gas, Doctors Tell Cops. It Might Exacerbate the Pandemic,

KUOW (June 4, 2020), https://www.kuow.org/stories/disease-specialists-to-cops-stop-the-tear-

25 gas.

15 Alex Bartick, Mayor Durkan Announces Temporary Ban on the Use of Tear Gas by

26 SPD at Demonstrations, KOMO News (June 5, 2020) (quoting Dr. Jeffrey Duchin of Public

Health, Seattle and King County).

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27. The use of other less-lethal weapons that cause panic and injury also create the

2 potential for increased COVID-19 spread by compressing large groups of people as protesters

3 and bystanders attempt to flee from the use of force.

4

28. Seeking medical care for injuries caused by police presents another opportunity

5 for COVID-19 spread, as injured people and people delivering medical care come into close

6 physical contact with one another.

7

II. PARTIES

8

29. Each of the Plaintiffs wishes to participate in demonstrations against police

9 brutality without being subject to less-lethal force by the SPD. Without an injunction restraining

10 the City from using less-lethal force to control protesters, each of these Plaintiffs will be forced

11 to choose between exercising their constitutional rights and avoiding exposure to dangerous less-

12 lethal weapons.

13

30. Plaintiff Black Lives Matter Seattle-King County is a nonprofit organization

14 operating in Seattle, Washington.

15

31. Plaintiff Abie Ekenezar is a Washington resident who attended protests every day

16 from May 29 through June 6, 2020, either in Seattle or Tacoma.

17

32. Plaintiff Sharon Sakamoto is a Washington resident who would like to attend the

18 Seattle protests but has not done so out of fear from the negative health effects of tear gas and

19 other chemical agents the SPD has been deploying.

20

33. Plaintiff Muraco Kyashna-tochá is a Washington resident who attended protests in

21 Seattle every day from May 29 through June 6, 2020.

22

34. Plaintiff Alexander Woldeab is a Washington resident who attended protests in

23 Seattle every day from May 30 through June 6, 2020, except for June 4.

24

35. Plaintiff Alexandra Chen is a Washington resident who attended protests in

25 Seattle on May 30, 2020, and June 1 through June 6, 2020.

26

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36. Defendant the City of Seattle (“the City”) is a municipality incorporated in the

2 State of Washington.

3

III. JURISDICTION AND VENUE

4

37. The Court has subject matter jurisdiction over this case under 28 U.S.C. § 1331

5 because this action presents federal questions and seeks to redress the deprivation of rights under

6 the First and Fourth Amendment to the U.S. Constitution and pursuant to 42 U.S.C. § 1983.

7

38. Venue is proper in this District under 28 U.S.C. § 1391(e)(1) because the events

8 giving rise to the claims took place in the Western District of Washington.

9

IV. FACTUAL ALLEGATIONS

10 A. 11

Protesters Demonstrating against Police Brutality Are Met with Brutality by the SPD

39. After the killing of George Floyd, demonstrators began to gather around the City 12

of Seattle on a daily and nightly basis to protest police brutality against Black Americans. 13

40. With limited exceptions, these protesters have been overwhelmingly peaceful. 14

But nearly every night, City law enforcement tactics to deter these protests have escalated in 15

severity. The SPD arrested protesters and used force on many others who were not arrested. 16

SPD has hit protesters with batons and shot them with rubber bullets, released chemical irritants, 17

and thrown “blast balls” and flash-bang grenades into crowds, often with little or no warning. 18

41. SPD’s actions have been consistent with the directive of a State trooper deployed 19

with the SPD: don’t “kill” protesters but “hit them hard.”16 20

42. Simply put, in response to protests against police brutality, the police chose to 21

engage in brutality. 22

23

24 16 Washington State Patrol apologizes for officer’s ‘Don’t kill them, but hit them
25 hard’ instruction regarding Seattle protesters, Seattle Times (June 3, 2020), https://www.seattletimes.com/seattle-news/washington-state-patrol-apologizes-after-officer-tells-
26 his-team-dont-kill-them-but-hit-them-hard-in-reference-to-seattle-protesters/ (with embedded video).

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1 B. 2

Timeline of Excessive Police Force at Protests 43. On Friday, May 29, the first day of protests in Seattle, SPD officers in riot gear

3 responded to protesters by deploying chemical irritants and flash-bang devices to disperse

4 crowds and arresting others.17

5

44. On Saturday, May 30, SPD officers continued their use of chemical irritants and

6 flash-bang devices on protesters and engaged in other violent tactics, including pepper-spraying

7 a child and punching a man as he was being held on the ground.18

8

45. The violence by SPD continued as the weekend wore on. On Sunday, May 31,

9 the SPD again deployed flash-bang devices, OC spray, and blast balls against protesters and

10 militarized the streets of downtown Seattle.19

11

46. In response to police brutality during the first weekend of protests (May 29-31),

12 the Seattle Office of Police Accountability received about 12,000 individual complaints of

13

14

17 Sparked by death of George Floyd, Seattle protestors clash with police, Seattle

15 Times (May 29, 2020), https://www.seattletimes.com/seattle-news/protesters-break-windows-

clash-with-police-in-downtown-seattle/.

16

18 Seattle Protest Updates: The city reacts to the death of George Floyd, Seattle

Times (May 30, 2020), https://www.seattletimes.com/seattle-news/protest-updates-as-the-

17 country-reacts-to-the-death-of-george-floyd-follow-the-latest-developments-in-seattle-and-

elsewhere/ (SPD “faced questions for its tactics, including the use of flash bangs as it dispersed

18 people Saturday, and for a videotaped incident Friday night of at least one officer punching a

man as he was held on the ground”); Seattle mayor, police face questions over response to

19 George Floyd protests, downtown turmoil, Seattle Times (May 30, 2020),

https://www.seattletimes.com/seattle-news/politics/seattle-mayor-police-face-questions-over-

20 response-to-george-floyd-protests-downtown-turmoil/ (“Durkan and Police Chief Carmen Best

faced questions over the city’s response to the turmoil, as some nonviolent protesters described

21 escalations by officers early in the afternoon” including multiple reports that “officers would

throw a flash bang or tear gas just randomly into the crowd” and that officers without warning

22 shot pepper spray into the faces of protesters, including a young girl).

19 Lynda V. Mapes, Seattle demonstrations vent anguish at death of George Floyd

23 and more, for a ‘grieving nation’ Seattle Times (May 31, 2020),

https://www.seattletimes.com/seattle-news/seattle-demonstrations-vent-anguish-at-death-of-

24 george-floyd-and-more-for-a-grieving-nation/ (“There were a couple of tense moments, with

police setting off flash bangs and pepper spray on Fourth Avenue, but the protests were mostly

25 peaceful as of Sunday evening”); see also Seattle area protest updates: City reacts to George

Floyd killing, Bellevue imposes curfew amid protests, Seattle Times (May 31, 2020),

26 https://www.seattletimes.com/seattle-news/seattle-protest-updates-on-day-2-of-curfew-the-city-

reacts-to-the-death-of-george-floyd/.

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1 abusive conduct by SPD. For all of 2019, the Office of Police Accountability received just 928

2 complaints.20

3

47. Among the ten most common incidents reported in these complaints are “[p]epper

4 spraying a young girl”; “[p]epper spraying peaceful protesters”; and “[t]he use of flash-bangs,

5 including causing a significant thumb injury.”21

6

48. On Monday, June 1, SPD unleashed tear gas, OC spray, and blast balls on largely

7 peaceful protesters in Capitol Hill after failing to give dispersal orders to allow for protesters to

8 leave the area.22

9

49. Video shows police escalating the confrontation by grabbing a protester’s

10 umbrella just before deploying chemical irritants into the crowd.23

11

50. On Tuesday, June 2, SPD followed the same playbook, again deploying tear gas,

12 OC spray, blast balls, flash-bang grenades, and rubber bullets, causing protesters to flee in fear.24

13

51. The SPD’s tactics have been so excessive that the City’s own director for the

14 Office of Civil Rights, Mariko Lockhart, wrote an open letter stating that she had “heard from

15 other City leadership and employees that they fear for their personal safety, not because of other

16

17

18

20 See Seattle Office of Police Accountability, Office of Police Accountability processing

12,000 complaints after weekend demonstrations (June 1, 2020),

19 http://www.seattle.gov/Documents/Departments/OPA/PressReleases/06-01-20_OPA-Press-

Release-Following-Demonstrations.pdf.

20

21 Id.

22 Seattle area protests: Police declare a riot as demonstrators gather for fourth day to

21 call for police accountability, Seattle Times (June 1, 2020),

https://www.seattletimes.com/seattle-news/george-floyd-protests-continue-in-seattle-area-

22 demonstrators-expected-to-gather-for-fourth-day-to-call-for-racial-justice/ (“videos of the

officers spraying the crowd and deploying flash bangs quickly spread on social media; many of

23 those who shared them said the footage showed the police were escalating the confrontation”).

23 See id. (“[a] police officer at the front of the crowd can be seen grabbing a protester’s

24 umbrella just before other officers deploy pepper spray into the crowd”); Declaration of Omari

Salisbury (“Salisbury Decl.”) ¶ 3 (June 1 video).

25

24 See Salisbury Decl. ¶ 4 (June 2 video starting at 0:04:00); Seattle Police Department

Blotter, Timelines of Police Responses to Demonstrations (June 7, 2020 1:51 p.m.),

26 https://spdblotter.seattle.gov/2020/06/07/timelines-of-police-responses-to-demonstrations/

(stating that SPD used pepper spray, blast balls, flash-bangs, and tear gas at 11:36 p.m.).

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1 protesters but because of the police.”25 Ms. Lockhart went on to call for the City to immediately

2 “[c]ease the use of flash grenades, rubber bullets, and tear gas against community protesters.”

3

52. Those excessive tactics have also led to condemnation by many City, County, and

4 State elected officials. In fact, on June 7, over two dozen leaders signed an open letter

5 condemning “the police tactics used in daily protests,” and made clear they are “concerned that

6 the response of the Seattle Police Department (SPD) is escalating the conflict in the streets of

7 Seattle, particularly in Capitol Hill and in communities of color, with their inappropriate use of

8 force.”26

9

53. This letter urges the City “to change [its] tactics,” and makes clear that “continued

10 violence by the police will only polarize this necessary conversation in unproductive ways,” and

11 “to end the damage that SPD has caused by overreaction to mostly peaceful protests.”27 The

12 letter goes on to make the following observations about the harmful effects of SPD’s use of force

13 against protesters:

14

This harms the relationship between law enforcement and the

15

community, harms our city, and harms law enforcement officers and their families in the form of emotional trauma. Physical

16

violence is being perpetrated against members of our community by SPD. Emotional trauma and extraordinary racial aggression is

17

being inflicted. Constitutional rights are at risk. Police tactics are exacerbating health risks amidst a devastating respiratory

18

pandemic. The public health crisis of law enforcement anti-black violence is so extreme as to have eclipsed the previous disease that

19

gripped our city.

20

It is well-documented that peaceful protests are being targeted by law enforcement and turned into violent conflict. No amount of

21

secondary illegal activity has happened that warrants this response. We will have time in the future to discuss necessary reforms for

22

future such conflicts, but for now, the violence must stop. Deploying police in riot gear to form a wall of officers positioned

23 25 Letter from M. Lockhart to Seattle Office of Civil Rights (June 5, 2020), available at
24 https://www.documentcloud.org/documents/6938155-Lockhart-Letter.html. 26 Chase Burns, Washington Electeds to Mayor Durkan and Chief Best: Direct SPD to
25 “Change Their Tactics Immediately,” The Stranger (June 7, 2020), available at
thestranger.com/slog/2020/06/07/43862996/seattle-electeds-to-mayor-durkan-and-chief-best26 direct-spd-to-change-their-tactics-immediately (last viewed June 7, 2020).
27 Id.

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against peaceful protesters is not conducive to de-escalation and

healing; a moratorium on tear gas that is then replaced with pepper

2

spray is not de-escalation.28

3

54. The letter is signed by Seattle City Councilmembers Lorena Gonzalez, Teresa

4 Mosqueda, Tammy Morales, and Lisa Herbold, and they are joined by King County

5 Councilmembers Girmay Zahilay, Joe McDermott, and Rod Dembowski and several state

6 legislators.

7

55. A majority of the Seattle City Council has come out against SPD’s tactics and use

8 of force against protesters.

9

56. The backlash from the public and from local leaders is no surprise because it is

10 apparent from the extensive available video footage of the protests that the SPD is not using less-

11 lethal weapons out of a need to defend themselves or others against imminent harm, or even to

12 prevent significant property damage. Instead, the City is using these tools and tactics to suppress

13 demonstrations against the police.

14

57. On Saturday, June 6, 2020, police repeatedly deployed flash-bang grenades and

15 pepper spray canisters against protesters, including a protester in a wheelchair.29

16

58. The SPD’s attacks on those documenting the protests is not limited to protesters.

17 In fact, accredited journalists have also reported being gassed or subjected to flash-bang devices

18 by the SPD simply for being present and documenting the protest for the public. For instance, on

19 June 1, and NBC News correspondent, Jo Ling Kent, was live on air when she was hit by a flash-

20 bang grenade fired by the SPD.30 That same reporter recalled that “[s]everal people were hit

21 with rubber bullets in the arm, in the back and in the head.”31

22

23

28 Id.

24

29 See Salisbury Decl. ¶ 5 (June 6 video).

30 A video of this incident is available online. See Maura Hohman, NBC News’ Jo Ling

25 Kent hit by flash-bang grenade at Seattle protest live on air, Today.com (June 2, 2020),

available at https://www.today.com/news/nbc-news-jo-ling-kent-hit-flash-bang-grenade-seattle-

26 t183067 (last visited June 7, 2020).

31 Id.

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59. On June 6, a KOMO news reporter was hit in the leg with a flash-bang as he was

2 reporting from the front of a protest in Capitol Hill. According to his account, before the police

3 began using “flash bangs to disperse the crowd,” the “[p]rotesters hadn’t thrown or done

4 anything it seems to provoke this [police reaction].”32

5

60. Eyewitnesses have reported that SPD has also appeared to target medics on site to

6 provide medical assistance to injured protesters.

7

61. On June 6, one medic was wearing a shirt that clearly and objectively identified

8 him as a medical professional on the scene to assist protesters with medical issues. This medic

9 was repeatedly targeted with blast balls and OC spray, preventing him from administering

10 medical assistance to those affected by the SPD’s unconstitutional use of this weapon.

11 C. 12

SPD’s Claimed Voluntary Ban on Tear Gas 62. On Friday, June 5, 2020, Seattle Mayor Jenny Durkan and SPD Chief Carmen

13 Best jointly announced that SPD would stop using tear gas on protesters for the next 30 days.33

14 The City made clear that this “temporary ban only applies to tear gas” and that SPD would

15 continue to use “flash-bang grenades, pepper spray and other crowd-control tools and tactics.”34

16

63. On Saturday, June 6, the SPD responded to a peaceful protest in the Seattle

17 neighborhood of Capitol Hill by unleashing violence to disperse protesters exercising their

18 constitutional rights. The SPD did so by throwing blast balls and canisters of OC spray at the

19 crowd to indiscriminately gas the entire crowd.

20

64. Various videos of the incident show that the police began throwing blast balls and

21 gas into the crowd not because of any imminent threat to their public safety, but because they

22 wanted a large crowd to collectively move back five feet. Setting aside the logistical

23 32 Cole Miller (KOMO News), Twitter (June 6, 2020 7:41 p.m.),
24 https://twitter.com/ColeMillerTV/status/1269459358288494592. 33 See Lewis Kamb and Daniel Beekman, Seattle mayor, police chief agree to ban use of
25 tear gas on protesters amid ongoing demonstrations, Seattle Times (June 5, 2020), available at
https://www.seattletimes.com/seattle-news/watchdog-groups-to-seattles-mayor-and-police-chief26 spd-should-stop-using-tear-gas-on-demonstrators/ (last visited June 7, 2020).
34 Id.

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1 impossibility of having a large crowd move back together five feet, the protesters’ overall delay

2 or reluctance in moving back did not justify the gratuitous and excessive force that the police

3 employed. The police faced no threat of physical harm to themselves, others, or property.35

4

65. On June 7, Chief Best did not disavow the extreme police violence of June 6,

5 responding only that SPD would be considering changes to its “footprint,” “format,” and

6 “posture.”36

7

66. On Sunday, June 7, the City broke its own voluntary 30-day ban on tear gas, two

8 days after announcing it. Sunday night and into the early morning on Monday, June 8, SPD

9 made heavy use of flash-bang grenades and canisters of tear gas and OC spray to suppress a

10 demonstration near 11th Avenue and Pine Street.37

11 D. 12

The City’s Illegal Actions Caused and Are Causing Injuries to Plaintiffs 67. The City has all but acknowledged SPD’s use of excessive force against

13 protesters: on June 4, the City withdrew its motion asking Judge James L. Robart to find SPD in

14 compliance with its constitutional-policing mandates in a 2012 consent decree with the federal

15 government.

16

68. Plaintiffs have suffered and will continue to suffer injury as described below

17 unless and until SPD’s unlawful conduct is enjoined. 18

19

20

21

35 For videos of this incident, see Chase Burns and Rich Smith, SPD Disperses Crowd

with Blast Balls, “Chemical Agents,” on Eighth Day of Protests Against Police Brutality,

22 https://www.thestranger.com/slog/2020/06/06/43857405/spd-disperses-crowd-with-blast-balls-

chemical-agents-pepper-spray-on-eight-day-of-protests-against-police-brutality (last visited June

23 7, 2020).

36 Press Conference with SPD Chief Carmen Best at 1:06, June 7, 2020,

24 https://www.facebook.com/Q13FOX/videos/252009629404175/.

37 See Salisbury Decl. ¶ 6 (June 7 video, starting at 1:29:00); Seattle Police Department,

25 Twitter (June 7, 2020, 12:18 a.m.), https://twitter.com/SeattlePD/status/1269891637448019968;

Jemima McEvoy, Seattle Police Use Tear Gas Against Protestors Despite City Ban, Forbes

26 (June 8, 2020), available at https://www.forbes.com/sites/jemimamcevoy/2020/06/08/seattle-

police-use-tear-gas-against-protestors-despite-city-ban/#791c43415b4b.

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1

69. Demonstrations protesting police brutality and the killing of Black people in

2 America are planned to continue this week, including a statewide general strike and silent march

3 on Friday, June 12.

4

70. Without an injunction restraining their unconstitutional use of force, SPD will

5 continue to deploy the same abusive and illegal tactics it has deployed over the last ten days,

6 threatening the constitutional rights and physical safety of Plaintiffs and others who have been,

7 and will continue to be, harmed by SPD’s protest response tactics.

8

1. Black Lives Matter Seattle-King County

9

71. Black Lives Matter Seattle-King County (“BLMSKC”) is a grassroots nonprofit

10 organization focused on the empowerment and liberation of Black people and other people of

11 color through advocacy and direct action.

12

72. Until recently, BLMSKC has not called on its members to join Seattle protests

13 because of the heightened risk to communities of color from COVID-19. But many of BLMSKC

14 issued a “Protestor Safety Guide” to assist those who wished to participate in protests

15 notwithstanding the potential health risks.38

16

73. BLMSKC’s safety guide cautions protesters to “[p]repare for pepper spray, mace,

17 and tear gas.”39 BLMSKC’s leaders are aware that the use of chemical agents like tear gas and 18 OC spray may increase susceptibility to, and spread of, COVID-19. This concern about the 19 heightened danger that the use of chemical agents presented to protesters was one of the reasons 20 that had led its leaders to not call on its members to join Seattle protests to this point.

21

74. BLMSKC has called for a general strike and silent march in Seattle on Friday,

22 June 12.40

23

24

38 Black Lives Seattle, Protestor Safety Guide, https://blacklivesseattle.org/protest-

safety-guide/.

25

39 Black Lives Seattle, Protestor Safety Guide, https://blacklivesseattle.org/protest-

safety-guide/.

26

40 E.g., Rich Smith, Black Lives Matter Seattle Calls for a Statewide Silent March

Friday, The Stranger (June 6, 2020),

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75. BLMSKC aims to reduce the threat of COVID-19 transmission by encouraging

2 protesters to remain silent. BLMSKC hopes that police will be less likely to deploy weapons

3 against marchers who are exercising their right to express themselves symbolically rather than

4 vocally.

5

76. BLMSKC’s leaders and members nonetheless fear that law enforcement will meet

6 future protests with continued violence.

7

77. The time and effort BLMSKC has expended due to the City’s conduct has

8 reduced its capacity to plan events and programming consistent with its mission, curtailing the

9 organization’s capacity to fulfill its mission of effecting community change through peaceful

10 demonstrations.

11

78. Two of BLM’s board members participated in Seattle protests this month when

12 SPD used OC spray, and they experienced the negative effects of it. BLM has called on SPD to

13 stop its use of all chemical agents in response to protesters.

14

2. Abie Ekenezar

15

79. Abie Ekenezar is a veteran of the United States Army and works at the

16 Department of Veterans Affairs.

17

80.

18

81.

19 brutality.

20

82.

Ms. Ekenezar has asthma and a spinal disability. On May 30 and June 6, Ms. Ekenezar joined the protests in Seattle against police
Her spinal disability required her at times to use a knee scooter while protesting,

21 which limits her mobility.

22

83. During the protest on the evening of May 30, Ms. Ekenezar was peacefully

23 protesting—alongside other peaceful protesters—when SPD officers unleashed a chemical agent

24

25

26 https://www.thestranger.com/slog/2020/06/06/43857190/black-lives-matter-seattle-calls-for-astatewide-silent-march-friday.

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1 on the crowd, including on Ms. Ekenezar. The dispersal of the chemical agent was not localized

2 and went far beyond the immediate area where it was deployed.

3

84. During her time serving in the military, Ms. Ekenezar participated in tear-gas

4 drills and is familiar with the effects of tear gas. Based on that experience, she believes that the

5 chemical agent the SPD used on her and other protesters on May 30 was tear gas.

6

85. The tear gas stung Ms. Ekenezar’s eyes and triggered her asthma.

7

86. SPD officers also deployed flash-bang grenades in Ms. Ekenezar’s presence at the

8 Westlake protest on May 30. Ms. Ekenezar also saw an SPD officer use mace on a young girl at

9 the protest.

10

87. On June 6, Ms. Ekenezar participated in the Capitol Hill protest against police

11 brutality.

12

88. Although protesters were being peaceful, SPD started asking protesters to move

13 back from the police barricade. Because the crowd was large, people could not move back.

14

89. The chemical agent again stung Ms. Ekenezar’s eyes and caused them to water. It

15 also caused Ms. Ekenezar to develop a cough that lasted at least through the following day.

16

90. Ms. Ekenezar plans to attend other protests scheduled in Seattle this week, and

17 she is worried not only about again being subjected to chemical agents deployed by the SPD or

18 others acting at its direction but also about being unable to escape the police brutality because of

19 her limited mobility.

20

3. Sharon Sakamoto

21

91. Sharon Sakamoto is a Japanese American woman who survived internment as a

22 child during World War II.

23

92. Because of her history as a survivor of internment and deep racial hostility, Ms.

24 Sakamoto is deeply committed to advancing civil rights and racial justice.

25

93. Ms. Sakamoto is a retired attorney who provided community services and legal

26 aid primarily to the underserved Japanese American community.

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94. Ms. Sakamoto had planned to participate in the recent Seattle protests—even in

2 light of the COVID-19 public-health crisis—but decided not to once she learned of SPD’s use of

3 chemical irritants.

4

95. Ms. Sakamoto was frightened away from joining the protests because of the

5 SPD’s use of violence against the protesters in Seattle.

6

96. If SPD stopped its use of tear gas, OC spray, blast balls, and flash-bang grenades,

7 Ms. Sakamoto would attend a protest.

8

4. Alexander Woldeab

9

97. Alexander Woldeab is a videographer, graphic designer, and Seattle resident.

10

98. Mr. Woldeab has joined the protests against police brutality in Seattle every day

11 from May 30 through June 6.

12

99. On May 30, Mr. Woldeab participated in the protest at Westlake in downtown

13 Seattle. He and his partner arrived at the protest at about 3:00 p.m. and joined the peaceful

14 protest organized by Not This Time and Andre Taylor, whose brother Che Taylor was killed by

15 SPD officers in 2016.

16

100. At about 3:45 p.m., Mr. Woldeab heard loud sounds that he understood to be

17 flash-bang grenades.

18

101. A few minutes later, as Mr. Woldeab and other protesters were walking with their

19 hands up and peacefully chanting “hands up, don’t shoot,” the SPD deployed tear gas.

20

102. Mr. Woldeab experienced burning eyes and shortness of breath from the tear gas.

21

103. On June 1, Mr. Woldeab and his partner again joined one of the protests in

22 Seattle, this time in the Capitol Hill neighborhood.

23

104. At about 9:00 p.m. that evening, as Mr. Woldeab and his partner were returning to

24 the area near SPD’s police barricade, they were immediately met with flash-bang grenades and

25 tear gas. Mr. Woldeab received no warning that SPD was going to deploy those weapons.

26

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1

105. The tear gas caused Mr. Woldeab to temporarily lose his sight and feel like he

2 was suffocating. Shortly after the incident, Mr. Woldeab and his partner were able to make their

3 way to an aid table where a civil medic doused their eyes with milk and water.

4

106. On June 2, Mr. Woldeab again attended the protest in the Capitol Hill

5 neighborhood. That evening, he witnessed the SPD again use flash-bang grenades and tear gas

6 against protesters.

7

107. Despite being subjected to chemical agents and flash-bang grenades by the SPD

8 and experiencing significant anxiety as a result, Mr. Woldeab plans to join in the upcoming

9 Seattle protests about police brutality.

10

5. Muraco Kyashna-tochá

11

108. Muraco Kyashna-tochá is a 60-year-old woman who participated in the protests

12 every day from May 30 through June 6.

13

109. On June 1, Ms. Kyashna-tochá attended a protest in the Capitol Hill neighborhood

14 in which she went to the front of the police barricade created by law enforcement. From her

15 vantage point, the protests appeared peaceful and non-violent.

16

110. At about 9:00 p.m. that evening, SPD officers began using OC spray on the

17 crowd, including Ms. Kyashna-tochá. Police also deployed flash-bang grenades and tear gas.

18

111. Ms. Kyashna-tochá did not hear the officers issue any verbal warnings that they

19 planned to deploy chemical irritants.

20

112. The chemical irritants affected Ms. Kyashna-tochá’s sight and required her to

21 seek medical attention in an area of the protest informally designated for medical assistance. She

22 had to immediately remove her mask that she was wearing to protect against COVID-19, as it

23 was soaked in OC spray. She had to take a two-hour shower when she returned home that night

24 to get the irritants off her body.

25

26

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113. Ms. Kyashna-tochá has participated in over 100 protests, but she has never

2 participated in a protest in which the police deployed chemical irritants without first warning the

3 crowd.

4

114. Ms. Kyashna-tochá plans to protest police brutality again in Seattle.

5

6. Alexandra Chen

6

115. Alexandra Chen is a first-year student at Seattle University School of Law and

7 lives in the Capitol Hill neighborhood of Seattle.

8

116. Ms. Chen attended a protest in downtown Seattle in the afternoon on Saturday,

9 May 30 and was subject to SPD’s use of tear gas.

10

117. Ms. Chen was marching along with other protesters when the group stopped in

11 front of the SPD headquarters at the intersection of Fifth Avenue and Cherry Street.

12

118. Although Ms. Chen estimates approximately five to ten of the group of hundreds

13 was throwing objects like water bottles at the police line in front of SPD headquarters, the rest of

14 the protesters were peaceful and calm.

15

119. SPD deployed flash-bang grenades at the group, causing protesters to panic and

16 flee in fear. Ms. Chen slipped twice while trying to flee the grenades.

17

120. About 30 seconds later, the SPD deployed tear gas. The tear gas caused her eyes

18 and skin to burn, and she had trouble seeing and breathing. The gas became trapped under the

19 mask Ms. Chen was wearing to protect against exposure to COVID-19, causing even greater

20 irritation to her skin. Ms. Chen located an off-duty medic who flushed her eyes with saline

21 solution.

22

121. Ms. Chen experienced some form of skin irritation for several days.

23

122. Ms. Chen did not hear the SPD give any dispersal order or warning that they

24 would be deploying weapons against the crowd.

25

26

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123. On June 1, Ms. Chen joined the protest in the Capitol Hill neighborhood.

2 Because she feared being gassed again by the SPD, she did not participate at the front of the

3 protest near the police barricade.

4

124. The SPD again deployed flash-bang grenades and tear gas. Ms. Chen again

5 experienced effects from the tear gas, including burning eyes and skin irritation.

6

125. After she heard that the SPD again deployed chemical agents and flash-bang

7 grenades on protesters the night of June 6, she headed to the protest scene to stand in solidarity

8 with other protesters. She arrived about 15 minutes after the SPD released a chemical agent and

9 saw protesters coughing and in great discomfort.

10

126. Although Ms. Chen’s anxiety about protesting has increased because of the SPD’s

11 actions, Ms. Chen plans to continue joining the protests against police brutality in Seattle.

12

7. Nathalie Graham

13

127. Nathalie Graham is a journalist with The Stranger.

14

128. On May 30, Ms. Graham “saw a group of protesters peacefully kneeling in the

15 intersection as a speaker addressed them,” but the police used so much tear gas up the street that

16 these protesters who “had been completely peaceful,” were “also impacted by the tear gas.”

17 Declaration of Nathalie Graham (“Graham Decl.”), ¶ 4. Ms. Graham wanted to continue

18 reporting, but the gas was so powerful she had to leave the scene. Id. That same day, she

19 observed law enforcement throw a flash-bang grenade into a crowd without warning and with no

20 provocation. Id. at ¶ 6.

21

129. Ms. Graham was “shocked and frightened by the consistently unprovoked,

22 aggressive use of force by law enforcement officers on multiple different groups of peaceful

23 protesters.” Id. at ¶ 8. She “saw no evidence that any of these severe crowd-dispersal tactics

24 were warranted, and there was never any warning before they were deployed.” She had to stop

25 reporting on the scene because she feared for her safety—not because of the protesters, but

26 because of the police tactics being deployed against the protesters. Id. at ¶ 9. “There was tear

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1 gas everywhere, flash-bang grenades exploding in the street, and I was anxious that the police

2 would further escalate their tactics.” Id.

3

130. A similar incident occurred on June 2, 2020, when Ms. Graham was trying to

4 report on the unfolding scene at 11th and Pine. The sheer amount of gas that the SPD deployed

5 against the peaceful protesters forced her to retreat to The Stranger’s office and close the

6 windows. “The ground below was so immersed in gas that [she] couldn’t see the road. Some of

7 it began to seep in to [her] office, despite the closed windows, and [she] began to cough.”

8

131. The City’s actions have had a profound impact on Ms. Graham’s role as a

9 journalist. “Witnessing the aggressive, indiscriminate deployment of chemical agents and flash-

10 bang grenades by police at these protests has made me reconsider how I approach my

11 assignments. There is a new element of trepidation, anxiety, and fear to my experience of being

12 a journalist. I am determined to assert my rights and do my job, so I will continue reporting—

13 but I would not be surprised if other journalists felt that their ability report from the ground was

14 significantly impaired by these law enforcement tactics. They are deeply disturbing.”

15 E. 16

The City’s Policy, Practice, and Custom 132. The violations of Plaintiffs’ First and Fourth Amendment rights are a direct result

17 of the City’s policy, practice, and custom of authorizing SPD to use less-lethal weapons to

18 control and suppress protests.

19

133. Mayor Jenny Durkan and Police Chief Carmen Best are final decision-makers

20 with respect to authorization of the use of force against protesters.

21

134. SPD policymakers including Mayor Durkan and Chief Best have acted with

22 deliberate indifference to the constitutional rights of protesters and would-be protesters by

23 authorizing, both explicitly and implicitly, the use of less-lethal force against protesters who do

24 not pose any safety threat; by failing to properly train, supervise, and discipline SPD officers

25 regarding appropriate use of force against protesters; and by failing to rectify the SPD’s

26 unconstitutional custom of using less-lethal force to control and suppress demonstrations.

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135. After the killing of George Floyd, both Mayor Durkan and Chief Best have

2 publicly authorized the use of less-lethal force for “crowd control” at protests.

3

136. Both Mayor Durkan and Chief Best have received ample notice that the SPD is

4 using less-lethal force against protesters to control and suppress demonstrations in the absence of

5 any imminent threat to safety, including 12,000 complaints about the SPD in one weekend,

6 condemnation from City Council members, and widely publicized videos and firsthand accounts

7 circulated through the local, state, and international press.

8

137. Despite receiving ample notice that SPD officers were using less-lethal force to

9 control and suppress demonstrations in the absence of any immediate threat to safety, Mayor

10 Durkan and Chief Best failed to take action sufficient to remedy the ongoing violations of

11 protesters’ constitutional rights by SPD officers, including by failing to train, supervise, or

12 discipline SPD officers or issue corrective policies to prevent further violations.

13

138. They have continued to authorize the use of less-lethal force to control

14 demonstrations even while acknowledging that the majority of protesters have been peaceful.

15 On May 31, for example, Mayor Durkan noted that “[f]or most of [May 30], people came and

16 they were peaceful as they expressed their grief, as they built community, as they expressed their

17 anger and demanded greater justice.”

18

139. In addition, Mayor Durkan and Chief Best, in apologizing for the conduct of SPD

19 officers, as much as admitted that officers “used disproportionate force against demonstrators

20 and deployed less-than-lethal weapons too quickly.”41

21

V. FIRST CAUSE OF ACTION

22

Violation of the First Amendment

23

140. The City’s policy, practice, and custom of using less-lethal weapons to control

24 and suppress demonstrations has deprived Plaintiffs of their rights under the First Amendment to

25 41 Man Shot on Capitol Hill After Gunman Drives Car into George Floyd Protest, Seattle
26 Times (June 7, 2020), https://www.seattletimes.com/seattle-news/crime/man-shot-after-gunman-
drives-car-into-capitol-hill-protesters/.

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1 the United States Constitution, and the chilling effect is stopping Plaintiffs from exercising the

2 First Amendment rights which they had otherwise planned to exercise in the immediate future.

3

141. The SPD’s use of less-lethal force against protesters can reasonably be expected

4 to chill a reasonable person from engaging in activity protected by the First Amendment.

5

142. Indeed, the SPD’s use of less-lethal force against protesters has had the purpose

6 and the effect of suppressing large, continuous protests.

7

143. The City’s policy, practice, and custom of using less-lethal weapons to control

8 and suppress demonstrations is not a reasonable regulation of the time, place, or manner of

9 Plaintiffs’ and the Plaintiff Class’s First Amendment protected activity.

10

144. Upon information and belief, the City’s authorization of the use of less-lethal

11 force against protesters was motivated by the viewpoint being expressed by the demonstrators.

12

145. The City has acted with deliberate indifference to the First Amendment rights of

13 Plaintiffs and the Plaintiff Class.

14

VI. SECOND CAUSE OF ACTION

15

Violation of the Fourth Amendment

16

146. The use of less-lethal weapons to control and suppress demonstrations in the

17 absence of an immediate safety threat constitutes excessive force in violation of the Fourth

18 Amendment, and the facts here show that the use of excessive force is stopping Plaintiffs from

19 exercising their constitutional rights they otherwise planned to exercise.

20

147. The City’s policy, practice, and custom of allowing the SPD to deploy less-lethal

21 weapons to control and suppress demonstrations in the absence of an immediate safety threat

22 reflects deliberate indifference to protesters’ rights under the Fourth Amendment to be free from

23 excessive force.

24

VII. PRAYER FOR RELIEF

25

148. WHEREFORE, Plaintiffs pray for the following relief:

26

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A. An order temporarily restraining the City and all agencies under its direction and

2

from which it has requested assistance with regard to the protests from further

3

violating the First and Fourth Amendment rights of Plaintiffs by using less-lethal

4

weapons to control and suppress demonstrations;

5

B. An order preliminarily enjoining the City and all agencies under its direction and

6

from which it has requested assistance with regard to the protests from further

7

violating the First and Fourth Amendment rights of Plaintiffs by using less-lethal

8

weapons to control and suppress demonstrations;

9

C. An order permanently enjoining the City and all agencies under its direction and

10

from which it has requested assistance with regard to the protests from further

11

violating the First and Fourth Amendment rights of Plaintiffs by using less-lethal

12

weapons to control and suppress demonstrations;

13

D. A declaration that the City has violated the First and Fourth Amendment rights of

14

Plaintiffs by using less-lethal weapons to control and suppress demonstrations;

15

E. For judgment against the City for Plaintiffs’ costs of suit, including Plaintiffs’

16

reasonable attorney fees;

17

F. For such other relief as the Court may deem just and proper.

18

19

20

21

22

23

24

25

26

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1 DATED: June 9, 2020
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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By: s/ David A. Perez David A. Perez, WSBA No. 43959 s/ Joseph M. McMillan Joseph M. McMillan, WSBA No. 26527 s/ Mallory Gitt Webster Mallory Gitt Webster, WSBA No. 50025 s/ Carolyn Gilbert Carolyn Gilbert, WSBA No. 51285 s/ Nitika Arora Nitika Arora, WSBA No. 54084 s/ Heath Hyatt Heath Hyatt, WSBA No. 54141 s/ Paige L. Whidbee Paige L. Whidbee, WSBA No. 55072
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Fax: 206.359.9000 E-mail: DPerez@perkinscoie.com E-mail: JMcMillan@perkinscoie.com E-mail: MWebster@perkinscoie.com E-mail: CGilbert@perkinscoie.com E-mail: NArora@perkinscoie.com E-mail: HHyatt@perkinscoie.com E-mail: PWhidbee@perkinscoie.com
By: s/ Molly Tack-Hooper Molly Tack-Hooper, WSBA No. 56356 s/ Nancy L. Talner Nancy L. Talner, WSBA No. 11196 s/ Lisa Nowlin Lisa Nowlin, WSBA No. 51512 s/ Breanne Schuster Breanne Schuster, WSBA No. 49993 s/ John Midgley John Midgley, WSBA No. 6511
American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 Telephone: (206) 624-2184 E-mail: mtackhooper@aclu-wa.org E-mail: talner@aclu-wa.org E-mail: lnowlin@aclu-wa.org E-mail: bschuster@aclu-wa.org
Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

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COMPLAINT (No. ) – 27
148463513.5

E-mail: jmidgley@aclu-wa.org By: s/ Robert S. Chang Robert S. Chang, WSBA No. 44083 Fred T. Korematsu Center for Law and Equality Ronald A. Peterson Law Clinic Seattle University School of Law 1112 E. Columbia Street Seattle, WA 98122 Telephone: 206.398.4025 Fax: 206.398.4077 E-mail: changro@seattleu.edu Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tocha, Alexander Woldeab, Nathalie Graham, and Alexandra Chen
Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000

 
 Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 1 of 28

1

The Honorable Richard A. Jones

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

9 BLACK LIVES MATTER SEATTLE-KING COUNTY, ABIE EKENEZAR, SHARON
10 SAKAMOTO, MURACO KYASHNATOCHA, ALEXANDER WOLDEAB,
11 NATHALIE GRAHAM, AND ALEXANDRA CHEN,
12 Plaintiffs,
13 vs.
14 CITY OF SEATTLE,
15 Defendant.
16

No. 2:20-CV-00887 RAJ
THE CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER

17

The City of Seattle (“City”) respectfully requests that this Court deny Plaintiffs’ Motion for

18 Entry of a Temporary Restraining Order, and states the following:

19

INTRODUCTION

20

Since the murder of George Floyd, this country is witnessing unprecedented levels of calls

21 to action to support black lives. These calls have been joined and amplified by all elected City leaders

22 in Seattle. This City has a long, albeit imperfect, history of supporting the right of its people to

23 peacefully protest and demand change. The City supports the people’s right to speak, to amplify

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 1

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 2 of 28

1 black voices, and to demand change, and has not and does not intend to interfere with those rights.

2 Demonstrations continue in the City, including one scheduled for the very day of this Court’s hearing

3 on the Plaintiffs’ TRO request. The City has adapted to the last two weeks of protests, resulting in

4 peaceful demonstration consistently for the last four days and for the majority of the last eight.

5 Plaintiffs’ proposed TRO is not necessary to ensure that peaceful demonstrations continue, and

6 Plaintiffs fail to meet the essential elements necessary to meet the stringent standards required for a

7 TRO. It is important to note that even with the standing issues present here, the City’s first instinct

8 was and remains to work towards a voluntary agreement with Plaintiffs on the City’s use of crowd

9 management tactics which retain the ability to use them only when needed to protect individuals

10 from physical harm consistent with the Orders entered in Portland and Denver. Further, while this

11 brief provides facts regarding violence directed against officers, it should be clear that the City’s

12 focus on preventing physical harm is also taken with protesters’ safety as a key

13 consideration. Because Plaintiffs cannot meet the stringent standards for entry of a TRO, the Motion

14 should be denied.

15

PROCEDURAL BACKGROUND AND FACTUAL CONTEXT

16

On June 9, 2020, Plaintiffs filed a Complaint seeking injunctive relief and monetary

17 damages. (Dkt. 1). That same night, Plaintiffs sought a TRO that is the subject of this Response.

18 (Dkt. 6).

19

I. SPD Policy and Federal Oversight.

20

SPD’s use-of-force policy and practices have been subject to extensive federal oversight

21 since the City voluntarily entered into a Consent Decree in 2012 to address allegations by the U.S.

22 Department of Justice’s that SPD was engaging in a pattern or practice of excessive force. United

23 States v. City of Seattle, Civ. No. 12-1282 (WD WA). The Consent Decree imposes extensive

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 2

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 3 of 28

1 requirements relating to, among other things, SPD’s use-of-force policy and training, as well as the

2 reporting and investigation of all force used SPD officers. Id. Dkt. 3-1, ¶¶ 69-129. The federal court

3 overseeing the Consent Decree and the court-appointed Monitor approved an overhaul to SPD’s use-

4 of-force policy and training throughout 2014 and 2015 (id. dkt. 115, 153, 168, 199) and continue to

5 approve regular updates and revisions to those policies (id. at 225, 447, 509).

6

SPD’s use of force policy is publicly available on the Department’s website.1 Under this

7 policy “[o]fficers shall only use objectively reasonable force, proportional to the threat or urgency

8 of the situation, when necessary, to achieve a law enforcement objective.” Seattle Police Manual

9 (SPM) Title 8.000-POL-4. The policy sets out four key principles to guide officers:

10

• Reasonableness. The reasonableness of force depends on “the totality of circumstances

known by the officer at the time of the use of force”—not “the 20/20 vision of hindsight.”

11

SPM 8.050.

• Necessity. Force may be used only in the absence of “reasonably effective alternative[s].”

12

Id.

• Proportionality. “To be proportional, the level of force applied must reflect the totality of

13

circumstances surrounding the immediate situation, including the presence of an imminent

danger to officers or others.” Officers “should assess and modulate the use-of-force as

14

resistance decreases.” Id.

• De-escalation. Officers must attempt de-escalation tactics when safe and feasible.

15

“[O]fficers shall attempt to slow down or stabilize the situation so that more time, options

and resources are available for incident resolution.” The policy identifies de-escalation

16

techniques, such as creating distance, cover, [or] concealment” and “using verbal techniques”

to gain compliance.” SPM 8.000-POL-2 & 8.100.

17

In addition to these principles, force is expressly prohibited in some circumstances. For 18

example, officers are prohibited from using force as a means of retaliation or against individuals 19

who only orally confront officers. SPM 8.200-POL-2. Separate sub-sections of the policy address 20

OC Spray and Blast Balls. SPM 8.300-POL-5 & 8.300-POL-10. In the crowd management setting, 21

22 23 1 http://www.seattle.gov/police-manual/title-8

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 3

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 4 of 28

1 when feasible, officers must not deploy OC Spray or Blast balls until a dispersal order has been

2 issued to the crowd, the crowd has been given a reasonable amount of time to comply, and a

3 supervisor has authorized the deployment. SPM 14.090-POL-9(b) (OC Spray) & 8.300-POL-10(4)

4 (Blast Balls).

5

The SPD Policy Manual authorizes the use of a less-lethal tool called a 40-mm launcher,

6 which discharges polymer bolts with a sponge tip. SPM 8.300-POL-11. CS gas (tear gas) is not

7 mentioned in the SPD Manual. As with any use of force, the deployment of OC Spray, Blast Balls,

8 and the 40-mm launcher must be reasonable, necessary, and proportional. SPM 8.300-POL-5(3),

9 8.300-POL-10(3), 8.300-POL-11(7).

10

In addition to its use-of-force policy, SPD also has a specific policy addressing crowd

11 management.2 The court overseeing the Consent Decree, the Monitor, and the U.S. Department of

12 Justice approved SPD’s Crowd Management Policy on February 2, 2017. United States v. City of

13 Seattle, Civ. No. 12-1282, Dkt. 363. SPD gave the Seattle Community Police Commission

14 opportunities for notice and comment and incorporated several of the Commission’s proposed

15 revisions. In developing the policy, SPD also consulted with national experts on crowd management.

16 The policy authorizes the Incident Commander of a crowd management event to direct the use of

17 OC Spray and Blast Balls to disperse the crowd under specific circumstances. SPM 14.090-POL-

18 9(b). The policy directs that, “[w]hen feasible, officers shall avoid deploying blast balls and OC

19 spray in the proximity of people who are not posing a risk to public safety or property.” Id. In

20 addition, “officers may make individual decisions to deploy OC Spray or Blast Balls,” if the crowd

21

22

23 2 Available at http://www.seattle.gov/police-manual/title-14---emergency-operations/14090--crowd-management

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 4

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 5 of 28

1 management situation involves violent activity, for any of the following three purposes: self-defense,

2 defense of someone else, or to prevent significant destruction of property.” 14.090-POL-10.

3

The Seattle Community Police Commission (“CPC”) also guided development of the SPD

4 crowd management policies. Beginning summer of 2015, CPC engaged with SPD, the Department

5 of Justice, and members of the Monitoring Team concerning both the crowd management policy and

6 overlapping policies concerning use of force. The CPC’s involvement in reviewing and revising

7 these policies is reflected in the redlines they provided to drafts of the policy – the majority of which,

8 as reflected in the policy as approved by the Court, were incorporated. (Boies Dec.).

9

A fundamental goal of the Consent Decree was to engrain in SPD processes for iterative

10 review and reform of policies, training, and practice to ensure that the department stays current with

11 law, changing demands, and best practices as they emerge. In other words, policies will – and should

12 – evolve over time as lessons are learned and experience drives insight. Over the past eight years,

13 SPD has been committed to ensuring that its policies balance the reality of police operations with

14 the voices of all at the table – including the CPC, OPA, and DOJ – while recognizing that, ultimately,

15 the federal court overseeing the Consent Decree has the final say. In light of recent events, the City

16 does not take the position that SPD’s policy cannot be improved upon, but argues that Plaintiffs’

17 attempt to circumvent this careful, thoughtful process with this injunctive action could be harmful.

18

II. George Floyd Demonstrations

19

As noted above, the Seattle demonstrations continue to this date. Information from events is

20 still being collected, investigated, and processed. The Office of Police Accountability is conducting

21 its own investigations into specific complaints of policy violations, while the Office of Inspector

22 General and the Community Police Commission will conduct systemic assessments of the

23 demonstrations and SPD’s management. Likewise, the federal monitor and the Department of Justice

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 5

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 6 of 28

1 will review the events unfolding consistent with the requirements of the Consent Decree. The facts

2 below were collected from available reports and information at this time, necessitating the short

3 TRO response turn-around time.

4

Beginning May 28, 2020, national outrage spread over the death of George Floyd, resulting

5 in mass demonstrations nationwide, but particularly in Minneapolis. See Elfrink, Tim et al.,

6 “Protests, fires rage through the night in Minneapolis,” available at:

7 https://www.washingtonpost.com/nation/2020/05/28/minneapolis-protests-george-floyd-death/

8 (May 29, 2020, last accessed June 10, 2010). While events unfolded nationally, demonstrations

9 began in Seattle on May 29, 2020. (Mahaffey Dec. at ¶ 6). At that time, as it does for all major

10 events, SPD mobilized the Seattle Police Operations Center (“SPOC”) and planned for staffing and

11 managing the demonstrations in the City. In the course of managing these fluid and dynamic events,

12 SPD received reliable intelligence from other agencies of intent to destroy buildings in Seattle. (Id.).

13

SPD’s priorities for the managing the events beginning on May 29th and continuing through

14 the present have remained consistent. SPD’s first objective was to provide for the safety of the

15 general public, demonstration participants, spectators, first responders, and other participant’s

16 general safety, while facilitating the free speech rights under the First Amendment, during this state-

17 wide state of emergency due to Covid-19. SPD also will take enforcement action in addressing

18 violent crimes committed against persons, or in the face of significant property damage, while

19 ensuring arrests for such crimes are carried out in a manner that is safe and effective and in

20 accordance with training and law. Within these events, SPD also seeks to deter criminal activity,

21 protect public and private property with a significant uniformed presence of officers, and, as

22 required, minimizing the disruption to traffic through the use of traffic diversion. (Id. at ¶ 7). In so

23 managing these and other crowd management events, SPD does not send sworn personnel to all

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 6

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 7 of 28

1 protests or demonstrations. Determinations about when sworn personnel are assigned, and how many

2 officers are assigned, depends on a variety of factors, but the size of the demonstration is a key factor

3 in that decision. (Id.at ¶ 8).

4

The night of May 29, 2020, a number of participants in the demonstrations engaged in

5 violence. There was property damage to the City, civilians and officers were hit with rocks and other

6 items, incurring injury. (Id. at ¶ 12); see also King5 broadcast from May 29, 2020, available at

7 https://www.youtube.com/watch?v=9u6FyINlFvc (last accessed June 10, 2020).

8

On May 30, 2020, demonstrators marched peacefully for much of the day until violence

9 ensued in the afternoon. See Chief Best update and summary of May 30, 2020 events, available at:

10 https://spdblotter.seattle.gov/2020/05/31/chiefs-statement-on-may-30th-protests-downtown/; see

11 also “Timeline of Events on May 30, 2020,” available at: 12 https://spdblotter.seattle.gov/2020/06/01/timeline-of-events-on-may-30th-2020/.3 There were

13 significant arson events, assaults on civilians and officers, as well as wide-spread looting and

14 property destruction. (Id. at ¶ 13). By mid-day Sunday, May 31st, hundreds of buildings and

15 businesses were damaged. At least 8 cars were burned and additional vehicles were damaged.

16 Community members and officers incurred injury.

17

On May 31, 2020, Patrol Chief Mahaffey requested authorization from Chief Best to enable

18 patrol to use CS Gas in the necessary event of crowd disbursement provided that its use was

19

20 3 It is important to note that the department will generate after-action reports and that dedicated Force Review Boards will examine each crowd management event and every use of force, whether ordered
21 by the incident commander or used by an individual officer. There are hundreds of hours of body worn camera evidence to review. Additionally, the Office of Police Accountability will be
22 independently reviewing complaints, which as noted in plaintiffs’ pleading, number in the thousands. Finally, the Office of the Inspector General will be systemically reviewing the policies
23 and procedures of the Seattle Police in this context. As such, all of this information is preliminary and may change as the robust systems of review examine these events in granular detail.

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 7

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 8 of 28

1 otherwise consistent with SPD policy. (Mahaffey Dec. ¶ 14). This was authorized by Chief Best.

2 (Id.). Beginning May 31, 2020, much of the demonstration focus shifted between downtown to the

3 area around the East Precinct. While demonstrations were largely peaceful, specific incidents of

4 officer injuries occurred, as officers continued to be hit with rocks, bottles, OC spray, fireworks, and

5 other projectiles. (Mahaffey Dec. ¶ 15; Truscott Dec.).

6

Largely peaceful demonstrations were interrupted by specific instances of unrest on June 1,

7 2020 and June 2, 2020. (Mahaffey Dec., ¶ 16). There were several explosions (suspected fireworks)

8 being deployed in the crowd. (Truscott Dec). Officers issued several dispersal orders that were not

9 heeded. Id. June 1, 2020 was the “umbrella” night referenced by Plaintiffs, where officers deployed

10 less lethal force by use of a chemical irritant. (Id). On June 2, 2020, Officers continued being hit by

11 bottles, rocks, and other projectiles during otherwise peaceful demonstrations. Officers also had

12 lasers pointed at their eyes and were hit by projectiles coming from rooftops/above-ground during

13 these days. (Id.).

14

From June 3, 2020 through June 5, 2020, demonstrators were concentrated near the East

15 Precinct. (Mahaffey Dec., ¶ 19). While largely peaceful with greater barrier space between officers

16 and demonstrators, Officers still incurred injuries from projectiles. (Truscott Dec.). There were

17 minimal arrests and deployment of less lethal tools. (Id.). On June 5, 2020, SPD issued a

18 departmental directive prohibiting the use of CS gas except the following circumstances: “Where

19 SWAT is on-scene, consistent with Manual Section 14.090(4), SWAT will follow all department

20 policies and procedures regarding the use of specialty tools, to include the use of CS gas, in life-

21 safety circumstances and consistent with training. In such instances, and until further notice, any

22 deployment must be approved by the Chief or the Chief’s designee.” (Mahaffey Dec. ¶ 21).

23

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 8

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 9 of 28

1

June 6, 2020 was a largely peaceful protest day until conflict arose when demonstrators were

2 not retreating from the police barricade around 7:30 p.m. (Truscott Dec). Plaintiffs’ Declarant Chase

3 Burns

captured

some

portion

of

this

scene

at:

4 https://twitter.com/chaseburnsy/status/1269460156548411392?s=20 (last accessed, June 11, 2020).

5

At, at around 7:22, the crowd of demonstrators approached and started to push the line of

6 officers back 15 then 20 feet. SPD wanted to reestablish the line before officers were pushed farther.

7 Several unheeded announcements were made before SPD moved forward to reestablish the line.

8 Members of the crowd then began to throw items at officers and tried to take fencing from SPD,

9 which resulted in OC spray and blast balls being deployed. SPD officers continued to be hit by glass

10 bottles, fireworks, and improvised explosives. Multiple officers were injured and some required

11 medical treatment by the Seattle Fire Department. After that encounter, officers were reportedly hit

12 by various projectiles such as bottles, and had several lasers and strobe lights directed at their eyes.

13 (Mahaffey Dec. ¶ 23; Truscott Dec.).

14

On June 7, 2020, at around 10:10 p.m., the crowd near the East Precinct broke fencing to use

15 as weapons. See (6/7) https://spdblotter.seattle.gov/2020/06/07/timelines-of-police-responses-to-

16 demonstrations/; (Mahaffey Dec., ¶ 24). Concurrently, about 20 individuals possessing shields,

17 helmets, and gas masks attempted to create a disturbance, while the crowd advanced slowly. Id..

18 Several specific warnings and dispersal orders were given to the crowd to cease advancing. Id. SPD

19 received a report of a white male individual in possible possession of a gun in his front pocket. Id.;

20 Crowd continued to advance, while some members flashed lights into officers’ eyes. Id. A physical

21 disturbance developed in the front of the crowd between demonstrators. Id. Demonstrators continued

22 to throw items at National Guard and officers – including one un-lit Molotov cocktail and a water

23 bottle filled with chemical irritants. Id. SPD continued to advise crowds to move back. Id. The

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 9

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 10 of 28

1 crowds began to block 13th and Pine with rocks, boulders, and trash bins – which was the designated

2 safe entry/exit point for SPD. Id.; (Mahaffey Dec). The crowd brought wooden shields with nails in

3 the front of the line. OC and blast balls were deployed. Id. Continued dispersal orders were given,

4 while officers were being hit with “large amounts” of fireworks, bottles, and projectiles causing

5 officer injury. Id.. Concurrently, the crowd began to surround officers from three sides continuing

6 to hit the officers with fireworks and bottles, while there was a report of a man with a gun in the

7 area. Id. Just after midnight on June 8, 2020, CS gas was authorized and deployed, dispersing the

8 crowd for some time. Id. Demonstrators stayed in the area. Officers were still hit with bottles and

9 other projectiles, other reports of armed individuals were made, and there were several dumpster and

10 bonfires in the area. Id.

11

During the day on June 8, 2020, SPD opened the area around the East Precinct for

12 demonstrators, boarding up the precinct and reducing police presence in the area. (Mahaffey Dec.,

13 ¶ 26). There has not been any deployment of crowd control measures since that date, despite daily

14 demonstrations.

15

III. Plaintiffs’ Individualized Allegations and Experiences

16

In their Complaint and Declarations, Plaintiffs each allege unique demonstration

17 experiences, each impacting their position in bringing this instant motion and their position in the

18 lawsuit. The City prepared the following charts assessing Plaintiffs’ allegations in conjunction with

19 their request for a TRO. The first chart reflects each day beginning with the first demonstration date

20 identified by Plaintiffs’ through the day before the filing of this Response – and whether either

21 Plaintiffs allege and/or SPD used the crowd management tools Plaintiffs seek to enjoin.

22

23

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 10

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 11 of 28

1

DATE# USE OF CROWD MANAGEMENT

TOOLS SOUGHT TO BE ENJOINED

2

ALLEGEDLY USED?

Fri May 29

Yes

3

May 30

Yes

May 31

Yes

4

June 1

Yes

June 2

Yes

5

June 3

NO

6

June 4 Fri June 5

NO NO

7

June 6

Yes

June 7

Yes

8

June 8

Yes (but no Pls

present)

9

June 9

June 10

None used* None used*

10 # For purposes of this chart, the date refers to a 24-hour period beginning at 8 a.m. on the date in

question.

11 * See Mahaffey Decl.

12 The second chart summarizes Plaintiffs’ Complaint and Declaration allegations by category.

13 PLAINTIFFS PROTESTED WITHOUT INJURY OF ANY KIND ON ALMOST ALL DAYS

Plaintiff

Number of protests

Number of

Indicated Intent to

14

attended starting May 29 Days Injury Continue Protesting

(unknown re June 9 & 10) alleged + ^

15 Abie Ekenezar

4 – 6

2

Yes

(protests in Tacoma on

16

weekdays but Seattle “on

17 Sharon Sakamoto

weekends”) 0

0

Only if crowd

management tactics

18

limited

Alexander

7

19

Woldeab

2

Yes

Alexandra Chen

7

2

Yes

20

Muraco

8 or 9

1

Yes

Kyashna-Tocha Complaint at ¶33, ¶108

21 Nathalie Graham

8

2

Yes

22

+ Chart does not include use of crowd management tools plaintiffs allegedly saw deployed against others

23

^ For the purposes of this chart alone, an alleged physical symptom (e.g. coughing, but not being aware of use of less lethal tool through senses of sight taste or smell) was classified a claimed injury.

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 11

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 12 of 28

1

2

The City also attempted to cross-reference some Plaintiffs’ declarations with the time-

3 stamped information from the SPD blotter of events occurring concurrent with the complained of

4 force incidents. (Boies Dec., Ex 2). These charts reveal that Plaintiffs’ experiences were snapshots

5 in a large string of fast-moving unfolding events.

6

LEGAL STANDARD

7

A TRO is an “extraordinary and drastic remedy.” Mazurek v. Armstrong, 520 U.S. 968, 972

8 (1997). TROs “should be restricted to serving [its] underlying purpose of preserving the status quo

9 and preventing irreparable harm just so long as is necessary to hold a hearing, and no longer.”

10 Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438–39 (1974). “[T]he standards for issuance

11 of a temporary restraining order are at least as exacting as those for a preliminary injunction.”

12 Pohlman v. Hormann, 2014 WL 5425502 *1 n.1 (D. Or. Oct. 20, 2014) (citing Los Angeles Unified

13 Sch. Dist. v. United States Dist. Court for the Cent. Dist. of Cal., 650 F.2d 1004, 1008 (9th Cir.

14 1981)). “Plaintiffs bear the burden of proving each one of the [four] elements.” Klein v. City of San

15 Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). “A plaintiff must do more than merely allege

16 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened

17 injury as a prerequisite to preliminary injunctive relief.” Caribbean Marine Servs. Co. v. Baldridge,

18 844 F.2d 668, 674 (9th Cir. 1998). Plaintiffs fail to meet this standard.

19

ARGUMENT

20

I. Without waiving objections or its right to a full hearing at a later date, the City’s offer to

stipulate to entry of a TRO with modified language as detailed below.

21 The City’s proposed language is narrow and consistent with orders from other district courts

22 from around the country addressing identical subject matter areas. (Sharifi Dec., ¶ 10-13, Ex. 9 - 11).

23 Upon receiving Plaintiff’s proposed TRO, the City notified counsel that it would agree to stipulate to

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 12

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 13 of 28

1 a modified Temporary Restraining Order that, like those in Denver and Portland, attempts to better

2 balance constitutional rights and the public safety obligations faced by the City and its police. In the

3 below, subtractions from Plaintiffs’ proposed Temporary Restraining Order language is in strike through;

4 additions in italics.

5

The City of Seattle, including the Seattle Police Department and any other officers, departments, agencies, or organizations acting within the

6

Seattle Police Department’s jurisdiction or under the Seattle Police Department’s control (collectively, “the City”), is hereby enjoined

from employing chemical weapons or projectiles of any kind against

7

persons engaging in peaceful protests or demonstrations. This

injunction includes: (1) any chemical irritant such as and including CS

8

Gas (“tear gas”) and OC Gas (“pepper spray”) and (2) any projectile

such as and including flash-bang grenades, “pepper balls,” “blast

9

balls,” and rubber bullets, unless the incident commander or above-

ranking member of command staff specifically authorizes such use of

10

force in response to specific acts of violence creating likely imminent

physical harm to an individual(s). This Order does not preclude

11

individual officers from taking reasonable, necessary, and

proportional action to protect against imminent threat of physical

12

harm to themselves or identifiable others, including the deployment of

OC spray.

13 The City is aware of two federal courts that have issued a Temporary Restraining Order (TRO)

14 related to the current civil rights movement addressing systemic racism in the United States, currently

15 focused on policing due to the killing of George Floyd. In these Motions, plaintiffs challenge the use of

16 less lethal tools for crowd management during demonstrations, citing, as in the present case, primarily

17 First and Fourth Amendment claims. In all of the Motions, the courts carefully balanced the “absolute

18 right to demonstrate and protest the actions of government officials” and the “difficult and thankless job”

19 in which police officers are “called upon to make split second decisions and to expose themselves to

20 danger while protecting the health and safety of the rest of us.” Don’t Shoot Portland, et al v. City of

21 Portland, 20-cv-00917-HZ *4, United States District Court for the District of Oregon (“the Court

22 recognizes the difficulty in drawing an enforceable line that permits officers to use appropriate means to

23

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1 respond to violence and destruction of property without crossing the line into chilling free speech and

2 abusing those who wish to exercise it.”)

3

The City’s proposal includes language similar to, but more restrictive than, the orders entered by

4 the federal courts in Denver and Portland. In addition to this standing offer, the City responds in full to

5 Plaintiffs’ TRO request as follows.

6

II. Plaintiffs Fail to Establish a Likelihood of Success on the Merits.

7

Plaintiffs must establish that they likely will succeed on the merits of their constitutional

8 claims. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S. Ct. 365, 374, 172 L. Ed. 2d

9 249 (2008). A “possibility” of success is insufficient to meet this standard. Plaintiffs must make a

10 “clear showing” that they are entitled to preliminary relief. Id. Even if Plaintiffs produce “a

11 significant body of evidence that establishes some probability of success on their individual claims

12 for relief for past violations of 42 U.S.C. § 1983 . . . ultimate success on these claims would entitle

13 plaintiffs to money damages only, not injunctive relief.” Campbell v. City of Oakland, No. C 11-

14 5498 RS, 2011 WL 5576921, at *3-4 (N.D. Cal. Nov. 16, 2011). “Sporadic or isolated violations of

15 individual protesters' rights are insufficient to support broad injunctive relief against an entire

16 agency.” Id. (citing Lewis v. Casey, 518 U.S. 343, 360, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996)).

17 Plaintiffs cannot meet this high standard.

18

Peaceful demonstration “for days on end without any alleged unconstitutional interference

19 from local authorities” is insufficient to meet this standard. Id. Plaintiffs admit attending several

20 peaceful protests – and admit days of peaceful demonstration with no police interference. (See e.g.

21 Chen Dec., ¶ 9; Ekenzar Dec.; Kyashna-Tocha Dec., ¶¶ 11-12). Plaintiffs admit that officers during

22 demonstrations were asking protesters to “move back” and such demands were not being heeded.

23 (Ekenzar Dec., ¶ 13). There is also media footage from the referenced demonstration events that

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1 some Plaintiffs attended revealing the chaotic scene faced by law enforcement and demonstrators

2 alike. See e.g. https://www.youtube.com/watch?v=S_4FluN2Wsk (King5, May 30, 2020).

3

This Court must contemplate “the interests of state and local authorities in managing their

4 own affairs, consistent with the Constitution.” Milliken v. Bradley, 433 U.S. 267, 280, 97 S.Ct. 2749,

5 53 L.Ed.2d 745 (1977). There is no admission that the Seattle Police Department systematically

6 deviated from policy during the alleged demonstration dates. Even if deviations had occurred – such

7 deviations would be subject to the significant oversight structure of the City, possible discipline, and

8 civil litigation for money damages, like the instant action. See Campbell, 2011 WL 5576921, at *4.

9

a. Plaintiffs fail to show a likelihood of success on their First Amendment claims.

10

Plaintiffs’ allegations fail to meet a base threshold for First Amendment retaliation. For First

11 Amendment claims based on the alleged retaliatory acts of officers, Plaintiffs must allege: (1) each

12 Plaintiff was engaged in constitutionally protected conduct; (2) Defendants' conduct was retaliatory;

13 and (3) actual injury. Molokai Veterans Caring for Veterans v. Cty. of Maui, No. CIV. 10-00538

14 LEK, 2011 WL 1637330, at *16 (D. Haw. Apr. 28, 2011). Defendants then “may rebut Plaintiffs’

15 allegation of a retaliatory motive by showing that Defendants would have engaged in the same

16 conduct even in the absence of [any plaintiffs] protected activities.” Id. (citing Mt. Healthy City Sch.

17 Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)); Soranno's Gasco, Inc. v. Morgan, 874 F.2d

18 1310, 1314-15 (9th Cir. 1989). This standard overlaps with the one needed to make a general claim

19 for a First Amendment violation, wherein Plaintiffs must allege facts showing that “by [their]

20 actions, [Defendants] deterred or chilled [Plaintiff’s] political speech and such deterrence was a

21 substantial or motivating factor in [Defendants’] conduct.” Mendocino Envtl. Ctr. v. Mendocino Cty.,

22 192 F.3d 1283, 1300 (9th Cir. 1999) (citing Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir.1994))

23

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1 (emphasis added). The “proper inquiry asks ‘whether an official's acts would chill or silence a person

2 of ordinary firmness from future First Amendment activities.’” Mendocino, 192 F.3d at 1300.

3

Finally, the factual record cannot establish that the conduct was retaliatory in nature. While

4 Plaintiffs argue that the content of the speech motivated the police to use less lethal tactics, the

5 content of the speech was consistent throughout multiple days of protests, and on six of those days

6 no less lethal tools were deployed over twenty-four hours. If one factors in the multiple protests that

7 occurred on many of these days, the disparity between the isolated times less lethal tools were used

8 - and the many times it was not - becomes even more clear. It is also important to note that when

9 individuals in the crowd engage in unlawful activity, a response to that unlawful activity cannot be

10 viewed as a response to protected activity.

11

b. Plaintiffs fail to show a likelihood of success on their Fourth Amendment claims.

12

A person is “seized” when officers, by means of physical force or show of authority,

13 terminate or restrain the person’s freedom of movement “through means intentionally applied.”

14 Nelson v. City of Davis, 685 F.3d 867, 875 (9th Cir. 2012). Once a seizure is deemed to have

15 occurred, courts evaluate the reasonableness of the seizure and force used to effectuate that seizure.

16 Evaluation of whether a person was subject to excessive force requires a balancing of “the nature

17 and quality of the intrusion on the individual’s Fourth Amendment interests against the

18 countervailing governmental interests at stake.” Luchtel v. Hagemann, 623 F.3d 975, 980 (9th Cir.

19 2010) (quoting Graham, 490 U.S. at 396). Courts evaluate the facts and circumstances of each case,

20 including an assessment of “the severity of the crime at issue, whether the suspect poses an

21 immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or

22 attempting to evade arrest by flight.” Id. The Court must evaluate “the totality of the circumstances,”

23 judging the reasonableness of the particular use of force from the perspective of a reasonable officer

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Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 17 of 28

1 on the scene, not with “the 20/20 vision of hindsight,” and bearing in mind that police officers need

2 not use the least intrusive means available to them. Id. at 980, 982.

3

“What is reasonable in the context of a [potentially violent large-scale protest]” is different

4 from what is reasonable in other, relatively calm, situations. See Bernini v. City of St. Paul, 665 F.3d

5 997, 1003 (8th Cir. 2012). In distinct circumstances, “the city clearly ha[s] a legitimate interest in

6 quickly dispersing and removing lawbreakers with the least risk of injury to police and others . . .

7 The wholesale commission of common state-law crimes creates dangers that are far from ordinary.

8 Even in the context of political protest, persistent, organized, premeditated lawlessness menaces in

9 a unique way the capacity of a State to maintain order and preserve the rights of its

10 citizens.” Forrester v. City of San Diego, 25 F.3d 804, 807 (9th Cir. 1994) (citing Bray, 506 U.S. at

11 ––––, 113 S.Ct. at 769 (Kennedy, J., concurring)).

12

There is an insufficient factual record to establish that Plaintiffs Sakamoto and Black Lives

13 Matter were subject to Fourth Amendment violations. (See Dkt. 1; Sakamoto Dec.). There are factual

14 discrepancies and unanswered questions about whether the use of force encounters that the other

15 Plaintiffs had with law enforcement was reasonable, proportionate, and a necessary to what those

16 particular law enforcement officers were encountering at the moment force was employed. The facts

17 detailed above reveal that law enforcement officers were under frequent – and at times continuous –

18 assault by projectiles, explosives, and potential chemical agents. The facts also reveal that

19 community members were injured by members of protest crowds. Plaintiffs present snapshots of

20 events from their declarations – identifying a handful of moments amongst several uneventful

21 demonstration days to see to enjoin the entire Seattle Police Department. There are thousands of

22 hours of citizen and Body-Worn Video necessary for review and analysis, reports and radio calls to

23 be reviewed, and accountability assessments to be conducted before evaluating the facts and

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1 circumstances surrounding the Plaintiffs’ allegations. Plaintiffs may have shown a possibility or

2 even a probability of success on the merits as it concerns their Fourth Amendment claim. However,

3 Plaintiffs’ request for TRO and pleadings fail to identify a likelihood of success. As noted above,

4 the “threatened injury must be certainly impending to constitute injury in fact, and allegations of

5 possible future injury are not sufficient.” Clapper v. Amnesty Int'l USA, 133 S. Ct at 1147 (internal

6 citations omitted) (emphasis added). Similarly, “[p]ast exposure to illegal conduct does not in itself

7 show any continuing, present adverse effects.” O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974).

8 As a result, at this very early stage, plaintiffs have not carried their heavy burden by clearly showing

9 likely success on their claims that defendants' alleged ongoing constitutional violations are so

10 widespread, and systematic in nature, as to warrant the extraordinarily broad relief requested.

11

III. Plaintiffs Will Not Incur Irreparable Harm.

12

To obtain a TRO, Plaintiffs must establish that they will suffer immediate and irreparable

13 injury in the absence of the requested relief. Hodgers-Durgin v. Gustavo De La Vino, 199 F.3d 1037

14 (9th Cir. 1999). Plaintiffs own declarations defeat this element. “The propriety of a temporary

15 restraining order, in particular, hinges on a significant threat of irreparable injury that must be

16 imminent in nature.” Gish v. Newsom, 2020 WL 1979970, at *3 (C.D. Cal. Apr. 23, 2020). “[A]

17 federal court may not entertain a claim by any or all citizens who no more than assert that certain

18 practices of law enforcement officers are unconstitutional.” City of Los Angeles v. Lyons, 461 U.S.

19 95, 111 (1983). This is the extent of Plaintiffs’ complaint allegations. As detailed at length in the

20 preceding sections, Plaintiffs’ declarations attest to the fact that they demonstrated on many days –

21 before and after their claimed injuries - often in violation of the City curfew put in to place to address

22

23

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1 the repeating pattern of peaceful daytime protests and violent night protests. Plaintiffs chose to 2 assemble and demonstrate, knowing the inherent risks of doing so amid a global pandemic.4

3

Courts should distinguish between a pattern of police misconduct and “isolated event[s]

4 caused by unusual or isolated factors.” Mult-Ethnic Immig. Workers, 246 F.R.D. 621, 627 (C.D. Cal.

5 2007). Two consecutive weeks of demonstrations – many admittedly peaceful – establish that there

6 is no nexus between Plaintiffs’ claimed injuries, Plaintiffs’ speculative belief of future injury. A

7 TRO “is unavailable . . . where there is no showing of any real or immediate threat that the plaintiff

8 will be wronged again.” Lyons, 461 U.S. at 1111. The “speculative nature of [Plaintiffs’] claim of

9 future injury requires a finding that this prerequisite of equitable relief has not been fulfilled. Id.

10

IV. Balance of Equities and Serving the Public Interest.

11

Under the “balance of equities” analysis, a court must “balance the competing claims

12 of injury” and “consider the effect on each party of the granting or withholding of the requested

13 relief.” Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 24 (2008). The City agrees that in the

14 context of government action, the balance of the equites factor merges with the public interest.

15 Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014).In contrast, the City does not

16 dispute Plaintiffs’ constitutional rights weigh heavily on the Plaintiffs’ side of the scale – all the

17 Seattle Police Department’s policies around crowd management are designed to facilitate and

18 support free speech. Plaintiffs fail to address the interests of public and officer life and safety or the

19 need to protect public and private property, at any level. The City has a significant commitment to

20 protect and facilitate free speech, but it cannot break in its effort to do so. See Friends of the Wild

21 Swan v. Weber, 955 F. Supp. 2d 1191, 1196 (D. Mont. 2013) (The balance of equities and public

22 4 Plaintiffs suggestion that the City “focus on arresting” demonstrators is an unexpected urging for
23 the City to risk a public health issue for demonstrators given well-known concerns about the difficulties COVID presents for arrests and bookings. Dkt. 6, at 2.

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1 interest considerations, including the protection of governmental buildings and facilities, weighed

2 in favor of the defendants.).

3

In the balancing of equities analysis in Portland, Judge Hernandez recognized that harm

4 “includes ‘the breaking of the windows of the Justice Center and other buildings, setting off

5 fireworks, property destruction, looting, setting fires in the Justice Center and other areas of

6 downtown, throwing and launching deadly projectiles at the police, and attempting to dismantle a

7 fence put up to protect the Justice Center.’” Don’t Shoot Portland, et al., citing Winter, 555 U.S. at

8 24. The concerns in Seattle are similar: burning of police vehicles, attempts to burn police

9 headquarters, injuries to demonstrators and police officers alike, destruction of private businesses

10 (both large and small) and looting of those businesses. Additionally, the department had intelligence

11 from the FBI and DHS of credible threats to destroy the East Precinct and other buildings in Seattle.

12 Burning buildings is not “property damage” – arson in residential and commercial districts directly

13 threatens human life.

14

Unlike the circumstances in Don’t Shoot Portland, et al., Seattle has seen a diminishing level

15 of violence and therefore, a diminishing level of responsive police force. As such, the current

16 circumstances are more akin those in Goyette v. City of Minneapolis, where the Court noted its June

17 9, 2020 order: “Goyette does not allege that any of the conduct that he seeks to enjoin—occurring

18 over a five-day period of unprecedented civil unrest—has occurred since May 31, 2020, or facts that

19 plausibly demonstrate that such conduct is likely to recur imminently.” Less lethal tools have not

20 been deployed against any demonstrators for four nights.

21

V. Plaintiffs lack standing to seek injunctive relief.

22

The City recognizes the importance of the issues raised by Plaintiffs and, as shown by the

23 facts which indicate that the City approach to the protests is evolving where required and possible,

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1 certainly is willing to work cooperatively with community leaders and stakeholders. However, the

2 City regretfully must point out that as a legal and technical matter, these Plaintiffs are not able to

3 seek an injunction under longstanding and basic constitutional restrictions on the judicial

4 branch. Keeping in mind that the City is willing to work towards voluntary agreement, we must

5 nonetheless discuss standing.

6

Article III, section 2 of the United States Constitution limits federal jurisdiction to actual

7 “Cases” or “Controversies.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013). Jurisdiction

8 is a threshold question that must be resolved in every federal proceeding. City of Los Angeles v.

9 Kern, 581 F.3d 841, 845 (9th Cir. 2009). Courts should assume the absence of jurisdiction unless

10 the record affirmatively shows otherwise. See San Diego Cty. Gun Rights Comm. v. Reno, 98 F.3d

11 1121, 1126 (9th Cir. 1996). “Whether the question is viewed as one of standing or ripeness, the

12 Constitution mandates that […] the issues presented are definite and concrete, not hypothetical or

13 abstract[.]” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138-9 (9th Cir. 2000) (en

14 banc) (internal citations and quotations omitted). Plaintiffs, the party invoking federal jurisdiction,

15 bear the burden of alleging specific facts sufficient to establish standing Lujan v. Defenders of

16 Wildlife, 504 U.S. 555, 5460 (1992). Furthermore, each Plaintiff “must demonstrate standing

17 separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Evtl Servs, Inc, 528

18 U.S. 167, 185 (2000).

19

Plaintiffs do not meet the mandatory threshold requirement of Article III constitutional

20 standing to obtain injunctive relief. “To seek injunctive relief, a plaintiff must show that he is under

21 threat of suffering ‘injury in fact’ that is concrete and particularized; the threat must be actual and

22 imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the

23 defendant; and it must be likely that a favorable judicial decision will prevent or redress the

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1 injury.” Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009); Shell Offshore, Inc. v. Greenpeace,

2 Inc. 709 F.3d 1281, 1286–87 (9th Cir. 2013). Plaintiffs do not expressly identify an injury in fact

3 they seek to prevent. Absent actual, imminent threatened “injury in fact,” Plaintiffs cannot establish

4 standing regardless of Plaintiffs’ speculative fear of future injury from the crowd management tools

5 or a claimed chilling effect on protected speech.

6

(a) No Standing Exists Based on Any Alleged First Amendment Chilling Effect.

7

Plaintiffs cannot base a standing claim on a chilling effect on First Amendment rights

8 unrelated to an express regulation on speech, especially when they have affirmatively stated they

9 will continue to exercise those First Amendment rights regardless. Even where a plaintiff engages

10 in legal behavior (such as First Amendment activities), injunctive relief is unavailable absent a

11 showing of a likelihood of substantial and immediate irreparable injury. Hodgers–Durgin v. De La

12 Vina, 199 F.3d 1037, 1042 (9th Cir. 1999). Such a showing cannot be based on a subjective First

13 Amendment chilling effect under the facts present here.

14

Notably, when alleging harm, “allegations of a subjective ‘chill’ are not an adequate

substitute for a claim of specific present objective harm or a threat of specific future

15

harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972); see also Olagues v. Russoniello,

770 F.2d 791, 797 (9th Cir. 1985) (applying Laird to find allegation of subjective

16

chill insufficient to establish standing for claim of injunctive relief).

17 Lininger v. Pfleger, No. 17-CV-03385-SVK, 2018 WL 10455841, at *4 (N.D. Cal. Apr. 4, 2018).

18 An attempt to base standing on a supposed chilling effect improperly conflates the elements of a

19 First Amendment retaliation claim with the standing requirement. “‘Chilling effect’ is cited as the

20 reason why the governmental imposition is invalid rather than as the harm which entitles the plaintiff

21 to challenge it.” Id., at *9 (N.D. Cal. Apr. 4, 2018) (citing United Presbyterian Church in the U.S.A.

22 v. Reagan, 738 F.2d 1375, 1378–79 (D.C. Cir. 1984)).

23

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1

Additionally, none of the Plaintiffs can establish standing based on speculative and

2 subjective fears. “Allegations of a subjective ‘chill’ are not an adequate substitute for a claim of

3 specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-

4 14, 92 S.Ct. 2318 (1972). The “existence of a ‘chilling effect’ . . . has never been considered a

5 sufficient basis” to confer standing and the “only exception to this general rule has been the relaxed

6 standards for overbreadth facial challenges [to statutes] involving protected speech.” San Diego Cty.

7 Gun Rights Comm. v. Reno, 98 F.3d 1121, 1129 (9th Cir. 1996). The facts here are easily

8 distinguishable from cases where speech is directly regulated and prohibited, such that standing

9 requirements are expanded. See, e.g, Epperson v. Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d

10 228 (1968) (the Court entertained a challenge to a statute that criminalized the teaching of evolution

11 theory in public schools even though there was no record of any prosecutions under the statute.)

12 Clapper v. Amnesty Int'l USA, 568 U.S. 398, 417-18, 133 S. Ct. 1138 (2013) makes clear that any

13 “fear” or “subjective apprehension” which results in “self-imposed” restrictions on the exercise of

14 constitutionally protected rights will not confer standing. Here, there is no overbroad statute at issue,

15 only claimed subjective fears. Moreover, the notwithstanding the standing issue, the City was willing

16 to voluntarily restrict its use of crowd management tools (to an even narrower scope than the current

17 court-approved SPD policy) as long as it retained sufficient flexibility to protect individuals from

18 physical harm may help to assuage any fears, further supporting First Amendment activities.

19

(b) Plaintiffs cannot establish a particularized threat of physical injury.

20

Plaintiffs fare no better if standing is evaluated by looking at fears of physical harm. Over

21 thirteen nights of protests, the challenged crowd management tools were utilized less and less as

22 time went by. See Table 1, supra. Over the last eight days, no challenged tools were used on six days

23 of protests, including on the night prior to this opposition being filed, when protests occurred at three

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1 of five police precincts. This simple fact belies the narrative that the police are using force to

2 suppress speech, and reveals the deeper complexity behind the specific instances of force. In denying

3 a requested injunction in Minnesota on June 9, 2020 the Court noted that there had been no use of

4 the crowd management tools at issue in that litigation since May 31, 2020 – belying a particularized

5 threat of physical injury. (Dkt. 22-1, p. 56).

6

(c) Plaintiffs cannot establish an actual, imminent threat of physical injury.

7

Here, Plaintiffs rely on pure speculation to support the notion that they will be injured by the

8 specific tools of crowd control management which they seek to enjoin. In Haynes v. Biaggini, No.

9 216-CV-01949, 2019 WL 5209246, at *2 (C.D. Cal. Oct. 16, 2019), the court denied injunctive relief

10 against law enforcement because allegations of the same injury “in the past do not sufficiently link

11 hypothetical future testimony to the hypothetical future harm[; s]uch speculative harm is not actual

12 or imminent and does not convey standing for injunctive relief.” See also Lee v. Oregon, 107 F.3d

13 1382, 1389 (9th Cir. 1997) (discussing that courts in the Ninth Circuit “have repeatedly found a lack

14 of standing where the litigant's claim relies upon a chain of speculative contingencies”). Here, the

15 chain of speculative contingencies has many links. Plaintiffs would need to attend a protest (which

16 one Plaintiff has never done), the police would need to be present, the police would need to have

17 access to the tools sought to be enjoined, the police would need to utilize those tools on either

18 Plaintiff or the specific part of the crowd where Plaintiff was present, and the Plaintiffs would need

19 to be in close enough proximity to sustain physical injury. This is far too speculative a chain.

20 Consequently, Plaintiffs lack standing to seek the TRO.

21

VI. If this Court Considers a Temporary Restraining Order, Plaintiffs’ Proposal is Too

Restrictive.

22 The City’s response reveals that a TRO is unnecessary for peaceful demonstrations to

23

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1 continue in Seattle. However, if this Court concludes that Plaintiffs met their burden of being

2 entitled to equitable relief in the form of a TRO, this Court should be mindful that the Plaintiffs’

3 proposed TRO language goes far beyond what has been issued by courts with respect to other

4 George Floyd demonstrations (when the TRO has not been outright denied), does not weigh the

5 public interest and equities in a manner consistent with other federal district court opinions on this

6 subject matter, and does not account for the very real need to protect against physical injury and

7 violence. In such an instance, the City urges the Court to adopt the language proposed on June 10,

8 2020. (Dkt. 20). Since the June 10, 2020 telephonic status, communications between the City and

9 Plaintiffs on possible stipulated language continues.

10

CONCLUSION

11

Plaintiffs fail to meet the very high burden for this Court’s entry of a TRO. The natural

12 development of events – the Plaintiffs’ own sworn statements – and the continuing peaceful

13 demonstrations in Seattle reveal that a TRO is unnecessary to enable Seattle to continue marching

14 and demanding change.

15

DATED this 11th day of June, 2020.

16

PETER S. HOLMES

Seattle City Attorney

17 By: /s/ Ghazal Sharifi

18

Ghazal Sharifi, WSBA# 47750

By: /s/ Carolyn Boies

19

Carolyn Boies, WSBA# 40395

Assistant City Attorneys

20

E-mail: Ghazal.Sharifi@seattle.gov

E-mail: Carolyn.Boies@seattle.gov

21

Seattle City Attorney’s Office

701 Fifth Avenue, Suite 2050

22

Seattle, WA 98104

Phone: (206) 684-8200

23

Attorneys for Defendant City of Seattle

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1

CERTIFICATE OF SERVICE

2

I hereby certify that on June 11, 2020, I electronically filed the foregoing with the Clerk of

the Court using the CM/ECF system which will send notification of such filing to the following:

3 Breanne Mary Schuster

4

ACLU of Washington

901 Fifth Avenue, Suite 630

5

P.O. Box 2728

Seattle, WA 98111

6

(206) 624-2184

( x ) Via Email bschuster@aclu-wa.org

7

[Attorneys for Plaintiffs]

John B. Midgley

8

ACLU of Washington

901 Fifth Avenue, Suite 630

9

P.O. Box 2728

Seattle, WA 98111

10

(206) 624-2184

( x ) Via Email jmidgley@aclu-wa.org

11

[Attorneys for Plaintiffs]

Lisa Nowlin

12

ACLU of Washington

901 Fifth Avenue, Suite 630

13

P.O. Box 2728

Seattle, WA 98111

14

(206) 623-1900

( x ) Via Email lnowlin@aclu-wa.org

15

[Attorneys for Plaintiffs]

Molly Tack-Hooper

16

ACLU of Washington

901 Fifth Avenue, Suite 630

17

P.O. Box 2728

Seattle, WA 98111

18

(206) 624-2184

( x ) Via Email mtackhooper@aclu-wa.org

19

[Attorneys for Plaintiffs]

Nancy Lynn Talner

20

ACLU of Washington

901 Fifth Avenue, Suite 630

21

P.O. Box 2728

Seattle, WA 98111

22

(206) 682-2184

( x ) Via Email talner@aclu-wa.org

23

[Attorneys for Plaintiffs]

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 26

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 27 of 28

1

Carolyn S. Gilbert

PERKINS COIE

2

1201 3rd Avenue, Suite 4900

Seattle, WA 98101-3099

3

(206) 359-3279

( x ) Via Email carolyngilbert@perkinscoie.com

4

[Attorneys for Plaintiffs]

Mallory Gitt Webster

5

PERKINS COIE

1201 3rd Avenue, Suite 4900

6

Seattle, WA 98101-3099

(206) 359-3701

7

[Attorneys for Plaintiffs]

8

Paige L. Whidbee

PERKINS COIE

9

1201 3rd Avenue, Suite 4900

Seattle, WA 98101-3099

10

(206) 359-3629

( x ) Via Email mwebster@perkinscoie.com
( x ) Via Email pwhidbee@perkinscoie.com

11

[Attorneys for Plaintiffs]

Heath L. Hyatt

12

PERKINS COIE

1201 3rd Avenue, Suite 4900

13

Seattle, WA 98101-3099

(206) 359-8000

14

[Attorneys for Plaintiffs]

15

Joseph M. McMillan

PERKINS COIE

16

1201 3rd Avenue, Suite 4900

Seattle, WA 98101-3099

17

(206) 583-8888

( x ) Via Email hhyatt@perkinscoie.com
( x ) Via Email JMcMillan@perkinscoie.com

18

[Attorneys for Plaintiffs]

Nitika Arora

19

PERKINS COIE

1201 3rd Avenue, Suite 4900

20

Seattle, WA 98101-3099

(206) 359-3267 21

[Attorneys for Plaintiffs]

22

David A. Perez

PERKINS COIE

23

1201 3rd Avenue, Suite 4900

( x ) Via Email NArora@perkinscoie.com
( x ) Via Email DPerez@perkinscoie.com

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 27

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 29 Filed 06/11/20 Page 28 of 28

1

Seattle, WA 98101-3099

(206) 359-6767

2 [Attorneys for Plaintiffs]

3

Robert Seungchal Chang

( x ) Via Email

Ronald A. Peterson Law Clinic

changro@seattleu.edu

4

Seattle University School of Law

1112 E. Columbia Street

5

Seattle, WA 98122

(206) 398-4025

6

[Attorneys for Plaintiffs]

7

8

s/ Ghazal Sharifi______________________

9

Assistant City Attorney

10

11

12

13

14

15

16

17

18

19

20

21

22

23

THE CITY OF SEATTLE’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ENTRY OF A TEMPORARY RESTRAINING ORDER- 28

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

 
 Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 1 of 12

1 HONORABLE RICHARD A. JONES
2

3

4

5

6

7

8

9

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

10

AT SEATTLE

11 BLACK LIVES MATTER SEATTLE-KING

12

COUNTY, ABIE EKENEZAR, SHARON SAKAMOTO, MURACO KYASHNA-

13 TOCHA, ALEXANDER WOLDEAB,

NATHALIE GRAHAM, AND 14 ALEXANDRA CHEN,

15

Plaintiffs,

Case No. 2:20-cv-00887-RAJ
ORDER GRANTING IN PART MOTION FOR TEMPORARY RESTRAINING ORDER

16

v.

17 CITY OF SEATTLE, SEATTLE POLICE 18 DEPARTMENT,

19

Defendant.

20 I. INTRODUCTION
21 The city and nation are at a crisis level over the death of George Floyd. One
22 would be missing the point to conclude that the protests that are the subject of this motion
23 are only about George Floyd. His death just happens to be the current tragic flashpoint in
24 the generational claims of racism and police brutality in America. The global strength of
25 the Black lives movement and the obvious commitment to change are a clear
26 indication—not just to this Court, but globally—that these protests will not be short-
27

28 ORDER – 1

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 2 of 12

1 lived, and the protestors have made it clear that their determination will be relentless until

2 change and police reform is made.

3

What brings the parties to this Court today are peaceful protestors desiring to

4 engage in their rights guaranteed by the Constitution, the freedom of assembly without

5 fear of retaliation or disruption by Seattle police officers’ use of tear gas, pepper spray,

6 flash bang devices, or foam-tip bullets.

7

The First Amendment guarantees that all citizens have the right to hold and

8 express their political beliefs through peaceful protests. Police cannot interfere with

9 orderly, nonviolent protests because they disagree with the content of the speech. At the

10 same time, this Court must balance these interests when violent offenders choose to

11 disrupt constitutionally protected activity.

12

For the reasons below, Plaintiffs’ Motion for Temporary Restraining Order (Dkt.

13 # 6) is GRANTED in part.

14

II. BACKGROUND

15

On May 25, 2020, George Floyd died in the custody of four Minneapolis police

16 officers. Since then, nationwide outrage and protest has ensued. Protests in Seattle

17 began on May 29, 2020, just days after his death and continue to this day. Indeed, within

18 moments of this Order a statewide walkout and march is set to begin.

19

The tale of the protests is cloudy. The parties agree that the protests have been

20 largely peaceful. Dkt. # 6 at 13; Dkt. # 29 at 7-9. But on some occasions, the protestors

21 and the Seattle Police Department (“SPD”) have exchanged bottles, rocks, and fireworks

22 for tear gas, pepper spray, and blast balls. Dkt. # 19 ¶ 4; Dkt. # 27 ¶¶ 12-25. On June 5,

23 2020, the SPD banned the use of tear gas, subject to some exceptions. Dkt. # 27 ¶ 21.

24 Days later, SPD deployed tear gas again. Dkt. # 8 ¶¶ 6, 11-12.

25

Plaintiffs sued Defendant City of Seattle (“City”) in this Court, alleging that the

26 City violated their rights under the First and Fourth Amendments. Dkt. # 1. Plaintiffs

27 allege that during the George Floyd protests, the SPD deployed “less-lethal” weapons

28 ORDER – 2

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 3 of 12

1 including “chemical irritants, batons, kinetic impact projectiles, and weapons intended to

2 stun with light and sound.” Id. ¶ 15. Chemical irritants include tear gas (“CS gas”) and

3 oleoresin capsicum spray (“OC” or “pepper” spray). Id. ¶ 16. The use of these weapons,

4 Plaintiffs say, deprived them of their right to protest and to be free from excessive force.

5 Id. ¶¶ 140-47.

6

Hours after they filed their complaint, Plaintiffs moved for a temporary restraining

7 order (“TRO”), seeking to enjoin the City from “deploying chemical weapons or

8 projectiles of any kind for the purpose of crowd control at protests or

9 demonstrations . . . includ[ing] prohibitions on[] (1) any chemical irritant such as CS Gas

10 (‘tear gas’) or OC Spray (‘pepper spray’) and (2) any projectile such as flash-bang

11 grenades, ‘pepper balls,’ ‘blast balls,’ and rubber bullets.” Dkt. # 6-1 at 2; see also Dkt.

12 # 6. The City opposed that motion but, in the interest of compromise, proposed revisions

13 to the injunction that it is willing to stipulate to. Dkt. # 29 at 12-14.

14

The Court has reviewed the evidence supplied by the parties, but, of course, the

15 record is limited at this stage. Based on the Court’s review, the video and testimonial

16 evidence show that on some occasions the SPD has in fact used less-lethal weapons

17 disproportionately and without provocation. See, e.g., Dkt. # 9 ¶ 3; Dkt. # 12 ¶¶ 3-4, 6-8;

18 Dkt. # 19 ¶¶ 3-4.

19

III. LEGAL STANDARD

20

Like a preliminary injunction, issuance of a TRO is “an extraordinary remedy

21 never awarded as of right.” Garcia v. Google, Inc., 786 F.3d 733, 740 (9th Cir. 2015).

22 Under Federal Rule of Civil Procedure 65(b), a party seeking a TRO must make a clear

23 showing (1) of a likelihood of success on the merits, (2) of a likelihood of suffering

24 irreparable harm in the absence of preliminary relief, (3) that the balance of hardship tips

25 in her favor, and (4) that a temporary restraining order in is in the public interest. Winter

26 v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008) (articulating standard

27 for preliminary injunction); Stuhlbarg Int’l Sales Co. v. John D. Brush & Co., 240 F.3d

28 ORDER – 3

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 4 of 12

1 832, 839 n.7 (9th Cir. 2001) (noting that preliminary injunction and temporary restraining

2 order standards are “substantially identical”).

3

IV. DISCUSSION

4

A few words to start: First, as other courts have recently expressed,1 people have a

5 right to demonstrate and protest government officials, police officers being no exception.

6 Their right to do so, without fear of government retaliation, is guaranteed by the First and

7 Fourth Amendments. Second, to protect person and property, police officers must make

8 split-second decisions, often while in harm’s way. Third, the Court hopes that the parties

9 see the kinship in their arguments—not all protestors seek destruction; not all officers

10 seek violence. Finally, like previous courts, this Court recognizes the difficulty in

11 drawing an enforceable line that permits police officers to use appropriate means in

12 response to violence and destruction of property but that also does not chill free speech or

13 abuse those who wish to exercise it.

14

Here, Plaintiffs request a TRO on their First and Fourth Amendment claims. Dkt.

15 # 6. They seek to enjoin the City of Seattle, including the SPD, from deploying

16 “chemical weapons or projectiles of any kind for the purpose of crowd control at protests

17 or demonstrations.” Dkt. # 6-1 at 1. The Court analyzes Plaintiffs’ request under the 18 four Winter factors and addresses each in turn.2

19

A. Likelihood of Success on the Merits

20

Plaintiffs argue that the SPD’s use of less-lethal, “crowd control” weapons violates

21 their First Amendment right to protest and their Fourth Amendment right to be free from

22 excessive force.

23

24 1 Abay v. City of Denver, No. 1:20-cv-01616-RBJ, 2020 WL 3034161, at *2 (D. Colo.

25 June 5, 2020); Don’t Shoot Portland v. City of Portland, No. 3:20-cv-00917-HZ, 2020 WL 3078329, at *1 (D. Or. June 9, 2020).
26 2 The City also argued that Plaintiffs lack standing to bring their claims. The Court has

27

reviewed their brief and has heard oral argument on this issue. Based on that review, it concludes that the standing argument lacks merit.

28 ORDER – 4

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 5 of 12

1

i. First Amendment Claim

2

To establish a First Amendment retaliation claim, plaintiffs must show that

3 (1) they were engaged in a constitutionally protected activity, (2) the defendant’s actions

4 would chill a person of ordinary firmness from continuing to engage in the protected

5 activity, and (3) the protected activity was a substantial or motivating factor in the

6 defendant’s conduct. Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir.

7 2006). At this stage, Plaintiffs have made a clear showing of all three elements.

8

First, the right to protest—including activities such as “demonstrations, protest

9 marches, and picketing”—is clearly protected by the First Amendment. Collins v.

10 Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996). Since “time immemorial,” city streets and

11 sidewalks have been deemed public fora, and as such any First Amendment restrictions

12 placed on them are “subject to a particularly high degree of scrutiny.” Id. “Speech that

13 stirs passions, resentment or anger is fully protected by the First Amendment.” Id. (citing

14 Terminiello v. Chicago, 337 U.S. 1, 4 (1949)). Indeed, the First Amendment “protects a

15 significant amount of verbal criticism and challenge directed at police officers.” City of

16 Houston, Tex. v. Hill, 482 U.S. 451, 461 (1987) (explaining that yelling obscenities and

17 threats at a police officer is still protected under the First Amendment). The law is clear

18 that the government may not prohibit angry or inflammatory speech in a public forum,

19 unless it is both “directed to inciting of producing imminent lawless action” and “likely to

20 incite or produce such action.” Collins, 110 F.3d at 1371.

21

Plaintiffs show that they were engaged in the constitutional right to protest police

22 brutality. They exercised their right on public fora. The video evidence reveals that

23 many of these protests occurred on Seattle streets, often right outside the police precinct

24 on Capitol Hill. Dkt. # 8 ¶¶ 2, 6, 11-12 (videos of June 8 protest); Dkt. # 19 ¶¶ 3-4

25 (videos of June 1 and June 2 protests). On this record, their protests have been passionate

26 but peaceful, and they must thus be protected even if they stand in opposition to the

27 police. The video and testimonial evidence reveal as much. See, e.g., Dkt. # 9 ¶ 3; Dkt.

28 ORDER – 5

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 6 of 12

1 # 12 ¶¶ 3-4, 6-8; Dkt. # 19 ¶¶ 3-4.

2

Both parties agree that some protesters did launch objects at the police, ranging

3 from rocks, bottles, fireworks, traffic cones, traffic flares, and more. Dkt. # 9 ¶ 3;

4 Dkt. # 12 ¶ 11; Dkt. # 27 ¶¶ 12-25. Moreover, the City represents that SPD confronted

5 “significant arson events, assaults on civilians and officers, as well as wide-spread looting

6 and property destruction,” among other criminal activities. Dkt. # 29 at 7. This, no

7 doubt, poses a serious threat to officer life and safety. Id. at 19. But, as to these

8 protestors, the Court agrees with Plaintiffs’ reading of Collins: “the proper response to

9 potential and actual violence is for the government to ensure an adequate police presence,

10 and to arrest those who actually engage in such conduct, rather than to suppress

11 legitimate First Amendment conduct as a prophylactic measure.” 110 F.3d at 1372.

12

Reiterating its initial remarks, the Court acknowledges that it is difficult to balance

13 these public safety concerns and constitutional rights. But the Court holds that the

14 balance here tips in favor of Plaintiffs, and other peaceful protesters, who were engaging

15 in and may continue to engage in their constitutional right to protest.

16

Second, SPD’s actions would chill a person of ordinary firmness from continuing

17 to protest. “Ordinary firmness” is an objective standard that will not “allow a defendant

18 to escape liability for a First Amendment violation merely because an unusually

19 determined plaintiff persists in his protected activity.” Mendocino Envtl. Ctr. v.

20 Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999). The mere threat of harm, without

21 further action, can have a chilling effect. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir.

22 2009).

23

SPD’s use of less-lethal, crowd control weapons have surely chilled speech. To

24 start, exposure to tear gas and pepper spray is “excruciating.” Dkt. # 10 ¶¶20-31

25 (“Imagine the hottest chile pepper you ever ate, then imagine an even hotter one that you

26 would never eat, and then imagine touching that pepper and inadvertently sticking your

27 finger in your eye. That is what a small dose of pepper spray is like.”). The same is true

28 ORDER – 6

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 7 of 12

1 for the projectiles that SPD fires into crowds, which can cause intense pain and bruising.

2 Id. ¶¶ 38-47. Dkt. # 25 ¶¶ 6-7, Exs. A & B. Though “less lethal,” these devices have

3 been sufficiently lethal to deter some protestors from protesting again. See, e.g., Dkt. # 9

4 ¶¶ 12-13 (“I do feel anxious though, especially about protesting because of police

5 presence at the protests.”); Dkt. # 17 ¶ 11 (“[E]very day I participate in demonstrations

6 where the Seattle Police Department are present, my anxiety undoubtedly increases. I

7 begin to worry and prepare for the same suffocating feeling I experienced because of

8 their use of extreme force and violence against peaceful protestors.”). The Court holds

9 that SPD’s use of these weapons would chill a person of “ordinary firmness” from

10 protesting.

11

Finally, Plaintiffs have shown that the protests were a substantial or motivating

12 factor in SPD’s conduct. Plaintiffs contend that SPD indiscriminately threw an excessive

13 amount of chemical agents at peaceful protests over police brutality. Dkt. # 6 at 25.

14 They argue that this reveals that a “substantial or motivating purpose” of the force was

15 Plaintiffs’ exercise of their First Amendment rights. Id. The Court agrees. The use of

16 indiscriminate weapons against all protesters—not just the violent ones—supports the

17 inference that SPD’s actions were substantially motivated by Plaintiffs’ protected First

18 Amendment activity. The City objects, however, arguing that the protestor’s message

19 has been constant while the SPD’s use of less-lethal weapons has decreased over time.

20 Dkt. # 29 at 16. Thus, they suggest, SPD’s actions were not motivated by Plaintiffs’

21 protest. Id. But it is not clear to the Court that, under the third prong of the retaliation

22 analysis, Plaintiffs must show that they were retaliated against every time they exercised

23 their First Amendment rights. The law clearly requires only that the SPD’s actions be

24 substantially motivated by Plaintiffs’ conduct.

25

In sum, Plaintiffs have made a clear showing of a likelihood of success on the

26 merits on their First Amendment claim.

27

28 ORDER – 7

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 8 of 12

1

ii. Fourth Amendment Claim

2

“A Fourth Amendment claim of excessive force is analyzed under the framework

3 outlined by the Supreme Court in Graham v. Connor.” Davis v. City of Las Vegas, 478

4 F.3d 1048, 1053-54 (9th Cir. 2007) (quoting Smith v. City of Hemet, 394 F.3d 689, 700

5 (9th Cir. 2005) (en banc)). Under the objective reasonableness standard, a court must

6 balance the “nature and quality of the intrusion on a person’s liberty with the

7 countervailing governmental interests at stake to determine whether the force used was

8 objectively reasonable under the circumstances.” Id. (quoting Smith, 394 F.3d at 701)

9 (internal quotation marks omitted). “Reasonableness” of a given use of force must be

10 measured from the perspective of a reasonable officer on the scene and must appreciate

11 the “split-second judgments” that officers must often make. Graham v. Connor, 490 U.S.

12 386, 396 (1989). The Ninth Circuit has held that it is unreasonable to use pepper spray,

13 projectile bean bags, and pepper ball projectiles against individuals “who were suspected

14 of only minor criminal activity, offered only passive resistance, and posed little to no

15 threat of harm to others.” Nelson v. City of Davis, 685 F.3d 867, 884-857 (9th Cir. 2012)

16

Both testimonial and video evidence establish that SPD likely violated Plaintiffs’

17 Fourth Amendment rights. Plaintiffs testify that they were peacefully protesting (or

18 reporting on the protests) when they fell victim to the weapons at issue. Dkt. # 9 ¶¶ 3-4

19 (tear gassed); Dkt. # 12 ¶ 5 (tear gassed); Dkt. # 14 ¶ 4 (pepper sprayed); Dkt. # 17 ¶¶ 3-4

20 (tear gassed). And the video evidence supports these accounts. A video of a June 1,

21 2020 protest in Capitol Hill suggests that SPD exerted excessive force without

22 provocation—the protesters were largely peaceful, SPD changed its posture by replacing

23 frontline officers on bicycles with officers donning gas masks, and then SPD deployed a

24 battery of pepper spray, flash-bang grenades, and tear gas. Dkt. # 19 ¶ 3; see also id. ¶ 4

25 (June 2, 2020 Capitol Hill protest). At most, this evidence shows that Plaintiffs, and

26 many protesters alike, were engaging in minor property crime and offered only passive

27 resistance at the time they were attacked.

28 ORDER – 8

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 9 of 12

1

The Court is satisfied that, on this record, Plaintiffs have shown a likelihood of

2 success on their Fourth Amendment claim.

3

B. Likelihood of Suffering Irreparable Harm

4

“It is well established that the deprivation of constitutional rights ‘unquestionably

5 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

6 (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)). Further, “[t]he loss of First

7 Amendment freedoms, for even minimal periods of time, unquestionably constitutes

8 irreparable injury.” Associated Press v. Otter, 682 F.3d 821, 826 (9th Cir. 2012) (quoting

9 Elrod, 437 U.S. at 373).

10

Plaintiffs have established a threat of immediate, irreparable harm in the absence

11 of a TRO. They have shown a likelihood of success on their First and Fourth

12 Amendment claims, demonstrating that irreparable injury has already occurred. The use

13 of less-lethal, crowd control weapons has already stifled some speech even if

14 momentarily. And the protests are live. In fact, a statewide walkout is set to commence

15 moments after this Order is entered. Dkt. # 6 at 20. Without a TRO, Plaintiffs may face

16 the same constitutional deprivation that they experienced in days past.

17

C. Balance of Hardships and Public Interest

18

When the government is a party, the last two prongs of the injunction analysis

19 merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing

20 Nken v. Holder, 556 U.S. 418, 435 (2009)). As to the balance of hardships, “serious First

21 Amendment questions compel[]” a finding that the “balance of hardships tips sharply in

22 [the plaintiffs’] favor.” Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1059 (9th Cir.

23 2007) (second alteration in original) (internal quotation marks omitted) (quoting

24 Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 973 (9th Cir. 2002)). And as to

25 public interest, “it is always in the public interest to prevent the violation of a party’s

26 constitutional rights.” Melendres, 695 F.3d at 1002 (internal quotation marks omitted).

27

The City concedes that Plaintiffs’ “constitutional rights weigh heavily on the

28 ORDER – 9

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 10 of 12

1 Plaintiffs’ side of the scale” and notes that SPD’s policies aim to facilitate and support

2 free speech, not stifle it. Dkt. # 29 at 19. But, it says, Plaintiffs fail to address other

3 interests here, such as the life and safety of the public and officers or the need to protect

4 public and private property. Id. It is true, Plaintiffs do not offer the Court any other

5 interests to weigh. And this Court appreciates that officers sometimes, especially in the

6 circumstances we find ourselves in, carry on a thankless job. That said, the last two

7 prongs still favor an injunction.

8

The balance of hardships favors an injunction. As discussed, there are serious

9 First Amendment questions here, tipping the balance in Plaintiffs’ favor. What is more,

10 the City has already conceded that “safety was shattered for many by the images, [of]

11 sound and gas more fitting of a war zone.” Dkt. # 6 at 32. In fact, at one point, the

12 Seattle Mayor and Chief of Police both announced a temporary ban on tear gas. Dkt. # 1

13 ¶ 62. These actions strongly suggest that the City has overstepped, causing protesters

14 undue hardship.

15

The public interest favors an injunction. First, Plaintiffs make a strong showing of

16 past and future constitutional violations, which under the case law is always in the public

17 interest to prevent. Second, these protests occur during a pandemic, the spread of which

18 may be exacerbated by chemical irritants such as tear gas and pepper spray. Dkt. # 6 at

19 29 n.7; Dkt. # 10 ¶¶ 20, 28, 48-55. Third, the weapons are indiscriminate, used on entire

20 crowds of peaceful protestors without targeting any single agitator or criminal. Dkt. # 6

21 at 24. Because they are indiscriminate, they may even spill into bystanders’ homes or

22 offices as they have done before. See, e.g., Dkt. # 8 ¶¶ 7-8; Dkt. # 13 ¶¶ 3-7. Hence, the

23 public interest would be advanced by an injunction.

24

Plaintiffs have met their burden on the final two prongs of the injunction analysis.

25

V. ORDER

26

For the reasons stated above, the Court GRANTS in part Plaintiff’s Motion for

27 Temporary Restraining Order (Dkt. # 6) and temporarily ENJOINS the City of Seattle as

28 ORDER – 10

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 11 of 12

1 follows:

2

(1) The City of Seattle, including the Seattle Police Department and any other

3

officers, departments, agencies, or organizations under the Seattle Police

4

Department’s control (collectively, “the City”), is hereby enjoined from

5

employing chemical irritants or projectiles of any kind against persons

6

peacefully engaging in protests or demonstrations. This injunction includes:

7

(1) any chemical irritant such as and including CS Gas (“tear gas”) and OC

8

spray (“pepper spray”) and (2) any projectile such as and including flash-bang

9

grenades, “pepper balls,” “blast balls,” rubber bullets, and foam-tip projectiles.

10

This Order does not preclude individual officers from taking necessary,

11

reasonable, proportional, and targeted action to protect against a specific

12

imminent threat of physical harm to themselves or identifiable others or to

13

respond to specific acts of violence or destruction of property. Further, tear

14

gas may be used only if (a) efforts to subdue a threat by using alternative

15

crowd measures, including pepper spray, as permitted by this paragraph, have

16

been exhausted and ineffective and (b) SPD’s Chief of Police has determined

17

that use of tear gas is the only reasonable alternative available. The Chief of

18

Police may only authorize limited and targeted use of tear gas and must direct

19

it to those causing violent or potentially life-threatening activity. To the extent

20

that chemical irritants or projectiles are used in accordance with this paragraph,

21

they shall not be deployed indiscriminately into a crowd and to the extent

22

reasonably possible, they should be targeted at the specific imminent threat of

23

physical harm to themselves or identifiable others or to respond to specific acts

24

of violence or destruction of property.

25

(2) In the event that Plaintiffs seek relief for an alleged violation of this Order, the

26

City must respond to the motion for relief within 24 hours.

27

(3) Because this is a non-commercial case, the balance of hardships favors

28 ORDER – 11

Case 2:20-cv-00887-RAJ Document 34 Filed 06/12/20 Page 12 of 12

1

Plaintiffs, and there is no realistic likelihood of harm to the City of Seattle

2

from enjoining its conduct, the Court waives the security bond requirement.

3

(4) This Order will expire fourteen days after entry unless extended by the Court

4

for good cause. Fed. R. Civ. P. 65(b)(2).

5

6

DATED this 12th day of June, 2020.

7

8

A

9

10

The Honorable Richard A. Jones United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ORDER – 12

 
 Case 2:20-cv-00887-RAJ Document 42 Filed 06/17/20 Page 1 of 3

1

The Honorable Richard A. Jones

2

3

4

5

6 UNITED STATES DISTRICT COURT

7

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 BLACK LIVES MATTER SEATTLE-KING COUNTY, ABIE EKENEZAR, SHARON
10 SAKAMOTO, MURACO KYASHNATOCHA, ALEXANDER WOLDEAB,
11 NATHALIE GRAHAM, AND ALEXANDRA CHEN,
12 Plaintiffs,
13 vs.
14 CITY OF SEATTLE,
15 Defendant.
16

No. 2:20-CV-00887 RAJ
STIPULATED ORDER ENTERING A PRELIMINARY INJUNCTION

17 WHEREAS on June 12, 2020, this Court conducted a hearing on Plaintiffs’ Motion for
18 Temporary Restraining Order, having reviewed briefs and supporting materials from the parties and
19 hearing argument from counsel. See Dkts. 6-22, 25-33, 35-36.
20

21

WHEREAS, on June 12, 2020, this Court entered a Temporary Restraining Order against

22 Defendant, City of Seattle, terminable on June 26, 2020. Dkt. 34.

23

STIPULATED ORDER ENTERING A PRELIMINARY INJUNCTION - 1 2:20-CV-00887 RAJ

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 42 Filed 06/17/20 Page 2 of 3

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WHEREAS, on June 17, 2020, the parties stipulated and agreed to entry of a preliminary

2 injunction without any admission by Defendant of wrongdoing or violation of law.

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Based on the foregoing and the record before the Court, the Court hereby ORDERS:

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(1) The City of Seattle, including the Seattle Police Department and any other officers,

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departments, agencies, or organizations under the Seattle Police Department’s control

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(collectively, “the City”), is hereby enjoined from employing chemical irritants or projectiles

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of any kind against persons peacefully engaging in protests or demonstrations. This injunction

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includes:

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(1) any chemical irritant such as and including CS Gas (“tear gas”) and OC spray (“pepper

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spray”) and (2) any projectile such as and including flash-bang grenades, “pepper balls,”

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“blast balls,” rubber bullets, and foam-tip projectiles. This Order does not preclude individual

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officers from taking necessary, reasonable, proportional, and targeted action to protect against

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a specific imminent threat of physical harm to themselves or identifiable others or to respond

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to specific acts of violence or destruction of property. Further, tear gas may be used only if

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(a) efforts to subdue a threat by using alternative crowd measures, including pepper spray, as

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permitted by this paragraph, have been exhausted and ineffective and (b) SPD’s Chief of

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Police has determined that use of tear gas is the only reasonable alternative available. The

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Chief of Police may only authorize limited and targeted use of tear gas and must direct it to

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those causing violent or potentially life-threatening activity. To the extent that chemical

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irritants or projectiles are used in accordance with this paragraph, they shall not be deployed

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indiscriminately into a crowd and to the extent reasonably possible, they should be targeted

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at the specific imminent threat of physical harm to themselves or identifiable others or to

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respond to specific acts of violence or destruction of property.

STIPULATED ORDER ENTERING A PRELIMINARY INJUNCTION - 2 2:20-CV-00887 RAJ

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

Case 2:20-cv-00887-RAJ Document 42 Filed 06/17/20 Page 3 of 3

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(2) In the event that Plaintiffs seek relief for an alleged violation of this Order, the City must

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respond to the motion for relief within 24 hours.

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(3) Because this is a non-commercial case, the balance of hardships favors Plaintiffs, and there

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is no realistic likelihood of harm to the City of Seattle from enjoining its conduct, the Court

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waives the security bond requirement.

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(4) This Order will expire on September 30, 2020.

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(5) This Order is extendable or terminable by stipulation of the parties.

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DATED this 17th day of June, 2020.

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The Honorable Richard A. Jones

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United States District Judge

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STIPULATED ORDER ENTERING A PRELIMINARY INJUNCTION - 3 2:20-CV-00887 RAJ

Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200

 
 Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 1 of 16

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THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

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AT SEATTLE

9 BLACK LIVES MATTER SEATTLE-

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KING COUNTY, ABIE EKENEZAR, SHARON SAKAMOTO, MURACO

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KYASHNA-TOCHA, ALEXANDER WOLDEAB, NATHALIE GRAHAM,

12 AND ALEXANDRA CHEN,

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Plaintiffs,

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v.

15 CITY OF SEATTLE,

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Defendant.

No. 2:20-cv-887 RAJ MOTION FOR ORDER TO SHOW CAUSE WHY CITY OF SEATTLE SHOULD NOT BE HELD IN CONTEMPT FOR VIOLATING THE PRELIMINARY INJUNCTION NOTE ON MOTION CALENDAR: July 30, 2020 Oral Argument Requested

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MOTION FOR CONTEMPT (No 2:20-cv887 RAJ)
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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 2 of 16

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2 I.
3 II. 4
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TABLE OF CONTENTS
PAGE INTRODUCTION ............................................................................................................. 1 BACKGROUND ............................................................................................................... 2 A. SPD Violated the Injunction by Targeting Peaceful Protesters and
Deploying Projectiles Indiscriminately into Crowds. ............................................ 2 B. SPD Violated the Injunction by Targeting Journalists .......................................... 7 C. SPD Violated the Injunction by Targeting Legal Observers ................................. 9 D. SPD Violated the Injunction by Targeting Medics................................................ 9 ARGUMENT ................................................................................................................... 10 A. Legal Standard for Contempt............................................................................... 10 B. The City Plainly Violated the Preliminary Injunction by Targeting
Peaceful Protestors, Journalists, Legal Observers, and Medics........................... 11 CONCLUSION................................................................................................................ 12

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MOTION FOR CONTEMPT (No. 2:20-cv887) – i
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I. INTRODUCTION

2

The City of Seattle has willfully and brazenly violated the preliminary injunction. The

3 Court should hold the City in contempt. Two days ago, the Seattle Police Department (SPD)

4 ambushed peaceful protesters with a level of violence that surpasses that seen in early June.

5 Protestors were indiscriminately hit with blast balls, pepper spray, and blunt force objects.

6 Journalists were trampled. Medics were maced for attending to patients. Legal observers were

7 shot at close range. The injuries were extensive.

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The City’s actions—documented in horrific detail in the declarations accompanying this

9 motion—plainly violate the preliminary injunction. The City will argue that its actions were

10 justified because some protesters allegedly committed property crimes and threw things at police

11 officers. But that would be the same argument the City made before, which the Court rejected in

12 declaring that it is unconstitutional to use force against an entire crowd because of the actions of

13 a few specific protesters who individually pose a threat. The evidence shows many instances of

14 indiscriminate use of the weapons against people who are not suspected of any alleged violence

15 or property crime, without warning and without provocation. A “Wall of Moms” poses no threat

16 to a line of armored police officers in riot gear. Those mothers were not violent, were not

17 wielding weapons, and were not breaking any laws; they were there to protest police brutality.

18 Instead, they were met with more police brutality. For many protesters, struggling to understand

19 why the SPD reacted so violently, this felt like vengeance. The sheer amount of blast balls and

20 pepper spray used against protesters supports that notion.

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Simply put, it is always wrong to attack protesters peacefully exercising their

22 constitutional rights with potentially lethal force. It is never justified to attack journalists,

23 medics, legal observers. It is always unconstitutional to fire indiscriminately into a crowd. But

24 that’s exactly what SPD did throughout July 25, 2020, in clear violation of this Court’s order.

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The Court should order the City to show cause why it should not be held in contempt.

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MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) – 1
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II. BACKGROUND

2

On June 12, 2020, the Court enjoined the City of Seattle from “employing chemical

3 irritants or projectiles of any kind against persons peacefully engaging in protests or

4 demonstrations.” Dkt. 34 at 11. Chemical irritants and projectiles were defined to include

5 pepper spray, flash-bang grenades, pepper balls, blast balls, rubber bullets, and foam-tipped

6 projectiles. Id. The only exception allows for individual officers to deploy these chemical 7 weapons or projectiles against peaceful protesters if and only if it is 1) necessary; 2) reasonable;

8 3) proportional, and 4) targeted to either protect against “specific imminent threat of physical

9 harm” or to respond to “specific acts of violence or destruction of property.” Id. On June 17, 10 2020, the Court converted its June 12 order into a preliminary injunction in effect through

11 September 30, 2020 (Dkt. 42) (“the Injunction”).

12

On July 25, 2020, protesters in Seattle again took to the streets, to peacefully protest

13 police violence. Soon after the demonstrations started, as detailed in the many declarations filed

14 with this motion. SPD began using indiscriminate and excessive force to suppress the mostly

15 peaceful demonstrations against police violence.1

16 A. SPD Violated the Injunction by Targeting Peaceful Protesters and Deploying

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Projectiles Indiscriminately into Crowds.

Many witnesses consistently say the same thing: on July 25, SPD suddenly and without 18

warning divided the protesters into two groups and began an all-out assault. SPD officers lobbed 19

flash-bang grenades, blast balls filled with pepper spray, and foam tipped bullets into the middle 20

of retreating crowds. Bonifilia Decl., at ¶¶ 7-9; Matney Decl., at ¶¶ 10, 19; Butler Decl., at ¶¶ 521

7. People screamed and ran in terror as chaos ensued. Baker Decl. ¶ 14; Sill Decl. ¶ 7. 22

Jessica Bonafilia was marching peacefully and without incident. When she reached the 23

SPD East Precinct, SPD threw flash bangs to push the crowd back down Pine Street. Bonifilia 24

25 Decl., ¶¶ 5-6. She never heard a warning or dispersal order. Id. ¶ 6. The entire crowd tried to

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1 Counsel conferred about this motion on July 27, 2020. Counsel for the City committed to providing

Plaintiffs information about what less lethal weapons were used on July 25, 2020. David Perez Decl., Ex. D.
MOTION FOR CONTEMPT (No 2:20-cv-

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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 5 of 16

1 retreat as SPD continued deploying flash-bang grenades and other incendiary devices. Id. ¶¶ 6-7.

2 SPD officers lobbed blast balls overhand into the middle of the crowd. Id. ¶ 7. Standing about

3 10 rows back from the police line in the crowd of protesters, she was hit by one of those blast

4 balls, which exploded on her right leg. Id. ¶ 9. The blast knocked her to the ground, singed

5 her clothing, and gave her first and second-degree burns. Id. ¶¶ 9, 16. By the time she

6 reached safety from SPD’s violence, her thighs were covered in blood. Id. ¶13. Four of her

7 friends were also hit by SPD projectiles. Id. ¶17.

8

Kathryn Forest joined the “Wall of Moms” group. Id. ¶ 5. In her words “the group has

9 become a means for mothers to more tangibly support the anti-racism, anti-police brutality

10 movement by shielding other protesters who might be more readily targeted with aggressive law

11 enforcement tactics.” Id. They did not have weapons, they did not destroy any property, and

12 they did not hurt anyone. Id. ¶ 8. They posed no threat to anyone. Id. When she returned to Cal

13 Anderson Park after marching, she was about to start her good-byes and start heading home to

14 Tacoma—but then came the explosions. Id. ¶ 9. Law enforcement emerged in force and

15 began deploying flash grenades indiscriminately into the crowd. Id. Terrified and disoriented

16 she linked arms with the Wall of Moms. Id. ¶¶ 11-13. The police lobbed flash bang grenades at

17 their feet. Id. ¶ 14. One detonated at her feet and injured her. Id. The Wall of Moms raised

18 their umbrellas to shield themselves. Id. ¶15. The officers began spraying mace wildly at them

19 and telling them to stay back, even though they had not moved forward. Id.; see also Baker

20 Decl. ¶¶ 22-23. Ms. Forest peeked behind her umbrella, when an officer sprayed her at close

21 range in the face—incapacitating her. Forest Decl. ¶ 16. Her eyes, face, and lungs were burning

22 as she was grabbed by the other Wall of Moms women; saline rinse didn’t help. Id. ¶ 17. Ms.

23 Forest had never experienced anything like this and left thinking the police wanted to attack the

24 Wall of Moms—they seemed angry and fixated on hurting them. Id. ¶ 18.

25

Sophia Bruce was peacefully marching with her parents when without warning SPD

26 approached from behind and fired flash bangs, blast balls, and pepper spray indiscriminately into

MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –3
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1 the crowd. Bruce Decl. ¶ 7. She held out her umbrella to protect against the blasts, but one

2 flash-bang detonated beside her. Id. ¶ 8. A piece of shrapnel from the flash-bang grenade struck

3 her head and caused serious injury. Id. ¶¶ 6-9. The images are horrifying.

4

Meanwhile, Cass Bunting was marching peacefully. Bunting Decl. ¶¶ 3-4. Near the end

5 of the march, and without warning, SPD began firing incendiary devices indiscriminately into

6 the crowd. Id. ¶ 7. Bunting felt an explosion at their feet and immediately lost all feeling in their

7 feet. Id. ¶ 8. The incendiary device burned a large area on both ankles, leaving Bunting unable

8 to walk for an hour. Id. ¶¶10, 13. Bunting screamed for a medic and was carried out to receive

9 medical attention. Id. ¶ 12; Ex. A-E (photos of injuries).

10

Nearby, Jessica Butler saw SPD throwing flash bangs towards peaceful protesters. Butler

11 Decl., ¶¶ 5-6. Ms. Butler did not see protesters doing anything other than peacefully

12 demonstrating. Id. ¶ 6. Shortly thereafter, she was struck in the back of the leg with a projectile.

13 Id. ¶7. SPD struck a person next to her in the back. Id. Shortly after, she went home. Id.

14

Joshua Matney joined the protest at Broadway and East Pine Street where he found SPD

15 firing projectiles indiscriminately into the crowd of peaceful protestors. Matney Decl. ¶ 10.

16 (“These officers were firing baton rounds – rubber bullets or sponge-tipped bullets –

17 indiscriminately into the crowd.”). An officer about ten feet away fired a projectile at Matney

18 and hit him in the right thigh. Id. ¶ 12. A few minutes later, SPD began “throwing blast balls

19 deep into the crowd, indiscriminately. They were not just throwing them at the front.” One blast

20 ball struck Matney in the ankle and exploded—he had to go to the ER. Id. ¶ 21, 29.

21

Tyler Sill was in the middle of the crowd peacefully marching when SPD started

22 launching incendiary devices and other projectiles near the East Precinct without any warning.

23 Sill Decl.. ⁋⁋ 7-8. He too was hit by a blast ball that exploded so close to him that it burned his

24 leg in two places, through his pants. Id. ⁋ 12. He was never closer than fifty feet from an SPD

25 officer. Id. ⁋ 13. He saw many other blast balls explode right next to people. Id. ⁋ 15 (photos of

26 his injuries).

MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –4
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1

A poignant example of gratuitous violence can be seen in SPD’s aggressive grabbing and

2 destroying protesters’ umbrellas. Addams Decl. ¶¶ 5, 7. Umbrellas are not weapons. They are 3 purely defensive, to protect protesters from gas and projectiles launched by the police. Id. ¶ 6; 4 Matney Decl., at ¶ 11. Nevertheless, SPD instigated conflict by ripping umbrellas from the

5 hands of protesters. Addams Decl., at ¶ 5. Police simultaneously shot chemical agents and

6 projectiles into the crowd at close range. Id., ¶ 9; Matney Decl., ¶ 6 (police officers stole the 7 shield from woman prior to deploying pepper spray). Protesters were left vulnerable and

8 defenseless to these weapons. Addams Decl., ¶ 7, 9.

9

Even those at the back of the demonstration were not safe from SPD’s excessive force.

10 Trimble Decl. at ¶ 2. Jessica Trimble has limited mobility and cannot run. Id. ¶¶ 3-4. She 11 decided to join the July 25 protest after seeing SPD target the media with pepper spray. Ms.

12 Trimble thought she would be safe in the back, id., at ¶ 4, but SPD officers approached them

13 quickly from behind and without warning fired flash bangs and pepper balls into the crowd, id. ¶

14 7. She moved away as fast as she could. Id. ¶¶ 6-7. Once she finally got away, she left the

15 demonstration and went home. Id. ¶ 9.

16

And, those at the front who tried to run from SPD’s violence were often trapped and

17 subjected to more force. See Merino Decl., at ¶ 8. (“I was complying with the officers and was 18 backing up slowly. The group was tight, and many people were scared, so we had to be careful

19 not to cause a stampede. . . . I was not making eye contact or speaking to an officer, but I was

20 pepper sprayed directly in the face for no reason.”). Even after Ms. Merino was immobilized by

21 the pepper spray, an officer targeted her with a blast ball that exploded on her ankle. Id.2

22

Video from July 25 shows that SPD’s use of force was not only indiscriminate but also

23 directed against people who were retreating and posed no threat to SPD officers. See Mike 24

25

2 Similarly, Plaintiff Alexandra Chen was part of a group of protesters trying to retreat from the police

while the police were firing flash bangs into the crowd. The protesters retreated for several blocks, and still the
26 police followed, physically pushing protesters from behind and using flash bangs and chemical irritants on anyone

who was not moving as quickly as the officers wanted them to move. Chen Decl. ¶¶ 6-9.
MOTION FOR CONTEMPT (No 2:20-cv-

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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 8 of 16

1 Baker (@ByMikeBaker), Twitter (Jul. 25, 2020, 7:27 PM),

2 https://twitter.com/ByMikeBaker/status/1287212851807940608. The video shows SPD

3 launching an incendiary device that appears to strike a woman who was ten to twenty feet behind

4 the line of protesters that SPD was pushing back. Id. (0:11-0:19). And as protesters tried to help

5 her, SPD pepper sprayed them, too. SPD continued spraying the protesters as they ran, ignoring

6 their screams of agony and terror. Id. (0:25-0:44). SPD then threw a second woman to the

7 ground, slamming her head onto the concrete curb. Id. (0:17-0:22). The second woman is also

8 visible at the beginning of this clip, wearing a pink bandana, clearly trying to get to safety, away

9 from SPD. Id. (0:01-0:11). Officers showed little regard for the safety of persons injured by

10 their actions. Id. (0:27 “there’s a person on the ground”; 0:34).

11

Another video shows SPD shooting pepper spray at a man standing at his bike, presenting

12 no danger to the SPD officers. Patrick Malone (@pmalonedc), Twitter (Jul. 25, 2020, 7:29 PM),

13 https://mobile.twitter.com/pmalonedc/status/1287213310505410562.

14

A third video shows an officer spraying a protester with pepper spray as another officer

15 hits him with a baton. When the protester fell to the ground, the SPD officer hit him in the face

16 again with pepper spray. Then, SPD attacked people trying to help the defenseless protester on

17 the ground, spraying them with pepper spray even as they pull the protester to safety.

18 @daeshikjr, Twitter (Jul. 25, 2020, 11:16 PM),

19 https://twitter.com/daeshikjr/status/1287270463773609987?s=09. See also Declaration of

20 Corinne Arnold (“Arnold Decl.”) ⁋ 19.

21

The experiences of the witnesses who have submitted declarations in this case do not

22 reflect unique or isolated incidents. They paint a picture of a clear resurgence of the excessive

23 force and retaliation by SPD that the June 17 Preliminary Injunction sought to enjoin.

24 SPD’s actions were neither necessary, reasonable, proportional, nor targeted to a specific threat.

25 SPD’s response on July 25 also showcased alarming tactics that also violate the June 17

26 Preliminary Injunction. SPD would, without warning, begin advancing their line, launching

MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –6
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1 pepper spray, projectiles, and other incendiary devices to push back the protesters. Oberstadt

2 Decl. ⁋ 3 (protester close enough to the police to hear a dispersal order given). Once SPD had

3 pushed back the protesters, SPD would retreat back to where they began. Protesters would then

4 start to fill in the void. Then, after waiting some time, SPD would move in again with the same

5 approach. SPD’s advancements never appear to be in response to any specific threat and instead

6 seem to be an opportunity for SPD to use force against protesters and retaliate against them for

7 exercising their first amendment rights. Kyashna-tochá Decl. ⁋⁋ 14, 16-25.

8

After observing the July 25 protest, the NLG also concluded that SPD violated the

9 Court’s injunction by “engag[ing] in the indiscriminate use of crowd control munitions against

10 largely peaceful protestors.” Perez Decl., Ex. C.

11 B. 12

SPD Violated the Injunction by Targeting Journalists There is never any reason to attack journalists present at demonstrations to record the

13 events unfolding and provide a critical check on governmental power. Journalists are often

14 clearly identifiable by their press badges and known to police.

15

But on July 25, SPD repeatedly targeted journalists with brutal violence. SPD hit Omari

16 Salisbury, the journalist who captured the “pink umbrella” video and other footage used in

17 support of the preliminary injunction, at least three separate times on July 25. As SPD,

18 without warning, began advancing toward the crowd, SPD officers started shooting at Mr.

19 Salisbury who was off to the side, away from the retreating crowd. Omari Salisbury, Converge

20 Media, Livestream, Seattle Protests, Facebook, at 3:24:04-3:24:43 (Jul. 25, 2020, 2:26 PM),

21 https://www.facebook.com/256456004789181/videos/377506619883346. As the shots

22 continued, Mr. Salisbury exclaimed “he’s targeting!” Id. 3:24:44-3:24:52. Mr. Salisbury and

23 began coughing from the pepper spray and yelling “press!” “media!” and “our hands are up over

24 here!” Id. 3:24:54-3:25:16. Explosions continued going off in the foreground as gas lingered in

25 the street. Id. 3:25:16-18. Second, as SPD launched flash bangs into a large crowd, one exploded

26 in a group of journalists hitting Mr. Salisbury’s producer in the neck. Id. 2:48:50-2:50:15. Less

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1 than a minute later, an SPD officer lobbed another flash bang grenade into the middle of the

2 crowd, near Mr. Salisbury and other media. Id. 2:50:53-2:50:57. Mr. Salisbury’s gas mask was

3 also covered in blue dye, evidence that Mr. Salisbury had been targeted. Id. 3:13:44-3:14:55.

4 Finally, SPD attempted to push the protesters back, including Mr. Salisbury and other journalists

5 huddled together. But because they were at the front line, the journalists could only retreat as

6 fast as the people behind them. Mr. Salisbury and others tried to tell SPD that they were moving

7 back as fast as they could, but those statements were met pepper spray as multiple officers maced

8 the journalists. @lukeryderrr, Twitter (Jul. 25, 2020, 4:45 PM),

9 https://twitter.com/lukeryderrr/status/1287172224588214272.

10

Mr. Salisbury and his team were not the only journalists to be hit with pepper spray by

11 SPD. Renee Raketty is a reporter for the Seattle Gay News. On July 25, she was sitting alone on

12 a fire escape taking pictures behind the police line with her press credentials draped around her

13 neck. She captured an SPD Officer intentionally and discriminately targeting her with a

14 blast ball. Renee Raketty, Facebook, at 00:10-00:22 (Jul. 26, 2020, 1:48 AM),

15 https://www.facebook.com/robert.raketty/videos/pcb.10222276500928791/10222276497168697/

16 ?type=3&theater 0:10-0:22. She was the only person in the area and did nothing to provoke such

17 a response, and was given no warning in advance. In the bottom left hand corner of the video, an

18 SPD officer casually walks near her, and tosses a blast ball at her.

19

Joey Wieser is an independent journalist who has spent the last two months documenting

20 SPD interacting with protesters. Wieser Decl. at ¶ 2. In those two months he had never

21 witnessed SPD targeting the media—until July 25, 2020. As he stood on a corner with other

22 media, SPD started firing blast balls directly at them even as they shouted “media, media!” Id. ¶

23 4. They also tried retreating. But again, because they stood on the front lines, they could only

24 retreat as fast as the protesters behind them. But it was not fast enough for SPD. Despite

25 identifying himself as media earlier, SPD shoved him and then shot pepper spray into his mouth.

26 Id. ¶ 5. He tried retreating again, but couldn’t escape before of the larger slow moving crowd.

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1 An SPD officer pepper sprayed him again, this time directly in the face. Id. ¶ 6. The pepper

2 spray blinded him. He screamed for help, was disoriented, and had to leave the protest to reach a

3 safe space where a bystander poured various fluids into his eyes to relieve the pain. Id. ¶ 5. Mr.

4 Wieser left and did not return to either protest or document the protest. Id. ¶ 8.

5

Mike Carter, a 43-year veteran Seattle Times reporter, who spent much of his career

6 reporting on law enforcement and police accountability said that SPD’s targeting of journalists

7 during the July 25 protests was, based on his observation, retaliation rather than responses to

8 illegal conduct or threats to safety. Mike Carter (@stimesmcarter), Twitter (Jul. 26, 2020, 11:41

9 AM), https://twitter.com/stimesmcarter/status/1287458152871366656.

10 C. 11

SPD Violated the Injunction by Targeting Legal Observers NLG legal observers are immediately recognizable, even in a crowd. Each legal observer

12 wears a bright green hat, which says “National Lawyers Guild Legal Observer.” The NLG has

13 observed protests in Seattle for decades. In early July 2020, NLG notified SPG that it would

14 send observers to monitor the protests. Perez Decl., Ex. A. The SPD responded, acknowledging

15 the importance of legal observers, and assuring NLG that they would not be targeted with police

16 violence. Id., Ex. B. SPD broke its promise.

17

The NLG reported that SPD officers purposely hit legal observers with flash bang

18 grenades, and with bicycles, needlessly shoved and grabbed legal observers, and deliberately

19 pepper sprayed one legal observer in the face at close range. Id., Ex. C. Another NLG observer

20 captured the incident on video. Heidi Groover (Seattle Times) (@heidigroover), Twitter (Jul. 26,

21 2020, 7:39 AM), https://twitter.com/heidigroover/status/1287532513192075265. The legal

22 observer’s bright green hat is clearly visible as the SPD officer pepper sprays her a few feet

23 away. Id. The only other person visible in the clip had their back turned to the officer.

24 D. 25

SPD Violated the Injunction by Targeting Medics Medics are an increasingly common presence at protests against police brutality, and do

26 not present a threat to anyone. An organization of medical professionals attended the July 25

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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 12 of 16

1 protest. Elise Barrett, a nurse supervisor, and former intensive care unit nurse who specialized in

2 helping patients with traumatic injuries, volunteered to assist protesters in need. She even wore

3 her scrubs to be easily identifiable as a medical professional to both SPD and protesters. Around

4 5:00 p.m. she heard a call for a medic and went to investigate. She saw an SPD officer pin a man

5 against a retaining wall. Ms. Barrett approached the officer with her hands out to show she was

6 not a threat and to offer first aid. Almost instantly she was pepper sprayed directly in the face by

7 another officer while a third officer knocked her backwards to the ground. Video shows no

8 reason to believe she posed a threat. Worse, the video shows that SPD targeted her precisely

9 because she was an identifiable medical professional trying to help a protester.

10

That would only be the first time Ms. Barrett was pepper sprayed on July 25. Later that

11 evening, Ms. Barrett was pepper sprayed again when she went to guide protesters who had been

12 blinded by SPD’s pepper spray to safety, off the street, as SPD advanced against the crowd.

13 Barrett Decl. ⁋⁋ 16-17. As she moved people out of the street, she got caught at the back of the

14 crowd of retreating protesters. SPD pushed the crowd further back, but people in the back could

15 only move as fast as those in the front. SPD officers pushed her to move faster. She turned to

16 say to the officers, “I’m going as fast as I can,” but before she could get a word out an SPD

17 officer sprayed her directly in the face with pepper spray. She was still wearing her scrubs.

18 The sprays were so intense that they saturated her mask. Ms. Barrett, a volunteer medical

19 professional, struggled to breathe, her eyes and face burning. She wasn’t a threat. She’s a nurse.

20

III. ARGUMENT

21 A. Legal Standard for Contempt

22

The City of Seattle should be held in contempt for violating the June 17 Preliminary

23 Injunction. A party may be held in civil contempt where it “fail[ed] to take all reasonable steps

24 within the party’s power to comply [with a specific and definite court order].” Federal Trade

25 Comm’n v. Productive Marketing, Inc., 136 F Supp 2d 1096. 1106 (C.D. Cal. 2001), citing In re

26 Dual-Deck Video Cassette Recorder Antitrust Litigation, 10 F.3d 693, 695 (9th Cir 1993).

MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –10
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1 Willfulness is not an element of contempt. Id. (“there is no good faith exception to the 2 requirement of obedience to a court order”). A party who without just cause fails to comply with

3 an order of the court may be subject to “such other sanctions as the court may deem appropriate.”

4 LCR 11(c). “Sanctions for civil contempt may be imposed to coerce obedience to a court order,

5 or to compensate the party pursuing the contempt action for injuries resulting from the

6 contemptuous behavior, or both.” General Signal Corp. v Donallco, Inc., 787 F.2d 1376, 1380 7 (9th Cir. 1986). A party seeking contempt may also be entitled to attorneys’ fees and costs

8 incurred in bringing the motion. BMG Music v Perez, 952 F.2d 318, 320 (9th Cir. 1991).

9 B. The City Plainly Violated the Preliminary Injunction by Targeting Peaceful

10

Protestors, Journalists, Legal Observers, and Medics.

The City of Seattle can provide no adequate justification for its continued and escalated

11

use of pepper spray, blast balls, flash-bang grenades, and other projectiles against unquestionably

12

peaceful protesters and other neutral parties. In fact, the City has already conceded that what it

13

did was wrong: Mayor Durkan admitted that it was wrong for SPD officers to target NLG

14

observers and journalists calling these allegations “deeply troubling and chilling.”3 No amount

15

of property damage could justify the force SPD used a mile away against a large crowd of

16

protesters unconnected with the alleged crimes of earlier.

17

Neither can the SPD’s overwhelming response by justified by injuries to officers. Even

18

assuming SPD officers were injured by protesters, rather than their own weapons, this Court’s

19

order does not permit SPD to use force for retaliation. Officers may only use force against

20

protesters when such force is necessary, reasonable, proportional, and targeted as outlined in the

21

June 17 Preliminary Injunction. On July 25, SPD breached this standard.

22

SPD may claim there was a “riot.” But SPD declaring a “riot” does not invalidate or

23

dilute this Court’s June 17 Preliminary Injunction. In fact, calling a situation “a riot” has no

24

25

3 Bush, Evan, et. al., As Seattle protests resume Sunday, demonstrators and police trade allegations about
26 Saturday’s violence, Seattle Times (updated Jul. 26, 2020, 8:39 pm), https://www.seattletimes.com/seattle-news/as-

seattle-protests-resume-sunday-demonstrators-and-police-trade-allegations-about-saturdays-violence/.

MOTION FOR CONTEMPT (No 2:20-cv-

887 RAJ) –11

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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 14 of 16

1 legal effect at all on how SPD is permitted to treat protesters. SPD’s constitutional obligations to

2 peaceful protesters are the same whether SPD has declared a riot or not. The leading Washington

3 state case on this issue made clear that a person is not a “rioter” merely because they are in the

4 presence of others who may in fact be rioters. See State v. Moe, 174 Wash. 303, 306 (1933)

5 (stating that “[m]ere presence at the scene of the riot is not sufficient” and then vacating riot

6 conviction of person who was merely present and not participating as a rioter) (citations

7 omitted). Moreover, SPD cannot merely declare a riot and then consider an entire area of people

8 a specific threat, or use alleged violence one place to use indiscriminate force in a totally

9 different place. This is the exact type of violence the Preliminary Injunction sought to enjoin.

10

IV. CONCLUSION

11

In many ways, what happened on July 25 was worse than the events that led to the

12 Court’s June 12 order. In a vengeful outburst, the SPD deliberately targeted peaceful protesters,

13 medics attending to those protesters, journalists chronicling those protesters, and legal observers

14 sent to ensure those protesters’ rights are protected. This conduct is wrong even in the absence

15 of a court order. But here, it is especially troubling given the Court’s clear guidance that

16 peaceful protesters must not be targeted, and that projectiles cannot be deployed indiscriminately

17 into the crowd. The City willfully violated the Court’s order, and should be held in contempt.

18 Plaintiffs’ proposed order seeks not only to clarify the injunction already in place but also to

19 sanction the City for these blatant violations. The City must be held accountable.

20

A “two sides to every story” response isn’t good enough when peaceful protesters,

21 medics, journalists, and legal observers are getting shot in the ribs, head, legs, and face. Finding

22 the City in contempt, and sanctioning this conduct will go a long way towards ensuring it doesn’t

23 happen again.

24

25

26

MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –12
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1 DATED: July 27, 2020
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –13
148988058.4

By: s/ David A. Perez By: s/ Joseph M. McMillan By: s/ Carolyn S. Gilbert By: s/ Nitika Arora By: s/ Heath Hyatt By: s/ Paige L. Whidbee David A. Perez #43959 Joseph M. McMillan #26527 Carolyn S. Gilbert #51285 Nitika Arora #54084 Heath Hyatt, #54141 Paige L. Whidbee, # 55072
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com
JMcMillan@perkinscoie.com CarolynGilbert@perkinscoie.com NArora@perkinscoie.com HHyatt@perkinscoie.com PWhidbee@perkinscoie.com
By: s/ Molly Tack-Hooper By: s/ Nancy L. Talner By: s/ Lisa Nowlin By: s/ Breanne Schuster By: s/ John Midgley Molly Tack-Hooper, #56356 Nancy L. Talner #11196 Lisa Nowlin #51512 Breanne Schuster #49993 John Midgley, #6511
American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 Telephone: (206) 624-2184 Email: mtackhooper@aclu-wa.org
talner@aclu-wa.org lnowlin@aclu-wa.org bschuster@aclu-wa.org jmidgley@aclu-wa.org
Perkins Coie LLP
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Case 2:20-cv-00887-RAJ Document 51 Filed 07/27/20 Page 16 of 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
MOTION FOR CONTEMPT (No 2:20-cv887 RAJ) –14
148988058.4

By: s/ Robert S. Chang By: s/ Charlotte Garden By: s/ Melissa Lee By: s/ Jessica Levin Robert S. Chang, #44083 Melissa Lee #38808 Jessica Levin #40837 Fred T. Korematsu Center for Law and Equality Ronald A. Peterson Law Clinic Seattle University School of Law 1112 E. Columbia Street Seattle, WA 98122 Telephone: 206.398.4025 Fax: 206.398.4077 Email: changro@seattleu.edu Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen
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 Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 1 of 17

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 BLACK LIVES MATTER SEATTLE KING COUNTY, ABIE EKENEZAR,
10 SHARON SAKAMOTO, MURACO KYASHNA-TOCHA, ALEXANDER
11 WOLDEAB, NATHALIE GRAHAM, and ALEXANDRA CHEN,
12
Plaintiffs, 13
v. 14
CITY OF SEATTLE, 15
Defendant. 16

No. 2:20-CV-00887-RAJ
PLAINTIFFS’ RESPONSE TO DEFENDANT’S MOTION FOR RECONSIDERATION

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ)
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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 2 of 17 TABLE OF CONTENTS

1 I. 2 II.
III. 3 4 5 6 7 8 9 10
IV. 11

Page
INTRODUCTION ............................................................................................................. 1
BACKGROUND ............................................................................................................... 1
ARGUMENT ..................................................................................................................... 4
A. The City failed to meet and confer with Plaintiffs before filing its Motion for Reconsideration. ............................................................................................... 4
B. Reconsideration of the Court’s holding that the City violated the Court’s Orders is not warranted. ......................................................................................... 5
1. Reconsideration is disfavored. ................................................................... 5
2. The City has identified no new facts which could not have been brought to the Court’s attention previously. .............................................. 6
3. The Court did not err in rejecting the Monell standard.............................. 8
4. The Court did not hold the City to a “perfect” compliance standard and applied the correct contempt standard to find four deployments violated the Court’s Orders. ....................................................................... 9
CONCLUSION................................................................................................................ 12

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 3 of 17 TABLE OF AUTHORITIES

Page

1 CASES

2 Alexander v. Boeing Co.,

3

C13-1369 RAJ, 2014 WL 3900574 (W.D. Wash. Aug. 11, 2014) ............................................5

4 Dejeu v. Lewis Cty.,

C20-5176 BHS, 2020 WL 7397011 (W.D. Wash. Dec. 17, 2020)............................................6

5

Elec. Mirror, LLC v. Avalon Glass & Mirror Co.,

6

16-0665-RAJ, 2018 WL 3862250 (W.D. Wash. Aug. 14, 2018) ..........................................4, 5

7 F.T.C. v. Affordable Media,

8

179 F.3d 1228 (9th Cir. 1999) ...................................................................................................8

9 F.T.C. v. Kuykendall, 371 F.3d 745 (10th Cir. 2004) ...............................................................................................7, 8

10 J & J Sports Prods., Inc. v. Jernegan,

11

No. C 11-02095, 2013 WL 450382 (N.D. Cal. Feb. 5, 2013) ...................................................4

12 Jackson v. Aliera Companies, Inc.,

13

19-CV-01281-BJR, 2020 WL 5984075 (W.D. Wash. Oct. 8, 2020).........................................5

14 Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877 (9th Cir. 2000) .....................................................................................................5

15 Ledcor Indus. (USA) Inc. v. Va. Sur. Co., Inc.,

16

No. 09-CV-01807 RSM, 2012 WL 223904 (W.D. Wash. Jan. 25, 2012) .................................6

17 Massachusetts v. E*Trade Access, Inc., 834 F. Supp. 2d 43 (D. Mass. 2011) ........................................................................................11
18

19

Ozone Int’l, LLC v. Wheatsheaf Grp. Ltd., 2:19-CV-01108-RAJ, 2020 WL 2199505 (W.D. Wash. May 6, 2020).....................................4

20 Puget Soundkeeper All. v. Rainier Petroleum Corp.,

21

C14-0829JLR, 2017 WL 6515970 (W.D. Wash. Dec. 19, 2017)................................10, 11, 12

22 United States v. State of Tenn., 925 F. Supp. 1292 (W.D. Tenn. 1995).....................................................................................10
23

24

Whitford v. Mt. Baker Ski Area, Inc., C11-00112RSM, 2012 WL 909938 (W.D. Wash. Mar. 15, 2012)............................................5

25 RULES

26 Local Rule 7(h) ................................................................................................................................5

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) – ii

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1

I. INTRODUCTION

2

The City’s motion for reconsideration should be denied outright. First, in seeking to

3 challenge the Court’s contempt order, the City violated yet another order—the Court’s Standing

4 Order—by failing to meet and confer with Plaintiffs about this motion before filing it. In fact,

5 the first time Plaintiffs found out about this motion was when counsel received notice via the

6 ECF system. That is reason enough to deny reconsideration. Second, on the merits, the City has

7 not and cannot meet the standard for reconsideration because it points to no new facts,

8 intervening case law, or manifest errors. Rather, the City simply disagrees with the Court’s

9 conclusions—which is not a proper basis for reconsideration—and attempts to relitigate the

10 Court’s findings. The City’s attempts to drum up a legal error amount to nothing more than a

11 series of strawman arguments. For instance, the Court didn’t hold the City to a “perfect

12 compliance” standard; in fact, the Court carefully considered the evidence the parties presented

13 (including the City’s handpicked videos) and applied the standard governing contempt. The

14 City’s clumsy attempts to caricature the Court’s own reasoning starkly illustrate the City’s

15 inability to meet the reconsideration standard. The motion should be denied.

16

II. BACKGROUND

17

On June 12, 2020, the Court issued a temporary restraining order (TRO) enjoining the

18 City from deploying “chemical irritants or projectiles of any kind against persons peacefully

19 engaging in protests or demonstrations.” ECF 34 at 11. The TRO provided for a limited

20 exception when such weapons were necessary, reasonable, proportional, and targeted to protect

21 against a specific and imminent threat to person or property. Id. On June 17, the Court entered a

22 stipulated preliminary injunction with nearly identical terms (Order). ECF 42.

23

Based on protest events on July 25, 2020, Plaintiffs filed their first contempt motion. The

24 City settled that motion by stipulating to an amended preliminary injunction on August 10

25 (Amended Order). ECF 110.

26

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1

Following the City’s responses to protests on August 26, September 7, September 22 and

2 September 23, Plaintiffs’ counsel sent letters after each incident notifying the City that Plaintiffs

3 believed the City had violated the Orders and requesting information. ECF 115 at Ex. A, C, E.

4 In response to each letter, the City insisted that “all uses of less lethal munitions . . . were entirely

5 consistent with the Court’s Order.” ECF 115 at Ex. D. Its conclusions were “based on [a]

6 review of preliminary information from reports, conversations with incident command, and

7 review of your videos.” ECF 115 at Ex. B. The City did not say it would investigate further or

8 claim that further investigation was necessary. See id. Plaintiffs filed a second contempt motion

9 based on these four events on September 30, 2020. ECF 114.

10

In response, the City claimed that protester accounts “lack context and a circumstantial

11 understanding.” ECF 135 at 2. Three days later, Plaintiffs e-mailed the City to confer on the

12 evidentiary hearing process, including the scope of evidence and the time required to compile the

13 evidence. ECF 173-1 at 6:13-24. The City did not respond. Id. at 6:13-14, 9:11-16. At a later

14 status hearing, the City then asked the Court to provide guidance on “how the court is going to

15 evaluate contempt in this circumstance,” asking if it needed to respond to each allegation of

16 force. Id at 10:8-19; 11:19-22; 13:10-14. The Court had “trouble understanding why the City

17 hasn’t accepted that” Plaintiffs’ contempt motion described “four specific incidents” and the

18 declarations “define[] the scope of the parameters of the contempt actions being brought by the

19 plaintiffs.” Id. at 12:2-11. The Court further admonished the City for “asking . . . the court to

20 engage in a discovery process for the City” and instructed the City that the issues should be

21 resolved by the parties in a meet and confer as Plaintiffs attempted. Id. at 13:17-14:5.

22

The parties then conferred regarding the proposed scope and schedule for the Court’s

23 consideration of Plaintiffs’ contempt motion and agreed to limit the proceedings to written

24 submissions. ECF 141 at 1-2. The City also agreed that it would file all supporting evidence by

25 November 2—two weeks from the date the parties filed the joint submission, 33 days after

26 Plaintiffs filed the contempt motion, and two months after the first two incidents. See id. at 3.

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1 Though Plaintiffs sought the full video files that the City determined were relevant (even if the

2 City did not intend to rely on the video in its submission to the Court), see id. at 3-4, the Court

3 granted the City’s request that it only provide extended clips of videos on which it relied in its

4 submission to the Court. See id.; ECF 143 at 2. In other words, the City argued for less evidence

5 (i.e., shorter and fewer videos), and the City’s argument prevailed.

6

At the contempt hearing, the City complained that the use of force reports it submitted

7 were in draft form, without the officers’ reviewing body-worn video in order to revise their

8 reports. See ECF 173-2 at 31:7-16; 80:13-19. However, it did not claim that use of force reports

9 or officer declarations were omitted for lack of time.

10

Though the City noted that there were “hundreds of hours of videotape on each of these

11 days,” ECF 173-2 at 31:17-22, it only provided a small universe of those videos to Plaintiffs and

12 the Court. For example, the City attested that there were 32 blast balls deployed on September

13 23 but provided body-worn video for only two of those deployments. See id. at 89:18-20. As a

14 result of this lack of evidence, the Court found many of Plaintiffs’ allegations to be inconclusive.

15 See, e.g., ECF 161 at 25 (“But the Court notes that the four clear violations here do not include

16 the unaccounted-for blast ball uses on September 23.”).

17

In total, the Court found that there were four clear violations, four instances of clear

18 compliance, and 114 deployments of less lethal weapons documented by the City’s use of force

19 reports for which the court could not reach a determination, either because videos were not

20 provided by the City, videos were inconclusive, or the facts were too close to call. ECF 161 at

21 24 (“the City has not provided body worn video footage for many of these deployments”). In

22 other words, the lack of evidence (driven by the City’s refusal to provide more evidence) cut

23 against Plaintiffs’ argument, and in favor of the City. But the Court did not hold that the 114

24 remaining deployments were almost compliant, but rather refused to speculate for the

25 unaccounted-for blast ball uses. Id. at 24-25 (“For most deployments, the Court lacks sufficient

26 basis to deem them either a compliant use or a violation.”).

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1

The Court held the City in contempt on December 7. ECF 161. Fourteen days later, the

2 City brought a Motion for Reconsideration. ECF 178. The City did not meet and confer with

3 Plaintiffs’ counsel regarding its Motion. See Declaration of David Perez (“Perez Decl.”) at ¶ 3.

4 In fact, the City did not even provide advance notice of the motion—the first time Plaintiffs

5 learned about the motion was when counsel received notices via the ECF system. Id.

6

III. ARGUMENT

7

A. The City failed to meet and confer with Plaintiffs before filing its Motion for

Reconsideration.

8 This Court’s Standing Order plainly requires that parties contemplating filing “any

9 motion shall first contact opposing counsel to discuss thoroughly, preferably in person, the

10 substance of the contemplated motion and any potential resolution” and that all filings include a

11 declaration by counsel describing the date and substance of the meet and confer. Standing Order

12 on General Motions Practice, Hon. Richard A. Jones Chambers Procedures (emphasis in

13 original); see also Ozone Int’l, LLC v. Wheatsheaf Grp. Ltd., 2:19-CV-01108-RAJ, 2020 WL

14 2199505, at *3 (W.D. Wash. May 6, 2020) (“[t]he meet and confer requirement is clearly

15 articulated in the Court's standing order” and “is a requirement, not a suggestion”). Indeed, this

16 aims to prevent the very waste of judicial and party resources and “litigation by surprise” tactics

17 the City employs here. See, e.g., Elec. Mirror, LLC v. Avalon Glass & Mirror Co., 16-0665-

18 RAJ, 2018 WL 3862250, at *1 (W.D. Wash. Aug. 14, 2018) (denying motion to compel for

19 failure to meet and confer in accordance with Standing Order).

20 At no point in the fourteen-day period following the Court’s December 7th Order on

21 Plaintiffs’ Contempt Motion did the City attempt to communicate with Plaintiffs’ counsel

22 regarding the instant Motion for Reconsideration. Perez Decl. at ¶ 3. The City’s failure to do so

23 is “unacceptable.” See Ozone Int’l, LLC, 2020 WL 2199505, at *3; see also J & J Sports Prods.,

24 Inc. v. Jernegan, No. C 11-02095, 2013 WL 450382, at *1 (N.D. Cal. Feb. 5, 2013) (denying

25 motion due to failure to meet and confer, stating “[i]t is incumbent upon litigants before this

26 Court to familiarize themselves not only with the Local Rules, but also with this Court’s

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1 Standing Orders” and that “[t]here is simply no excuse for [a party’s] failure to comply with the

2 meet and confer requirement set forth in this Court’s Standing Orders”).1

3

The City’s Motion for Reconsideration should be stricken on this basis alone. Elec.

4 Mirror, LLC, 2018 WL 3862250 at *1; Alexander v. Boeing Co., C13-1369 RAJ, 2014 WL

5 3900574, at *1 (W.D. Wash. Aug. 11, 2014) (ordering Plaintiff to address whether the court

6 should strike her motions, or otherwise sanction her and/or counsel for failing to meet and confer

7 before filing motions, and ordering Defendant to provide documentation of attorneys’ fees

8 incurred as a result); Whitford v. Mt. Baker Ski Area, Inc., C11-00112RSM, 2012 WL 909938, at

9 *1 (W.D. Wash. Mar. 15, 2012) (striking motions for failure to comply with local rules requiring

10 meet and confer).

11

B. Reconsideration of the Court’s holding that the City violated the Court’s

12

Orders is not warranted.

13

1. Reconsideration is disfavored.

Local Rule 7(h) emphasizes that “[m]otions for reconsideration are disfavored.” The 14

Court “will ordinarily deny such motions” unless the moving party demonstrates “manifest 15

error” in the Court’s prior ruling or “new facts or legal authority which could not have been 16

brought to its attention earlier with reasonable diligence.” LCR 7(h). Indeed, reconsideration is 17

an “extraordinary remedy” that “should not be granted . . . unless the district court is presented 18

with newly discovered evidence, committed clear error, or if there is an intervening change in the 19

controlling law.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); 20

Jackson v. Aliera Companies, Inc., 19-CV-01281-BJR, 2020 WL 5984075, at *1 (W.D. Wash. 21

Oct. 8, 2020) (denying motion for reconsideration, finding movant did not meet “their heavy 22

burden”). When a motion for reconsideration “merely rehashes the same arguments made and 23

24

1 This isn’t the first time the City has failed to meet and confer, leading to a waste of judicial and party resources.
25 The Court will recall the City’s earlier failure to meet and confer regarding the scope of the contempt proceedings

prior to the status conference on the same required additional resources of the parties and the Court. See ECF 173-1
26 at 14: 23-25 (“These are the type of things, counsel, . . . that should have been addressed by the parties having the

opportunity to meet and confer.”).

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1 rejected by the Court,” it “may be denied for this reason alone.” Ledcor Indus. (USA) Inc. v. Va.

2 Sur. Co., Inc., No. 09-CV-01807 RSM, 2012 WL 223904, at *1 (W.D. Wash. Jan. 25, 2012); see

3 also Dejeu v. Lewis Cty., C20-5176 BHS, 2020 WL 7397011, at *1 (W.D. Wash. Dec. 17, 2020)

4 (“Mere disagreement with a previous order is an insufficient basis for reconsideration, and

5 reconsideration may not be based on evidence and legal arguments that could have been

6 presented at the time of the challenged decision.”).

7

The City’s motion does not come close to meeting this standard.

8

2. The City has identified no new facts which could not have been

9

brought to the Court’s attention previously.

The City has failed to identify any new, previously unavailable facts. To the contrary, the 10

City repeatedly cites the same evidence it already submitted to the Court. That the City merely 11

desired additional time to review the evidence related to Plaintiffs’ “specific and succinct” 12

allegations is not a proper basis for reconsideration. ECF 173-1 at 19:5, 20:18-24 (permitting the 13

City additional time to prepare its materials). The City advocated for a process of limited video 14

evidence disclosure, contrary to that which Plaintiffs’ requested. 15

The City requests leave to supplement the record with only the facts favorable to the City 16

and rehash only the deployments found to be in violation of the Order, after being provided the 17

benefit of the Court’s analysis.2 None of this evidence is newly discovered; the declarations all 18

explicitly repeat or reattach evidence previously submitted to the Court. See Declaration of 19

Robert L. Christie (“Christie Decl.”) at ¶ 3 (Exhibit A was “previously filed with the Declaration 20

of Assistant Chief Lesley Cordner”); Supplemental Declaration of John Brooks (“Supplemental 21

Brooks Decl.”) (“This declaration augments my November 2, 2020 declaration [...]”); 22

Declaration of Erik Eastgard (“Eastgard Decl.”) at ¶ 5 (explaining that Exhibit A was 23

24

2 Notably, the City’s alleged additional evidence still fails to include the missing body worn video evidence of at
25 least 22 blast ball deployments on September 23rd, which the City agreed to produce, and which were key to the

Court’s finding that “[a]lthough these remaining blast ball uses are not clear violations, they are also not clearly
26 compliant with the Orders.” ECF 161 at 24, 28; see also ECF 141. The City’s effort to cherry-pick supplemental

evidence that support its own narrative while continuing to withhold those other videos is troubling.

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –6

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 10 of 17

1 “previously filed” as a praecipe to the City’s Opposition to Plaintiff’s Contempt Motion);

2 Declaration of Matthew Didier (“Didier Decl.”) at ¶ 6 (explaining that Exhibit A was “previously

3 filed”); and compare Declaration of Riley Caulfield (“Caulfield Decl.”) at ¶ 5-10 with ECF 146-

4 03 (Exhibit C(1) to Declaration of Leslie Cordner) (both describing the September 22nd blast

5 ball deployment found to be in violation of Court’s Orders). None of the declarants explain that

6 any of the supplemental facts were not previously available. Indeed, any such statement would

7 not be credible as the justification for each less lethal weapon deployment was available to, and

8 only available to, the declarant officer all along.

9

The City’s purported need for more time is not a basis for reconsideration. The City

10 recognizes, as it must, that “courts in civil contempt proceedings may proceed in a ‘more

11 summary fashion’ than in an ‘independent civil action.’” F.T.C. v. Kuykendall, 371 F.3d 745,

12 756 (10th Cir. 2004) (quoting D. Patrick, Inc. v. Ford Motor Co., 8 F.3d 455, 459 (7th Cir.

13 1993)). Where, as here, a defendant agrees to that procedural structure, is on notice that it

14 should investigate well before a contempt motion is filed, and most of the evidence involves the

15 defendants’ own records, arguments that more time would have resulted in identifying

16 “significant evidence” are not credible. See Kuykendall, 371 F.3d at 756.

17

The error of the City’s position is plain in its failure to support its position with authority.

18 For starters, the City’s reliance on Ahearn is misleading. See Motion at 2. In Ahearn, as here,

19 the Court found that the movant did not provide the Court any reason to believe more time would

20 have resulted in the discovery of significant evidence warranting reconsideration. Further, the

21 City failed to indicate that the direct quote they attribute to Ahearn is actually drawn from FTC v.

22 Kuykendall, a case rejecting a nearly identical position to that which the City takes here. This

23 omission is telling. In Kuykendall, the Tenth Circuit expressly rejected the Defendants’

24 argument that significant evidence would be found had they been given more time. 371 F.3d at

25 756. There, as here, Defendants “agreed to the procedural structure [of contempt] by agreeing to

26 the Preliminary Injunction.” Id. at 756. There, as here, Defendants received notice by letter

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –7
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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 11 of 17

1 from Plaintiffs regarding potential violations of the Court’s Orders and were on notice that they

2 should investigate their practices. Id. at 755, 56. There, as here, Defendants had approximately

3 a month to respond to the specific allegations in the show cause motion and prepare for the

4 hearing. Id. at 755. And there, as here, most of the critical evidence consisted of the

5 Defendant’s own records, as well as the testimony of the Defendant’s employees, “to which

6 [D]efendants obviously had equal access.” Id. Most importantly, the court in Kuykendall

7 rejected Defendant’s argument that the contempt proceeding below was constitutionally

8 deficient, finding that the court “gave the defendants adequate notice and opportunity to be heard

9 to satisfy the Due Process Clause.” Id at 756. The same conclusion should be drawn here.

10

Briefing schedules aside, the City had way more time than it lets on: the City apparently

11 failed to diligently investigate the conduct of its own officers between August 28th (when

12 Plaintiffs sent their first letter) and November 2 (when the City filed its contempt brief). See

13 ECF 115 (Ex. A to Declaration of David A. Perez). The City’s failure to prepare its case within

14 the extended time frame allotted by the Court does not warrant reconsideration. And the City’s

15 failure to explain the purported lawful basis for the four deployments found to be in violation of

16 the Order until after this Court held it in contempt does not warrant reconsideration. The City

17 has neither provided any justification for its inability to timely provide this evidence, nor has it

18 identified any new evidence warranting reconsideration.

19

3. The Court did not err in rejecting the Monell standard.

20

The Court correctly applied the “well-settled” standard for civil contempt and held that

21 Monell is irrelevant here, particularly given that the City already expressly stipulated to Orders

22 enjoining the conduct of both the SPD and individual police officers. F.T.C. v. Affordable

23 Media, 179 F.3d 1228, 1239 (9th Cir. 1999). ECF 161 at 9; see also ECF 42 at 2; ECF 110 at 3.

24 The plain language of these Orders—which the City co-authored and to which the City

25 stipulated—makes it abundantly clear that the City is responsible for compliance, and that such

26 responsibility extends to the actions of individual officers. Indeed, the Orders explicitly define

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –8
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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 12 of 17

1 the City as a “collective[]” body, “including” any officers under SPD’s control. ECF 42 at 2.

2 The question of vicarious municipal liability under Monell is thus mooted by the fact that, under

3 the Orders, the municipality, its police department, and its police officers are by definition a

4 single entity. See id. In other words, the City co-authored and stipulated to Orders that vitiate

5 any barrier that might otherwise exist between municipality and agent under a Monell analysis.

6 The City cannot now evade responsibility that it voluntarily assumed because it has been newly

7 confronted with the consequences of its failure to abide by the very orders to which it stipulated.

8

Further, the City fails to identify even a single case to support its strange argument that

9 Monell necessarily defines the threshold for civil contempt rather than the longstanding and well-

10 settled body of precedent that informed the Court’s analysis. ECF 178 at 3; see also ECF 173-2

11 at 39:10-21 (when asked if it was aware of any authority, the City responded, “believe me, we

12 looked”). This is telling. The City has had ample opportunity to present authority substantiating

13 its argument, but continuously proves incapable of doing so, even on request for reconsideration.

14 This is because there is no case law to suggest that Monell can be weaponized to alter the civil

15 contempt standard where a municipality has already been enjoined. The City’s position, which

16 the Court tactfully recognized as “novel,” ignores both the procedural realities of the case and the

17 overwhelming weight of past decisions. ECF 161 at 9.

18

4. The Court did not hold the City to a “perfect” compliance standard

19

and applied the correct contempt standard to find four deployments violated the Court’s Orders.

20

Finally, the City tries its luck with a strawman argument, falsely asserting that the Court

21 held it to a “perfect compliance” standard. Suffice to say that caricaturing the Court’s own

22 reasoning back to the Court is hardly the most intuitive basis for reconsideration.

23

The Court properly applied the “substantial compliance” standard to the City’s conduct.

24 ECF 161 at 24-25. The City does not point to any previously unavailable evidence that renders

25 the officers’ conduct more reasonable, nor to any manifest error in the standard applied; it is

26 simply unhappy with the Court’s conclusion in applying that standard—that the City’s violations

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –9
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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 13 of 17

1 were neither “few” nor “technical” and that the City did not take “every reasonable effort” to

2 comply with the Court’s Orders. See id. at 24-25. The City disagrees with the Court. But if that

3 were enough to seek reconsideration, then the docket would be flooded with such motions.3

4

The City’s assertion that the Court applied the wrong standard also relies on several false

5 assumptions. First, the City asks the Court to compare the four clear violations with every other

6 deployment, rather than the four instances of the City’s compliance with the Orders. The Court

7 correctly held that “the appropriate comparison must be between the times the City was

8 compliant and the times it was not compliant.” ECF 161 at 26; see Puget Soundkeeper All. v.

9 Rainier Petroleum Corp., C14-0829JLR, 2017 WL 6515970, at *8 (W.D. Wash. Dec. 19, 2017)

10 (in determining substantial compliance, a court determines whether the “level of compliance

11 ‘overall was substantial, notwithstanding some minimal level of noncompliance’”) (quoting

12 Labor/Cmty. Strategy Ctr. v. L.A. Cty. Metro. Transp. Auth., 564 F.3d 1115, 1122 (9th Cir.

13 2009)). Where, as here, the instances of compliance equal the instances of noncompliance,

14 substantial compliance is plainly not met.

15

Second, the City mischaracterizes the 114 “inconclusive” deployments of less lethal

16 weapons over the four protest days for which the Court could not reach a determination as “close

17 calls.” ECF 178 at 6. To the contrary, the Court found that many of these deployments were

18 “shrouded by chaos” and “poorly documented” such that “even the best available evidence . . . is

19 unhelpful and inconclusive.” ECF 161 at 15-16. Many more were not documented by the City

20 at all: “many blast balls were used at the September 23 protest . . . yet the City has not provided

21 body worn video footage for many of these deployments.” Id.4 The Court cautioned against

22

23 3 The City’s failure to substantially comply with the Orders does not warrant reconsideration particularly because

24

the City agreed to the terms and participated in drafting the Orders. See, e.g., United States v. State of Tenn., 925 F. Supp. 1292, 1302 (W.D. Tenn. 1995) (“Courts have been particularly unsympathetic to purported excuses for less-

than-substantial compliance where the contemnor has participated in drafting the order against which compliance is
25 measured.”) (citing Spallone v. United States, 493 U.S. 265, 276 (1990) (upholding finding of contempt against city

that failed to take action required by consent decree)).
26 4 As counsel for Plaintiffs noted at oral argument: “[the City] said that there were 32 blast balls deployed on

[September 23]. We’ve only been provided body-worn video for two of those.” ECF 173-2 at 89:18-20.

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –10

Perkins Coie LLP
1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099

150591546.4

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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 14 of 17

1 precisely what the City attempts to do here: “The Court’s previous admonition on OC spray

2 applies equally to blast balls: Although these remaining blast ball uses are not clear violations,

3 they are also not clearly compliant with the Orders.” Id. at 24 (emphasis in original).

4

The City shrugs off the Court’s order as finding only “isolated violations of a protester’s

5 rights” that should not form the basis for contempt, and then doubles down on its initial position

6 that “there were no violations of the Order” at all. ECF 178 at 6 (emphasis added); see Puget

7 Soundkeeper Alliance, 2017 WL 6515970, at *8 (finding contempt where, as here, defendants

8 failed the core requirement of the court’s order, i.e. preventing the wrongful conduct that formed

9 the basis of the order from occurring); see also Massachusetts v. E*Trade Access, Inc., 834 F.

10 Supp. 2d 43, 45 (D. Mass. 2011) (finding defendants failed to substantially comply with “clear

11 instructions” of the agreed order where, as here, “[i]nstead of admitting their non-compliance

12 and promising better effort, defendants disingenuously claim[ed] they have complied in spite of a

13 plethora of evidence to the contrary”).

14

Again, the City does not challenge the standard applied nor provide previously

15 unavailable evidence; rather, it disagrees that weapons deployed “by back row officers” or by

16 officers who did not care to look as they deployed less lethal weapons even fall within the

17 Court’s Orders in the first instance. Id. at 7. The Court’s reasoning was sound and is worth

18 quoting here: the violations “are clear, in part, because they fundamentally defy the Court’s

19 Orders and the purpose behind them. They are not at the boundary . . . [t]hey violate the

20 substantive terms of the Orders by clear and convincing margin.” ECF 161 at 25 (emphasis

21 added).

22

The Court correctly found that no good faith or reasonable interpretation could bring the

23 four clear violations within the scope of the Orders. Id. at 26. The City finds no manifest error

24 with the Court’s ruling that “a party should not be held in contempt if its actions appear to be

25 ‘based in good faith and reasonable interpretation’ of a court’s order.” Id. Indeed, the City

26 repeats this standard in its current motion. ECF 178 at 6. Again, the City disputes the finding

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –11
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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 15 of 17

1 that SPD officers did not reasonably interpret the Orders. Id. Yet as the Court held, it is

2 unreasonable to interpret these Orders to ever permit indiscriminately throwing blast balls into a

3 crowd. ECF 161 at 20-21 (“[O]fficers may use less lethal weapons in certain circumstances. But

4 even when those circumstances are met, SPD must not deploy the weapons ‘indiscriminately into

5 a crowd.’”) (internal citations omitted).

6

The City does not dispute that the Court applied the correct standard in assessing whether

7 the City was in “substantial compliance” with the Court’s orders. The City merely wants another

8 chance to litigate the same questions of reasonableness and triviality versus substantial violations

9 under the same facts. It has failed to meet its high burden in bringing the instant Motion for

10 Reconsideration.

11

IV. CONCLUSION

12

The Court should deny the City’s motion outright. In seeking to challenge the Court’s

13 order finding the City in contempt, the City blatantly violated the first rule of the Court’s

14 Standing Order to meet and confer. That is reason enough to deny the motion. And on the

15 merits, the City does not come close to meeting the standard. The motion simply rehashes the

16 same arguments considered during the contempt proceedings and reintroduces the same evidence

17 all over again. That the City has to resort to caricaturing the Court’s reasoning demonstrates

18 why the City cannot meet its heavy burden on reconsideration.5

19

20

21

22

23

24

25

26 5 Should the Court deny this motion for reconsideration, Plaintiffs should be given leave to amend the fee petition

they served with their sanctions brief to account for the legal costs associated with opposing this motion.

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –12

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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 16 of 17

1 DATED: December 29, 2020
2 3 4 5 6 7 8 9 10

By: s/ David A. Perez
By: s/ Carolyn S. Gilbert
By: s/ Rachel A.S. Haney
David A. Perez #43959
Carolyn S. Gilbert #51285
Rachel A.S. Haney #52637 Attorneys for Plaintiffs Black Lives Matter Seattle King County Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com
CarolynGilbert@perkinscoie.com RHaney@perkinscoie.com

11

By: s/ Nancy L. Talner

By: s/ Lisa Nowlin

12

By: s/ Breanne Schuster

By: s/ John Midgley

13

Nancy L. Talner #11196

Lisa Nowlin #51512

14

Breanne Schuster #49993

John Midgley #6511

15

American Civil Liberties Union of

16

Washington Foundation

P.O. Box 2728

17

Seattle, WA 98111

Telephone: (206) 624-2184

18

Email: talner@aclu-wa.org

lnowlin@aclu-wa.org

19

bschuster@aclu-wa.org

jmidgley@aclu-wa.org

20

21

By: s/ Robert S. Chang

By: s/ Melissa Lee

22

By: s/ Jessica Levin

Robert S. Chang, #44083

23

Melissa Lee #38808

Jessica Levin #40837 24

Fred T. Korematsu Center for Law and

25

Equality

Ronald A. Peterson Law Clinic

26

Seattle University School of Law

1112 E. Columbia Street

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –13

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Case 2:20-cv-00887-RAJ Document 186 Filed 12/29/20 Page 17 of 17

1

Seattle, WA 98122

Telephone: 206.398.4025

2

Fax: 206.398.4077

Email: changro@seattleu.edu 3

Attorneys for Plaintiffs Black Lives Matter

4

Seattle-King County, Abie Ekenezar, Sharon

Sakamoto, Muraco Kyashna-tochá, Alexander

5

Woldeab, Nathalie Graham, and Alexandra

Chen 6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS’ RESPONSE TO MOTION FOR RECONSIDERATION (No. 2:20-CV00887-RAJ) –14
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 Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 1 of 8

1

THE HONORABLE RICHARD A. JONES

2

3

4 UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 BLACK LIVES MATTER SEATTLE-KING COUNTY, ABIE EKENEZAR, SHARON
8 SAKAMOTO, MURACO KYASHNATOCHA, ALEXANDER WOLDEAB,
9 NATHALIE GRAHAM, and ALEXANDRA CHEN,
10 Plaintiffs,
11 v.
12 CITY OF SEATTLE,
13 Defendant.
14

NO. 2:20-cv-00887
THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT
NOTE ON MOTION CALENDAR:
December 21, 2020

15

16

17 /

18 /

19 /

20 /

21 /

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 1

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 2 of 8

1

I. STATEMENT OF FACTS

2

Plaintiffs’ Complaint and TRO motion sought relief under Monell alleging that relief was

3 necessary because of the City’s “policies and practices.” (Dkt 1, ¶¶ 1, 12, 140-47; Dkt. 6). The

4 Court temporarily enjoined deployments of crowd control weapons (“CCW”) absent certain

5 conditions, and included “officers” among the enjoined, the same language later absorbed into a

6 stipulated preliminary injunction. (Dkts. 41 & 42; 109-10; Dkt. 34).

7

Plaintiffs’ September 30 motion for contempt encompassed many CCW deployments from

8 four events, supported by videos and 19 declarations. (Dkts. 114-34.) The City consistently raised

9 concerns about compressed timeframes for responding. In its supplemental response, the City

10 provided as much evidence related to CCW use at the four demonstrations as reasonably possible,

11 including draft reports not yet reviewed for completeness, which detailed 122 deployments. (Dkt.

12 144.) Of those deployments, the Court based its contempt finding on four, about which the City

13 sets forth additional, clarifying evidence in the declarations of Matthew Didier, Riley Caulfield,

14 Bob Christie, Erik Eastgard and (Supplemental) John Brooks, filed herewith.

15

II. AUTHORITIES AND ARGUMENTS

16

This Court has authority to reconsider its December 7, 2020 Order and deny Plaintiffs’

17 motion to hold the City in contempt. LCR 7(h)(1) sets the standard for reconsideration motions,

18 which are disfavored. While contempt proceedings often occur in a “more summary fashion,”

19 additional information and consideration is appropriate if a party has given the court “any reason

20 to believe they would have found [more] significant evidence had they been given more time.”

21 Ahearn ex rel. N.L.R.B. v. Int'l Longshore & Warehouse Union, Locals 21 & 4, 721 F.3d 1122,

1130 (9th Cir. 2013). Here, the City diligently prepared a response to the Motion for Contempt

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 2

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 3 of 8

1 and consistently raised concerns about its ability to fully respond in the short timeframe. (Dkts.

2 135 and 144). Reconsideration of the Court’s contempt finding is appropriate because it did not

3 apply the Monell standard; erroneously held the City to a perfect, rather than substantial,

4 compliance standard; and incorrectly concluded 4 of 122 deployments violated the injunction.

5

A. Monell Standard Must Apply to Hold a Municipality in Civil Contempt.

6

The Court determined Monell did not control here. Further, it found the City’s stipulation

7 to a preliminary injunction waived its objections to vicarious liability. Both assertions are

8 incorrect. That individual agents of the City (officers) would be the ones to use the CCWs governed

9 by the injunction is simply a practical reality and legally consistent with Rule 65(d)(2) binding

10 parties’ agents to injunctions. The legal question of which entities and individuals are bound by

11 the injunction is distinct from the legal question of what constitutes a violation by the City as a

12 whole. The threshold for finding a violation by the City does not change with the mere mention of

13 officers in the injunction; any such change in legal standards would need to be expressly stated.

14 Melendres v. Arpaio, 784 F.3d 1254, 1265 (9th Cir. 2015) (“An injunction against state actors . . .

15 must not ‘require more of state officials than is necessary to assure their compliance with the

16 constitution.’”).

17

Monell’s prohibition on vicarious liability absent the City’s actions being the moving force

18 behind an unconstitutional policy or practice applies with equal force to the injunction. Yet the

19 contempt finding was not based on City policy or practices, but four individual, isolated, officer

20 actions. Relief in the Contempt proceedings therefore impermissibly went beyond what could be

21 enjoined, given its basis in a Monell action. “Nothing in the text of § 1983 suggests that the

causation requirement contained in the statute should change with the form of relief sought.” Los

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 3

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 4 of 8

1 Angeles Cty., Cal. v. Humphries, 562 U.S. 29, 36-37, 131 S. Ct. 447, 452, 178 L. Ed. 2d 460

2 (2010). Other courts have rejected similar attempts to widen the reach of an injunction to exceed

3 the relief available for the claims in the Complaint:

4

An overly broad decree whose terms are divorced from the relief sought may be as

ambiguous as a vague decree. McComb v. Jacksonville Paper Co., 336 U.S. 187,

5

197, (1949) (Frankfurter dissent). Accordingly, at times we have found it necessary

to construe the language of an injunction consistently with plaintiff's complaint and

6

the relief to which he was entitled under the appropriate legislation.

7 New York Tel. Co. v. Commc'ns Workers of Am., AFL-CIO, 445 F.2d 39, 48 (2d Cir. 1971) (some

8 internal citations omitted). Plaintiffs’ Complaint sought relief from the alleged unconstitutional

9 City policy or customs during demonstration management, but absent that, not from individual

10 officer actions. The injunctive language should be similarly construed. If the injunction is

11 construed to allow a contempt finding against the City because of isolated officer actions, it is the

12 embodiment of overly broad, ambiguous injunctions about which Justice Frankfurter

13 warned. “[C]ourts are to construe ambiguities and omissions in consent decrees as redounding to

14 the benefit of the person charged with contempt.” Gilday v. Dubois, 124 F.3d 277, 282 (1st

15 Cir.1997) (internal citations and punctuation omitted), See also United States v. Holtzman, 762

16 F.2d 720, 720 (9th Cir. 1985).

17

The Monell standards properly applied do not support a contempt finding on this record.

18 Even if 4 of 122 deployments violated the Order, this Court already recognized that the City went

19 beyond the requirements of the Orders on pushing compliance (Dkt. 161, p. 25:11-17) and no clear

20 and convincing evidence establishes a practice to the contrary.1 Moreover, the 122 deployments

21

1 To the extent that individual officers are being accused of violating the Order, due process guarantees each accused

Officer the right to a complete record. See Dkt. 78, pp. 4-5.

THE CITY OF SEATTLE’S MOTION FOR

RECONSIDERATION AND REQUEST FOR LEAVE

Peter S. Holmes

TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 4

Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 5 of 8

1 are not the appropriate universe for evaluating the conduct. When evaluating if the City has

2 practices of “sufficient duration, frequency and consistency” such that unnecessary CCW

3 deployments are the City’s “traditional method” of demonstration management, one cannot ignore

4 (as Plaintiffs’ ask the Court to do) all the other daily protests between August 26 and September

5 22 about which Plaintiffs presented no evidence, in part because CCWs were often not deployed.

6 See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Even if the four event dates are considered

7 in isolation, there is still no pattern or practice established here.

8 B. The City Took All Reasonable Steps to Comply with the Injunction.

9

If a violating party has taken ‘all reasonable steps’ to comply with the court order, technical

10 or inadvertent violations of the order will not support a finding of civil contempt. General Signal

11 Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir.1986). The U.S. Supreme Court has held

12 similarly, especially where there is a “fair ground of doubt as to the wrongfulness of the conduct.”

13 Taggart v. Lorenzen, 139 S. Ct. 1795, 1801–02 (2019). Here, even when seeking coercive relief,

14 Plaintiffs fail to identify a single step the City should have, but did not, take to achieve compliance;

15 the inability to do so speaks volumes. The record shows the City took steps to promote compliance

16 and that was recognized by this Court. 2 (See Dkt. 161, p. 25).

17 C. Plaintiffs Did Not Provide Clear and Convincing Evidence for Contempt.

18

A contempt finding requires clear and convincing evidence to establish that the enjoined

19 party (a) violated the court order, (b) did not substantially comply, and (c) did not apply a good

20

21 2 Those steps included disseminating the Order department-wide and during protest management roll calls. The Blue
Teams template reinforces for officers there are limited permissible CCW deployments. See Christie Decl., Ex. B.

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 5

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 6 of 8

1 faith and reasonable interpretation of the order. Labor/Cmty. Strategy Ctr. v. Los Angeles County.

2 Metro. Transp. Authr., 564 F.3d 1115, 1123 (9th Cir. 2009). Discussed in reverse order here,

3 Plaintiffs cannot establish any of these elements. First, officers made reasonable interpretations of

4 the order. This injunction is unusual, with no concrete mandate (produce documents) or restriction

5 (stop using a company name). Compliance is predicated instead on a perception-based safety

6 analysis, allowing targeted use of CCWs when necessary for safety under the totality of the 7 circumstances. 3 The record establishes why each officer viewed deploymentS as reasonable and

8 necessary. For the contempt standard to be met, the officer’s field threat assessment must have 9 been not just wrong, but unreasonable4 as a matter of law. “The "reasonableness" of a particular

10 use of force must be judged from the perspective of a reasonable officer on the scene, rather than 11 with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386, 490 (1989).5 The Court

12 viewed most of these deployments as a “close call” and the officer’s perception matters. Second, 13 the City should not be enjoined for isolated violations of a protester’s rights;6 and such violations

14 should not equal contempt. Substantial compliance depends on the circumstances, and an enjoined

15 party need not “achieve ’letter perfect compliance’ with the order at issue.” AccuSoft Corp. v. Palo,

16 237 F.3d 31, 47 (1st Cir. 2001) (internal citations omitted); See also S. Ry. Co. v. Bhd. of

17

18 3 Acknowledgment of attendee violence at demonstrations is not evidence of the City’s resistance to limitations on
CCW deployment. While protest movements of the past embraced non-violence as a central, core component of their

message, currently, some attendees – repeatedly - come prepared to attack property and police. Even if most protesters
19 do not support the violence, targeted use of CCWs may be reasonable and necessary under such circumstances.

4 A deployment during a peaceful demonstration may have been unreasonable under the law. However, here, the Court

20 already recognized that none of the events at issue were completely peaceful.
5 For example, if a lieutenant determines a strobe light flashing in the eyes of an officer driving a car surrounded by

21

an angry crowd requires intervention, the Court must not just disagree, but find it unreasonable as a matter of law. 6 “Sporadic or isolated violations of individual protester’s rights are insufficient to support broad injunctive relief

against an entire agency.” Lewis v. Casey, 518 U.S. 343, 360 (1996).

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 6

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 7 of 8

1 Locomotive Firemen & Enginemen, 337 F.2d 127, 135 (D.C. Cir. 1964) (substantial compliance

2 with 47 violations in 42,000 instances); Cobell v. Babbitt, 37 F. Supp. 2d 6, 19 (D.D.C. 1999)

3 (substantial compliance based on percentage of existing documents produced).

4

Here, Plaintiffs’ contempt motion alleged, but did not prove, widespread, totally

5 indiscriminate CCW use. Then, the Court’s assessment of substantial compliance compared only

6 four confirmed compliant deployments to four non-compliant ones. It held that there was no clear

7 and convincing evidence that the “other use” deployments (the remaining 114) were inconsistent

8 with the Orders. (Dkt. 161, p. 24). Excluding the “other uses” in the Court’s calculation improperly

9 ignores the Plaintiffs’ burden and the Court’s own findings. “Close calls” establish reasonable, if

10 not letter perfect, deployments and cannot simply be removed from the substantial compliance

11 analysis. For the Plaintiffs’ motion for contempt to be viable, clear, and convincing evidence of

12 more than four isolated perceived violations are required.

13

Finally, there were no violations of the Order. Consideration of actions not specifically

14 enjoined, like CCW use by back row officers, or not watching where blast balls land, is improper.

15 Omissions or lack of clarity in draft Blue Team reports are not evidence of failure to comply.

16 Additional declarations of the four events further detail the basis for each deployment.7

17

III. CONCLUSION

18

The City requests that the Court reconsider its prior ruling and vacate its contempt Order.

19

20 7 FN 5 of the City’s response stated in part: “If the Court disagrees that Plaintiffs are required to prove Monell liability
in order to establish contempt […] the City requests that this Court identify those individual deployments and allow
21 the City additional time to fully identify all of the information relevant to each one so that the Court can examine the
totality of evidence available for each deployment. Dkt. 144, p. 8.

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 7

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

Case 2:20-cv-00887-RAJ Document 178 Filed 12/21/20 Page 8 of 8

1

Respectfully submitted this 21st day of December, 2020.

2

PETER S. HOLMES

Seattle City Attorney

3

4

By /s/ Carolyn U. Boies

GHAZAL SHARIFI, WSBA# 47750

5

CAROLYN U. BOIES, WSBA #40395

Attorneys for Defendant City of Seattle

6

Assistant City Attorneys

Seattle City Attorney’s Office

7

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

8

Phone: 206-684-8200

E-mail: Ghazal.Sharifi@seattle.gov

9

Carolyn.Boies@seattle.gov

10

CHRISTIE LAW GROUP, PLLC

11

By /s/ Robert L. Christie

ROBERT L. CHRISTIE, WSBA #10895

12

THOMAS P. MILLER, WSBA #34473

ANN E. TRIVETT, WSBA #39228

13

MEGAN M. COLUCCIO, WSBA #44178

Attorneys for Defendant City of Seattle

14

2100 Westlake Avenue N., Suite 206

Seattle, WA 98109

15

Phone: 206-957-9669

Email: bob@christielawgroup.com

16

tom@christielawgroup.com

ann@christielawgroup.com

17

megan@christielawgroup.com

18

19

20

21

THE CITY OF SEATTLE’S MOTION FOR RECONSIDERATION AND REQUEST FOR LEAVE TO SUPPLEMENT THE RECORD RE PLAINTIFFS’ MOTION TO HOLD THE CITY IN CONTEMPT (2:20-CV-00887) - 8

Peter S. Holmes
Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095
(206) 684-8200

 
 Case 2:20-cv-00887-RAJ Document 164 Filed 12/11/20 Page 1 of 10

1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

SEATTLE 8

BLACK LIVES MATTER SEATTLE

No. 2:20-CV-00887-RAJ

9

KING COUNTY, ABIE EKENEZAR,

SHARON SAKAMOTO, MURACO

PLAINTIFFS’ MOTION FOR

10

KYASHNA-TOCHA, ALEXANDER

CONTEMPT SANCTIONS

WOLDEAB, NATHALIE GRAHAM,

11

AND ALEXANDRA CHEN,

NOTE ON MOTION CALENDAR:

December 25, 2020

12

Plaintiffs,

13

v.

14

CITY OF SEATTLE,

15

Defendant.

16

17

18

19

20

21

22

23
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1

TABLE OF CONTENTS

2

Page

3 I. RELIEF REQUESTED...................................................................................................... 1

4 II. BACKGROUND ............................................................................................................... 1

5 III. AUTHORITY AND ARGUMENT................................................................................... 1

6

A. Nonmonetary Coercive Sanctions Are Appropriate .............................................. 2

7

B. The Court Should Award Plaintiffs Attorneys’ Fees and Costs ............................ 5

8 IV. CONCLUSION.................................................................................................................. 6 9

10

11

12

13

14

15

16

17

18

19

20

21

22

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1

I. RELIEF REQUESTED

2

Plaintiffs seek an order granting civil contempt sanctions to ensure future compliance

3 with the Court’s orders to prevent Defendant City of Seattle from further uses of less lethal

4 weapons against peaceful protestors in a manner that is indiscriminate, disproportionate, and

5 unnecessary to prevent specific injury or illegal activity. Plaintiffs additionally seek attorneys’

6 fees and costs.

7

II. BACKGROUND

8

The Court entered a Temporary Restraining Order (“the TRO”) limiting the City’s use of

9 less-lethal weapons on June 12, 2020. ECF 34. The parties stipulated to a preliminary

10 injunction with terms identical to the TRO extending the injunction through September 30, 2020,

11 which the Court entered on June 17, 2020 (the “PI Order”). Citing numerous violations of the PI

12 Order, Plaintiffs moved for an Order to Show Cause why the City should not be held in contempt

13 for violating the PI Order on July 27, 2020. Subsequently, the parties reached an agreement and

14 the Court entered an Order Granting Stipulated Clarification of the Preliminary Injunction

15 (“Clarification Order”). ECF 109. The Clarification Order expanded on but did not supersede

16 the PI Order, which remains in effect. On September 30, 2020, Plaintiffs again moved for an

17 Order to Show Cause why the City should not be held in contempt for violating the Court’s

18 Orders on August 26, September 7, September 22, and September 23. On December 7, 2020, the

19 Court granted Plaintiffs’ motion in part, holding the City in contempt and requesting briefing and

20 a proposed order in support of Plaintiffs’ request for sanctions.

21

III. AUTHORITY AND ARGUMENT

22

A district court has broad discretion to fashion appropriate relief in civil contempt

23 proceedings where the relief is calculated to compel compliance with a court order. See

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1 McComb v. Jacksonville Paper Co., 336 U.S. 187, 193 (1949) (“The measure of the court’s

2 power in civil contempt proceedings is determined by the requirements of full remedial relief.”);

3 United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980). Sanctions may be either coercive or

4 compensatory. See United States v. United Mine Workers of Am., 330 U.S. 258, 303–04 (1947);

5 Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 517 (9th Cir. 1992). If a sanction is imposed

6 to coerce the defendant to comply with the court’s order, “the court must, in determining the size

7 and duration of the sanction, consider the character and magnitude of the harm threatened by

8 continued contumacy, and the probable effectiveness of any suggested sanction in bringing about

9 the result desired.” Whittaker Corp., 953 F.2d at 517 (internal quotations omitted).

10 A. Nonmonetary Coercive Sanctions Are Appropriate

11

Full remedial relief requires nonmonetary coercive sanctions because, as this Court held,

12 the City’s violations are not technical, and “are clear, in part, because they fundamentally defy

13 the Court’s Orders and the purpose behind them.” ECF 161 at 25. The potential harm to

14 Plaintiffs and other peaceful protesters from the City’s continued noncompliance with the

15 Court’s Orders is high, especially in light of the City’s consistent position—including in the

16 lead-up to Plaintiffs’ Second Contempt Motion—blaming protesters when force was used against

17 them rather than acknowledging (much less correcting) any violation of the Court’s Orders. See

18 ECF 114 at 12 (citing Perez Decl., Ex. B, D). In its Nov. 2 Supplemental Response, the City

19 includes a short section that declares that SPD officers are subject to discipline if they are found

20 to violate the Order but provides no example of any officer who has been disciplined. ECF 144

21 at 7-8. The next section heading declares: “Police officers deployed CCWs in compliance with

22 the Court’s Orders.” Id. at 8 (emphasis in original) (footnote omitted).

23

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Case 2:20-cv-00887-RAJ Document 164 Filed 12/11/20 Page 5 of 10

1

Further, as the Court noted, it is impossible to determine whether the City is compliant

2 when the City fails to provide body-worn video footage “for many of the deployments,” ECF

3 161 at 24, even when such evidence is available but not provided. As the City itself has

4 repeatedly stressed, Plaintiffs’ witnesses do not always have the full context for a given

5 deployment, without which it is difficult to ascertain the City’s compliance with the Court’s

6 Orders. The City’s contempt, coupled with its refusal to provide video evidence that would

7 allow the Court to evaluate compliance, demonstrate the need for greater transparency around the

8 City’s use of less-lethal weapons covered by the Orders. Plaintiffs’ proposed sanctions are

9 narrowly tailored and strike a balance between providing the Plaintiffs with sufficient

10 information to effectively monitor compliance without unduly burdening the City.

11

Plaintiffs request that each time the City deploys a less-lethal weapon covered by the

12 Orders,1 the City be required to submit the deploying officer’s Use of Force Report2 and relevant

13 body worn video3 to Plaintiffs within five days of the deployment. The Use of Force Report

14 should include: who deployed the less-lethal weapon; when it was deployed; the type and

15 number of less-lethal weapons deployed; and an explanation about why each deployment of the 16 less-lethal weapon(s) was used.4

17

18

19 1 Alternatively, the Court could require the City provide Use of Force Reports and body worn video only when blast
balls are deployed.

2 Seattle Police Department Policy 8.400-POL-1 already requires officers to report all uses of OC spray, 40 mm
20 launchers, and other impact weapons (including blast balls). http://www.seattle.gov/police-manual/title-8---use-of-

force/8400---use-of-force-reporting-and-investigation. This requirement would not require any additional

21 documentation beyond what is already required in the policy.
3 Relevance will be a subjective determination by the City, but at a minimum should include the 90 seconds of video

22

preceding and succeeding the deployment at issue. 4 Seattle Police Department Police 8.400-TSK-3 requires Use of Force Reports to include, at a minimum, the

following information: brief summary of the incident; description of the Type I force; why the force was necessary;

23 who screened the incident; where the screening occurred; anything else noteworthy. http://www.seattle.gov/police-

manual/title-8---use-of-force/8400---use-of-force-reporting-and-investigation#8.400TSK3

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1

The requirement that the City promptly account for each use of less-lethal weapons is

2 intended to “give to the alleged contemnor the opportunity to bring himself into compliance,”

3 and is entirely appropriate given the conduct at issue here and the City’s failure to bring SPD

4 into compliance even in light of the TRO, the PI Order, Plaintiffs’ first Motion for an order to

5 show cause, the Clarified Order, and the numerous letters Plaintiffs provided the City putting it

6 on notice of officers’ violative conduct. Whittaker Corp., 953 F.2d at 518; see also Puget

7 Soundkeeper Alliance v. Rainier Petroleum Corp., No. C14-0829JLR, 2017 WL 6515970, at *11

8 (W.D. Wash. Dec. 19, 2017) (coercive sanctions should “motivate the contemnor with the

9 opportunity to purge”) (internal quotation omitted).

10

Plaintiffs also request that the City instruct all officers on the specific instances of

11 contempt found by this Court. Such instruction should include provision of the Court’s Order on

12 Plaintiffs’ Motion for Contempt, discussion of the facts surrounding the violations, and a

13 warning of what the consequences will be for similar violations in the future.

14

Where, as here, actions short of sanctions fail to motivate compliance, nonmonetary

15 coercive sanctions of the kind we request are appropriate. For example, in Parsons v. Ryan, 949

16 F.3d 443, 458-59 (9th Cir. 2020), the Ninth Circuit recently upheld nonmonetary sanctions

17 including that the Arizona Department of Corrections file monthly reports of every instance of

18 noncompliance with the parties’ settlement agreement. In another case, after finding that the

19 City of Memphis had violated a consent decree, the court imposed several sanctions to ensure

20 future compliance with the consent decree, including establishing a training program for the

21 police department, revising police department policies, and instituting periodic reporting. See

22 ACLU of Tennessee, Inc. v. City of Memphis, No. 17-CV-02120, 2020 WL 5630418, at *2 (W.D.

23 Tenn. Sept. 21, 2020); see also Trueblood v. Washington State Dep’t of Social and Health

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1 Services, No. C14-1178-MJP, 2016 WL 3632486, at *9 (W.D. Wash. July 7, 2016) (imposing

2 sanctions in the form of a reporting requirement and monetary fines after defendants failed to

3 comply with the court’s preliminary injunction by the compliance deadline); Mannick v. Kaiser

4 Found. Health Plan, Inc., No. C 03-5905 PJH, 2006 WL 3734390, at *14 (N.D. Cal. Dec. 18,

5 2006) (rigorous court oversight was more effective in enforcing compliance with consent decree

6 than monetary penalty and imposed sanction of regular compliance hearings); Coleman v.

7 Brown, No. 90-CV-0520, 2017 WL 1398828, at *5 (E.D. Cal. Apr. 19, 2017), aff’d, 756 F.

8 App’x 677 (9th Cir. 2018) (implementing additional reporting requirements to coerce

9 compliance with court-ordered remedial plan). Cf. In re Recall of Jenny Durkan, No. 98897-8,

10 2020 WL 7252088, at *7 (Wash. Dec. 10, 2020) (expressing that allegations of SPD officers’

11 response “to the protesters’ exercise of their First Amendment rights” are “deeply troubling and

12 certainly cannot be considered frivolous” and that “those responsible must be held accountable”).

13

The nonmonetary sanctions Plaintiffs propose are well within the bounds of the Court’s

14 discretion in remedying contempt and are aimed at changing the harmful police behavior that the

15 Court found was contemptuous. The proposed sanctions will assist the Court in both purging the

16 contempt and preventing future violations of the Court’s orders.

17 B. The Court Should Award Plaintiffs Attorneys’ Fees and Costs

18

When a Court imposes civil sanctions, it has two goals: future compliance with the

19 violated order and full remedial relief to the party harmed by the breach. McComb, 336 U.S. at

20 193. A district court has discretion to award attorneys’ fees for the time and resources spent as a

21 result of the City’s violation of its legal obligations. Harcourt Brace Jovanovich Legal & Prof’l

22 Publ’ns, Inc. v. Multistate Legal Studies, Inc., 26 F.3d 948, 953 (9th Cir. 1994). The award of

23 fees and costs is “independent of an award of compensatory damages.” Cmty. Ass’n for the

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1 Restoration of the Env’t v. Nelson Faria Dairy, Inc., No. CV-04-3060-LRS, 2011 WL 6934707,

2 at *11 (E.D. Wash. Dec. 30, 2011) (citing Perry v. O’Donnell, 759 F.2d 702, 705 (9th Cir.

3 1985)). This rule appreciates that “the cost of bringing the violation to the attention of the court

4 is part of the damages suffered by the prevailing party and those costs would reduce any benefits

5 gained by the prevailing party from the court’s violated order.” Id. at 705. See also Donovan v.

6 Burlington Northern, Inc., 781 F.2d 680, 684 (9th Cir. 1986) (abuse of discretion where the

7 district court failed to analyze whether awarding attorneys’ fees would be a proper remedial

8 measure).

9

Plaintiffs are entitled to compensation for the fees and costs incurred in bringing its

10 motion to hold the City in contempt, pursuant to a petition for fees that Plaintiffs will file

11 separately. See RRW Legacy Mgmt. Grp., Inc. v. Walker, No. C14-326 MJP, 2017 WL 1283480,

12 at *1 (W.D. Wash. Apr. 6, 2017) (granting plaintiff’s motion for sanctions in the form of an

13 award of its fees and costs, and ordering that plaintiff submit its request for reasonable costs and

14 attorney fees in separate motion to be filed within 14 days of date of order), aff'd, 751 F. App’x

15 993 (9th Cir. 2018); see also BBC Grp. NV LLC v. Island Life Rest. Grp. LLC, No. C18-1011-

16 RSM, 2020 WL 4430998, at *5 (W.D. Wash. July 31, 2020) (granting defendant’s motion for

17 contempt sanctions—including attorneys’ fees—and ordering that defendant include its fee

18 request with documentary evidence reflecting fees sought and hourly rate in later Motion for

19 Attorney’s Fees to be made at conclusion of case).

20

IV. CONCLUSION

21

For these reasons, Plaintiffs respectfully request the Court enter Plaintiffs’ proposed

22 Order Granting Plaintiffs’ Motion for Sanctions.

23

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Case 2:20-cv-00887-RAJ Document 164 Filed 12/11/20 Page 9 of 10

1 DATED: December 11, 2020
2 3 4 5 6 7 8 9 10 11 12

By: s/ David A. Perez By: s/ Carolyn S. Gilbert By: s/ Rachel Haney By: s/ Nitika Arora By: s/ Heath Hyatt By: s/ Paige L. Whidbee David A. Perez #43959 Carolyn S. Gilbert #51285 Rachel Haney #52637 Nitika Arora #54084 Heath Hyatt #54141 Paige L. Whidbee # 55072
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com
CarolynGilbert@perkinscoie.com RHaney@perkinscoie.com NArora@perkinscoie.com HHyatt@perkinscoie.com PWhidbee@perkinscoie.com

13

By: s/ Nancy L. Talner

By: s/ Lisa Nowlin

14

By: s/ Breanne Schuster

By: s/ John Midgley

15

Nancy L. Talner #11196

Lisa Nowlin #51512

16

Breanne Schuster #49993

John Midgley #6511

17

American Civil Liberties Union of

18

Washington Foundation P.O. Box 2728

19

Seattle, WA 98111 Telephone: (206) 624-2184

Email: talner@aclu-wa.org

20

lnowlin@aclu-wa.org

bschuster@aclu-wa.org

21

jmidgley@aclu-wa.org

22

By: s/ Robert S. Chang

By: s/ Melissa Lee

23

By: s/ Jessica Levin

Robert S. Chang, #44083

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1

Melissa Lee #38808

Jessica Levin #40837

2 Fred T. Korematsu Center for Law and

3

Equality Ronald A. Peterson Law Clinic

Seattle University School of Law

4

1112 E. Columbia Street

Seattle, WA 98122

5

Telephone: 206.398.4025

Fax: 206.398.4077

6

Email: changro@seattleu.edu

Attorneys for Plaintiffs Black Lives Matter

7

Seattle-King County, Abie Ekenezar, Sharon

Sakamoto, Muraco Kyashna-tochá, Alexander

8

Woldeab, Nathalie Graham, and Alexandra

Chen

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

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1

THE HONORABLE RICHARD A. JONES

2

3

4

5

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON

6

SEATTLE

BLACK LIVES MATTER SEATTLE

No. 2:20-CV-00887-RAJ

7

KING COUNTY, ABIE EKENEZAR,

SHARON SAKAMOTO, MURACO

REPLY IN SUPPORT OF MOTION

8

KYASHNA-TOCHA, ALEXANDER

FOR ORDER TO SHOW CAUSE

WOLDEAB, NATHALIE GRAHAM,

WHY CITY OF SEATTLE SHOULD

9

AND ALEXANDRA CHEN,

NOT BE HELD IN CONTEMPT

10

Plaintiffs,

11

v.

NOTE ON MOTION CALENDAR: November 18, 2020 Oral Argument Requested

12

CITY OF SEATTLE,

13

Defendant.

14

15

16

17

18

19

20

21

22

23
REPLY IN SUPPORT OF MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ)
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1

TABLE OF CONTENTS

2 3
I. 4 5 6 7 8 9 10 11 II.

Page
ARGUMENT ..................................................................................................................... 1
A. The City Asserts the Wrong Legal Standard in an Attempt to Rewrite the Preliminary Injunction. .......................................................................................... 1
1. The Civil Contempt Standard Governs this Motion, not Monell. .............. 1
2. The City Violated the Court’s Orders. ....................................................... 2
B. The City Has Failed to Present Evidence Sufficient to Show Substantial Compliance With the Court’s Orders. ................................................................... 3
1. The City Failed to Address Numerous Deployments of Less-Lethal Weapons Described in Plaintiffs’ Motion.................................................. 3
2. The City’s Purported Justifications for Using Less-Lethal Weapons Against Protesters Are Insufficient to Show Substantial Compliance. ............................................................................................... 4
CONCLUSION.................................................................................................................. 6

12

13

14

15

16

17

18

19

20

21

22

23
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1

I. ARGUMENT

2

A. The City Asserts the Wrong Legal Standard in an Attempt to Rewrite the

Preliminary Injunction.

3 The City of Seattle twice stipulated to injunctive orders governing its conduct that

4 expressly apply to the actions of individual SPD officers, with full knowledge that violations of

5 such orders by its officers could result in a contempt finding. The Court should decline the City’s

6 invitation to rewrite the legal standard for contempt and narrow the scope of the preliminary

7 injunction. Because the City has failed to prove that it substantially complied with the Court’s

8 orders, Plaintiffs’ motion should be granted.

9 1. The Civil Contempt Standard Governs this Motion, not Monell.

10

The City incorrectly claims that Monell applies to Plaintiffs’ motion for contempt.1

11 Monell governs municipal liability for constitutional violations in § 1983 civil rights suits, not

12 contempt allegations when a municipality has already been enjoined. See Monell v. Dep’t of Soc.

13 Servs. of City of New York, 436 U.S. 658, 691 (1978). Plaintiffs are only required to show that

14 SPD officers violated the Court’s orders, not that such violations would create liability under

15 Monell. Cases applying Monell are inapposite to a contempt proceeding where a municipality has

16 stipulated to an Order that explicitly governs conduct of its police department or its officers.

17 Applying the correct standard for civil contempt, Plaintiffs must prove “by clear and

18 convincing evidence that the [nonmoving party] violated a specific and definite order of the

19 court.” F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). Plaintiffs’ motion and

20

21 1 The City’s Monell argument is untimely; it did not raise Monell in its prior filings in connection with this motion.

See ECF 78; ECF 135. The Court should also reject the City’s renewed request that the Court “identify

22 deployments” alleged to be in violation of the Order and allow the City additional time to gather evidence. ECF 144

at 8 n.5. The City has been on notice as to the scope of this motion and evidence at issue, agreed to a process for

23

adjudicating this motion, had the opportunity to file both an initial and supplemental response, and had months to review every use of a LLW on the four dates in question. No further process is due or necessary.

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1 supporting declarations, as well as the City’s own evidence and admissions, establish that SPD

2 officers repeatedly violated several specific and definite provisions of this Court’s orders. 3 Plaintiffs need not prove more.2

4

2. The City Violated the Court’s Orders.

5

The City asserts that the Court’s orders “do not apply to those engaged in criminal

6 conduct” or “unlawful activities” such as blocking traffic or littering. ECF 144 at 6. That is both

7 irrelevant and incorrect. First, this argument is non-responsive to Plaintiffs’ extensive and

8 unrebutted evidence that SPD deployed less-lethal weapons (“LLWs”) against many people

9 peacefully engaging in protests. Second, it finds no basis in the orders themselves, which do not

10 authorize the City to use LLWs against any protester suspected of committing any kind of 11 infraction3; rather, the orders allow SPD to use LLWs at protests only when “necessary,

12 reasonable, proportional, and targeted . . . to protect against a specific imminent threat of

13 physical harm to themselves or identifiable others or to respond to specific acts of violence or

14 destruction of property.” ECF 42 at 2 (emphasis added). Equally unavailing is the City’s

15 argument that unlawful acts by a small minority of people in attendance at a protest strip other 16 protesters of the protections of this Court’s orders.4 The City wrongly claims that this Court’s

17 orders “acknowledge[] that in the event of an unlawful assembly or riot it may not be feasible for

18 CCW deployments to be as specifically targeted as would be expected during lawful

19

20
2 See, e.g., Labor/Cmty. Strategy Ctr. v. Los Angeles Cty. Metro. Transp. Auth., 564 F.3d 1115, 1130 (9th Cir. 2009)

21

(rejecting MTA’s attempt to show substantial compliance “by formulating a different measure of load improvement than the parties’ bargain required”); Bradford Techs., Inc. v. NCV Software.com, No. C 11-04621 EDL, 2013 WL

75772, at *7 (N.D. Cal. Jan. 4, 2013) (“no ‘substantial compliance’ when an SPO is directly violated”).

22 3 The City must comply with the requirements of the order, regardless of whether the protester was allegedly

committing an infraction such as littering (ECF 144 at 9), blocking the road (id. at 8), “obstructing a police officer”

23

(ECF 147-1 at 15), or “failure to disperse” (id.). 4 See also N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 933-43 (1982) (rejecting the call to impute specific

violent acts to an entire protest during the civil rights movement).

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1 demonstrations[.]” ECF 144 at 4 (citing Clarified PI). The Clarified PI contains no such

2 language. To the contrary, the Clarified PI—to which the City voluntarily agreed—specifically

3 states that “[d]eclaring a protest to be an unlawful assembly or a riot does not exempt the City

4 from its obligation to comply with this Order[.]” ECF 110 at 5 (emphasis added). That provision

5 makes clear that SPD cannot circumvent the PI by declaring an entire protest to be unlawful.

6 B. 7 8

The City Has Failed to Present Evidence Sufficient to Show Substantial Compliance With the Court’s Orders.
1. The City Failed to Address Numerous Deployments of Less-Lethal Weapons Described in Plaintiffs’ Motion.

9

It is not enough for the City to show that it instructed SPD officers on the Court’s orders;

10 the City must also show that its officers substantially complied with them. But the City fails to

11 address much of Plaintiffs’ evidence that SPD used LLWs against peaceful protestors in a

12 manner that was indiscriminate, unreasonable, disproportionate, and unnecessary to prevent

13 specific injury or destruction of property.

14

For example, on August 26, SPD deployed OC spray and a number of blast balls against

15 peaceful vigil attendees. ECF 116 ¶ 21; ECF 118 ¶¶ 11-14; ECF 117 ¶¶ 9, 15; ECF 134 ¶ 8. Yet

16 the City provides no justification for a number of these deployments or provides an explanation

17 plainly inconsistent with video evidence. Compare ECF 145, Ex. A (“Video A”) at 41:59 (blast

18 ball deployed at retreating crowd) with ECF 145-1 at 3 (acknowledging blast ball without

19 explanation); compare ECF 146-1 at 19 (explaining OC spray deployed at protestors “assaulting

20 an officer”) with Video A at 43:20 (showing officer striking protestor and deploying OC spray

21 and no footage of protestors assaulting officers).

22

On September 23, SPD deployed at least 22 blast balls, but the City provided no

23 explanation or video footage for a number of these deployments. See, e.g., ECF 144 at 12-13

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1 (failing to address any blast ball deployments on Sept. 23); ECF 145-1 at 15 (listing no video

2 evidence for use of blast balls). There are seven Use of Force Reports (“UFRs”) where officers

3 state they deployed as many as six blast balls each on September 23, but body-worn video

4 (“BWV”) was not provided for any of those officers. ECF 146-2 at 2, 42, 54, 63, 92, 124, 162.

5 The only BWV provided where the officer throws a blast ball on September 23 is Officer

6 Eastgard’s. ECF 145, Ex. C (“Video C”) at 47:55, 50:05 (throwing blast balls across intersection

7 and over other officers for no apparent reason). His corresponding UFR not only fails to explain

8 these deployments, it fails to mention them at all. ECF 146-4 at 132. Other footage shows blast

9 balls detonating in or near the crowd of protestors, corroborating Plaintiffs’ evidence, but the

10 City provides no explanation or justification for their use.

11

Because the Plaintiffs have shown clear and convincing evidence that the City deployed

12 LLWs restricted by the Court’s orders on multiple occasions, and because the City has failed to

13 adequately justify these deployments, the City has failed to show substantial compliance and

14 should be found in contempt.

15

2. The City’s Purported Justifications for Using Less-Lethal Weapons Against

Protesters Are Insufficient to Show Substantial Compliance.

16 The City’s failure to address many of the alleged violations in Plaintiffs’ motion is

17 sufficient to grant the motion. But the City also fails to demonstrate compliance with respect to

18 the LLW deployments the City actually addresses.

19 First, the City repeatedly attempts to justify LLW deployment based on alleged protester

20 misconduct that does not pose a “specific imminent threat of physical harm” to a police officer or

21 identifiable others and was not a “specific act of violence or destruction of property.” E.g., ECF

22 148 ¶ 32 (stating that blast ball was deployed “to create separation between the officers and the

23 crowd”); ECF 137, Ex. B at 1:07 (corresponding video); ECF 146-1 at 48 (justifying OC spray

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1 deployment for failure to move back); ECF 144 at 10 (same); id. at 11 (stating officers used blast

2 balls and OC spray to “keep the crowd moving”); ECF 145, Ex. B (“Video B”) at 47:50

3 (showing officer spraying back of protester); ECF 146-4 at 165 (stating that blast ball was

4 thrown “to keep [protesters] from organizing”).

5

On September 7, for example, 80 SPD officers ambushed a peaceful protest under the

6 pretense of attempting to arrest a single protester who allegedly had a Molotov cocktail. See ECF 7 144 at 9-10; Video B.5 Officers OC sprayed protesters recklessly and in a manner plainly

8 inconsistent with the Court’s Orders. See Video B at 24:09 (showing Didier OC spraying woman

9 filming him), 24:21 (showing Didier OC spraying Plaintiff Chen while she films and retreats),

10 26:48 (showing Didier OC spraying people as he bikes into crowd), 29:40 (showing officers

11 repeatedly OC spraying retreating crowd), 36:17 (same); ECF 146-2, Ex. B at 283 (stating “I

12 used pepper spray to move individuals in the crowd”).

13

Second, even if LLW deployments were justified to prevent property destruction or a

14 specific imminent threat of physical harm, SPD repeatedly deployed LLWs indiscriminately and

15 disproportionately in response. See Video B at 28:12 (showing Didier throwing blast ball into the

16 crowd after asking who threw a rock and another officer responding he did not know), 28:10

17 (showing numerous blast balls detonating next to retreating crowd), 30:37 (showing Didier

18 lobbing blast ball into crowd), 33:53 (showing blast balls thrown indiscriminately into retreating

19 column of people), 48:57 (showing Eastman throwing blast ball across three lanes of road at

20 crowd), 1:02:07 (showing Dorr removing pin from blast ball, waiting 30 seconds to throw it into

21

22 5 The few bags of garbage placed along the parking lot fence are a red herring. SPD does not allege LLWs were used

in response to the bags and SPD made no effort to address the bags at the time. The City attempts to connect

23

Plaintiff Chen with a protester who threw a garbage bag over the fence “a few moments later” (Video B at 4:11) by editing out three intervening minutes, without notice to the viewer. See Video B at 3:30; Supp. Decl. of Alexandra

Chen at ¶¶ 4-11.

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1 crowd with no clear provocation or target); Video C at 24:50 (showing multiple officers spraying

2 entire line of protesters retreating), 47:55 (showing blast ball thrown into crowd), 52:23-45

3 (showing blast ball thrown to “disperse crowd”). In addition to not being targeted or in response

4 to a specific threat of imminent harm, many of these deployments appear to be for the purpose of

5 re-routing the protest, in violation of the Clarified PI Section 6.1.a. E.g., ECF 146-2, Ex. B, at 43

6 (“Lt. Brooks ordered the use of OC and blast balls to continue pushing the crowd”), 283 (“I

7 deployed blast balls to move the crowd”).

8

Third, the City repeatedly claims that LLWs were deployed “in response” to acts that

9 were far in time or location from SPD’s deployment of force.6 Minutes or hours elapsed between

10 the alleged precipitating act and deployment; in many instances, the act and deployment were

11 blocks apart. E.g., ECF 148 ¶¶ 15-16 (connecting property destruction resulting in arrests to Aug.

12 26 vigil that began approximately 90 minutes later and 1.9 miles away from arrests); id. ¶¶ 30-33

13 (connecting protesters on Sept. 22 allegedly surrounding SPD vehicles and the later deployment

14 of a blast ball); see generally Video C (attempting to justify deployments of LLWs based on

15 unrelated thrown objects, fireworks, and trash can fires). An alleged act of property destruction

16 or violence by a protester does not give SPD carte blanche to use LLWs against that person or

17 the crowd anywhere and at any time after that.

18

II. CONCLUSION

19

Because Plaintiffs have presented clear and convincing evidence of multiple incidents of

SPD officers violating this Court’s orders, and because the City has failed to show how such 20
actions substantially complied with the Orders, Plaintiff’s Motion should be granted.

21

22

6 The City’s editing of the videos makes it difficult to understand how events relate to each other temporally. There

23

were 20 instances in Video B and 15 in Video C where the surveillance or body-worn video was edited to remove anywhere from 30 seconds to 30 minutes of video without warning to the viewer. Cutting video between thrown

objects or fireworks and deployments of LLWs could imply more correlation between events than is warranted.

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1 DATED: November 9, 2020
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
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By: s/ David A. Perez By: s/ Carolyn S. Gilbert By: s/ Nitika Arora By: s/ Heath Hyatt By: s/ Paige L. Whidbee David A. Perez #43959 Carolyn S. Gilbert #51285 Nitika Arora #54084 Heath Hyatt #54141 Paige L. Whidbee # 55072
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com
CarolynGilbert@perkinscoie.com NArora@perkinscoie.com HHyatt@perkinscoie.com PWhidbee@perkinscoie.com
By: s/ Molly Tack-Hooper By: s/ Nancy L. Talner By: s/ Lisa Nowlin By: s/ Breanne Schuster By: s/ John Midgley Molly Tack-Hooper, #56356 Nancy L. Talner #11196 Lisa Nowlin #51512 Breanne Schuster #49993 John Midgley #6511
American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 Telephone: (206) 624-2184 Email: mtackhooper@aclu-wa.org
talner@aclu-wa.org lnowlin@aclu-wa.org bschuster@aclu-wa.org jmidgley@aclu-wa.org
By: s/ Robert S. Chang By: s/ Melissa Lee By: s/ Jessica Levin

Case 2:20-cv-00887-RAJ Document 152 Filed 11/09/20 Page 10 of 10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
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Robert S. Chang, #44083 Melissa Lee #38808 Jessica Levin #40837
Fred T. Korematsu Center for Law and Equality Ronald A. Peterson Law Clinic Seattle University School of Law 1112 E. Columbia Street Seattle, WA 98122 Telephone: 206.398.4025 Fax: 206.398.4077 Email: changro@seattleu.edu
Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen

 
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1

HONORABLE RICHARD A. JONES

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9 BLACK LIVES MATTER SEATTLE-KING

10

COUNTY, ABIE EKENEZAR, SHARON SAKAMOTO, MURACO KYASHNA-

11 TOCHA, ALEXANDER WOLDEAB,

NATHALIE GRAHAM, AND 12 ALEXANDRA CHEN,

Case No. 2:20-cv-00887-RAJ ORDER

13

Plaintiffs,

14

v.

15 CITY OF SEATTLE, SEATTLE POLICE 16 DEPARTMENT,

17

Defendant.

18

19 I. INTRODUCTION
20 Four weapons and four protests. This Order covers Seattle Police Department’s
21 use of four weapons (pepper spray, pepper balls, blast balls, and paintballs) during four
22 protests (August 26, September 7, September 22, and September 23). The Court’s duty is
23 simple: it must determine which uses were fair and which were in violation of the Court’s
24 preliminary injunction orders.
25 In their briefing, Plaintiffs raise a range of concerns, from general police conduct
26 and demeanor to specific SPD tactics, such as the use of bicycles to move crowds from
27

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1 location to location, the towing of protestor vehicles blocking roads, and the playing of

2 loud country music during an arrest. Plaintiffs contend that they included these details

3 for context. For clarity, however, the Court states here: Those tactics were not and are

4 not before this Court. They were not part of the Court’s temporary restraining order, and

5 they are not part of the Court’s operative preliminary injunctions.

6

To be sure, the protests were much more complex and dynamic than set forth in

7 this Order. Hundreds of protestors, dozens of police officers, and countless projectiles

8 exchanged between them make it nearly impossible to render a comprehensive factual

9 account. And the evidence provided to this Court, though robust, is imperfect. Still,

10 despite the grey, the Court must determine by clear and convincing evidence whether the

11 City violated this Court’s previous orders and should thereby be held in contempt.

12

Having reviewed the parties’ briefing and the relevant record and having heard

13 oral argument, the Court GRANTS in part and DENIES in part Plaintiff’s (Second)

14 Motion for Order to Show Cause Why City of Seattle Should Not Be Held in Contempt,

15 Dkt. # 114, and HOLDS the City in civil contempt for the specific violations of the

16 preliminary injunction orders explained below.

17

II. BACKGROUND

18

A. Procedural History

19

In June of this year, Plaintiffs obtained a temporary restraining order against

20 Defendant City of Seattle (“City”). Dkt. # 34. Under that order, the City, Seattle Police

21 Department (“SPD”), and its officers were enjoined from employing “chemical irritants

22 or projectiles of any kind against persons peacefully engaging in protests or

23 demonstrations.” Id. at 11. Some irritants and projectiles included CS gas (tear gas), OC

24 spray (pepper spray), flash-bang grenades, “pepper balls,” “blast balls,” rubber bullets,

25 and foam-tip projectiles (collectively, “less lethal weapons”). Id. The order did not

26 prevent officers from using such weapons in certain limited cases. Id. Days after it

27 granted the temporary restraining order, this Court entered a stipulated preliminary

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1 injunction with nearly identical terms. Dkt. # 42.

2

A month later, after a confrontation between protestors and SPD on July 25, 2020,

3 Plaintiffs moved for an order to show cause why the City should not be held in contempt

4 of the preliminary injunction. Dkt. # 51. The Court set that matter for an evidentiary

5 hearing, Dkt. # 88, 90, but the hearing did not take place. Instead, the parties entered a

6 stipulation, amending the previous preliminary injunction. Dkt. # 109. The amendment

7 added certain protections for journalists, medics, and legal observers. Id. at 3-4. It also

8 imposed additional obligations on SPD and additional limitations on its use of less lethal

9 weapons. Id. at 3-6. The Court entered the amended preliminary injunction the day it

10 was filed. Dkt. # 110. The original and amended preliminary injunctions are collectively

11 referred to as the “Orders.” Dkt. ## 42, 110.

12

B. Second Contempt Motion

13

On September 30, 2020, Plaintiffs filed their second contempt motion. Dkt. # 114.

14 The motion is based on protests that occurred on August 26, September 7, September 22,

15 and September 23 of this year. Id. at 3-10. Plaintiffs argue that on these days SPD

16 deployed less lethal weapons in violation of the Orders. Id. at 3. Plaintiffs and the City

17 agreed to forego an evidentiary hearing, asking the Court instead to consider the motion

18 based entirely on written submissions without any live testimony. Dkt. # 141 at 2. The

19 written submissions included scores of video evidence. Both parties compiled their

20 respective video evidence onto flash drives and submitted the flash drives to the Court.

21 Dkt. ## 149, 154.

22

i. August 26, 2020 Protest

23

Many months ago, in early July, Summer Taylor was killed during a protest when

24 a driver struck Taylor with his car. Dkt. # 114 at 3. On August 26, 2020, to

25 commemorate Taylor’s death, protestors held a vigil on a sidewalk outside the

26 Washington State Patrol station near Roanoke Street and East Broadway. Dkt. # 148

27 ¶ 16. Gathering around a memorial, vigil attendees shared their feelings and a moment of

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1 silence. Dkt. # 116 ¶ 4. To shield attendees from traffic, protestors formed a “car

2 brigade” 1 behind them. Id. ¶ 7; Dkt. # 134 ¶ 4.

3

According to SPD, however, the car brigade created several public safety hazards.

4 The dozen or so vehicles in the brigade were parked in front of the Washington State

5 Patrol station and the Seattle Fire station, blocking emergency vehicles from entering and

6 exiting. Dkt. # 148 ¶ 16. The brigade also blocked a highway off-ramp, endangering

7 motorists exiting the highway at high speeds. Id.

8

SPD instructed the brigade drivers to move their vehicles and told them that, if

9 they did not comply, their vehicles would be towed and impounded. Dkt. # 145-1 Ex. A

10 (8/26 Video) at 1:30 to 2:07.2 Shortly after, SPD moved into the street and formed a

11 police line. Dkt. # 116 ¶ 6; Dkt. # 148 ¶ 17. The police line then advanced, pushing

12 protestors with batons while chanting “move back.” Dkt. # 117 ¶ 8. SPD pushed the

13 protestors westbound. Dkt. # 148 ¶ 17. During the push, the protestors resisted, using

14 umbrellas as shields and deploying “pyrotechnics” and “smoke devices.” Id. One

15 protestor was arrested for shining a laser pointer into an officer’s eyes. Id. Other

16 protestors tried to de-arrest the protestor with the laser pointer, prompting SPD to use OC

17 spray on them. Id.

18

Eventually, SPD steered the crowd north on Harvard Avenue. Dkt. # 148 ¶ 20.

19 There, an SPD officer observed a suspect throw “two spherical objects” at officers, which

20 he thought could be explosive devices. Id. ¶ 19. In response, the officer threw a blast

21 ball. Id. ¶¶ 19-20. The officer claimed that he tried to throw the blast ball towards the

22

23 1 Car brigades are when protestors form a barricade with their parked vehicles. See Dkt.

# 116 ¶ 7; Dkt. # 134 ¶ 4. 24 2 The City has provided three video compilations for the August 26, September 7, and

25 September 23 protests. Those compilations are attached to the declaration of Robert L. Christie as Exhibits A (8/26 protest), B (9/7 protest), and C (9/23 protest). Dkt. # 145
26 ¶¶ 4-6; Dkt. # 145-1 at 1. Throughout this Order, the Court refers to specific portions of

27

those compilations and other video evidence. Those references are in the following format—[hour]:[minute]:[second] or [minute]:[second].

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1 protestor but that it accidentally bounced off another protestor’s shield. Dkt. # 146-1 at

2 4-5.

3

On the night of Summer Taylor’s vigil, OC spray was used multiple times. See,

4 e.g., Dkt. # 145-1 Ex. A (8/26 Video) at 1:12:23 to 1:12:40, 1:17:20 to 1:17:35. In their

5 brief, Plaintiffs assert that “a number of blast balls” were used that night. Dkt. # 152 at 5;

6 see also Dkt. # 134 ¶¶ 6-7. But at oral argument the City represented that only one blast

7 ball was used (the one discussed above), to which Plaintiffs did not object.

8

ii. September 7, 2020 Protest

9

On Labor Day, September 7, 2020, hundreds of protestors gathered at the light rail

10 station in the International District. Dkt. # 120 ¶ 3; Dkt. # 148 ¶ 22. Calling for the

11 abolishment of SPD’s police union, the protestors marched south from the rail station to

12 the Seattle Police Officers Guild (“SPOG”) in SoDo. Dkt. # 122 ¶ 3; Dkt. # 123 ¶ 7; Dkt.

13 # 148 ¶ 22. SPD monitored them and received reports that a member of the crowd

14 possessed a Molotov cocktail. Id. ¶ 23.

15

When the protestors reached the SPOG building, they formed a crowd at the head

16 of an alleyway next to it. Dkt. # 145-1 Ex. B (9/7 Video) at 4:21 to 8:15. SPD spotted

17 the Molotov cocktail suspect in the crowd. Dkt. # 148 ¶ 25. Dozens of SPD officers on

18 bicycles emerged from the alleyway and stormed one side of the crowd to arrest the

19 suspect. Id. ¶ 25; Dkt. # 120 ¶ 10. A melee broke out, protestors on one side and SPD on

20 the other. Dkt. # 145-1 Ex. B (9/7 Video) at 23:23 to 25:33. Protestors threw projectiles,

21 discharged a fire extinguisher, and hid behind makeshift shields and umbrellas. Dkt.

22 # 120 ¶ 10. SPD threw blast balls, used OC spray, and made several arrests. Id.

23

SPD then pushed the crowd north, where the conflict continued. Dkt. # 148 ¶ 26.

24 During their retreat, several protestors saw SPD use less lethal weapons, including OC

25 spray, blast balls, and a pepper ball gun. Based on their observations, they thought the

26 deployments were random and unprovoked. See, e.g., Dkt. # 116 ¶¶ 47-48; Dkt. # 117

27 ¶¶ 23-27; Dkt. # 122 ¶¶ 12-18. SPD said it used these weapons, however, because

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1 protestors were throwing projectiles at officers, such as rocks, bottles, improvised

2 explosive devices, and smoke grenades. Dkt. # 148 ¶ 26. One protestor, from deep

3 within a crowd, even threw a lit Molotov cocktail. Id. ¶ 27. It nearly hit Plaintiff

4 Alexandra Chen and another protestor before exploding in the street and setting a portion

5 of the street on fire. Dkt. # 145-1 Ex. B (9/7 Video) at 56:50 to 57:55. After the protest

6 ended, SPD recovered a box of 12 unlit Molotov cocktails. Id. ¶ 28; Dkt. # 145-1 at 46-

7 48.

8

In total, SPD used three less lethal weapons that day: OC spray, blast balls, and

9 pepper balls.

10

iii. September 22, 2020 Protest

11

On the evening of September 22, 2020, after Seattle City Council voted to cut

12 SPD’s budget, a small group of protestors gathered in Capitol Hill. Dkt. # 132 ¶ 4. They

13 were calling for the defunding and abolishing of SPD. Id.

14

SPD used vehicles to direct the protestors north on 12th Avenue, away from the

15 SPD East Precinct. Dkt. # 148 ¶ 30. Surrounding the protestors, SPD vehicles directed

16 protestors from behind, and further up the street there were SPD vehicles driving

17 backwards in front of the protestors. Dkt. # 131 ¶ 7. SPD turned on their lights and

18 sirens, and pedestrian traffic was limited. Id. ¶¶ 4-6. After a few blocks, the protestors

19 reversed course and headed south, back to the East Precinct. Dkt. # 148 ¶ 30. Protestors

20 shined strobe lights into the SPD vehicles in front of them; one even shined a laser-

21 pointer. Id. ¶ 31; see also id. Ex. F. They pounded on the windows of one vehicle and

22 “used lit cigarettes to damage the hood.” Id. ¶ 31. SPD warned the protestors not to

23 interfere with the vehicles, which they ignored. Id. ¶¶ 31-32.

24

Nearing the East Precinct, Lieutenant John Brooks ordered another officer to use a

25 blast ball “to create separation” between the officers and crowd once they reached the

26 intersection in front of the precinct. Dkt. # 148 ¶ 32; see also id. Exs. E & F. The officer

27 who received the command was on a bicycle. Id. Ex. E. She rode to and parked at the

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1 corner of the intersection, waiting for the crowd and SPD vehicles to catch up. Id. When

2 the protestors reached the middle of the intersection, they were feet away from an SPD

3 vehicle. Id. The bicycle officer then deployed a blast ball in the middle of the crowd,

4 which exploded and caused the protestors to turn into another street. Id.

5

SPD justified its use of the blast ball on public safety grounds. It said that the

6 strobe lights shined into SPD vehicles created an “obvious hazard for the driver,” who

7 was driving in reverse. Dkt. # 148 ¶ 33. Only a few of the many protestors had or used

8 strobe lights that night. Id. Ex. F.

9

In total, only one less lethal weapon was used, a single blast ball.

10

iv. September 23, 2020 Protest

11

Breonna Taylor was an African-American woman who, earlier this year, was shot

12 and killed in her apartment by police officers in Louisville, Kentucky. On September 23,

13 2020, a grand jury decided not to charge any officer for her death, prompting several

14 protests in Seattle later that evening. Dkt. # 117 ¶ 34; Dkt. # 122 ¶ 23; Dkt. # 133 ¶ 3;

15 Dkt. # 139 ¶¶ 5, 7. Of the protests, Plaintiffs’ motion focuses only on the one held at Cal

16 Anderson Park in Capitol Hill, just down the street from the SPD East Precinct. Dkt.

17 # 114 at 9-10.

18

The Cal Anderson Park protest began at 7:00 p.m. Dkt. # 139 ¶ 5. For hours, SPD

19 monitored the protestors as they marched about Capitol Hill and as some protestors

20 vandalized property and threw objects at police. Id. ¶¶ 10-22. Eventually, the crowd of

21 protestors settled at 11th Avenue and East Pine Street (the southeast corner of Cal

22 Anderson Park and a block away from the East Precinct). Id. ¶ 22. SPD monitored the

23 crowd from a distance. Id. But soon after, a protestor threw a firework into the East

24 Precinct, where officers were present. Id. ¶ 23-24; Dkt. # 117 ¶ 41.

25

Officers identified the protestor who threw the firework and tried to arrest him.

26 Dkt. # 139 ¶ 25. In their attempt, officers on bicycle, on foot, and in vehicles left the East

27 Precinct, pursued the protestor, and maneuvered into the crowd at 11th Avenue and East

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1 Pine Street. Dkt. # 145-1 Ex. C (9/23 Video) at 14:47 to 24:29. Some protestors threw

2 objects at officers, and some officers sprayed protestors with OC spray. Id. Afterwards,

3 SPD retreated to the East Precinct. Dkt. # 139 ¶¶ 26, 29. During that retreat, an officer

4 was hit in the head with a bat. Id. ¶ 28; see infra Section IV.C.ii.1

5

SPD monitored the protest from its new position. Id. ¶ 26. Not long after, several

6 protestors started a fire in the middle of the road, between the officers at the East Precinct

7 and the crowd at 11th Avenue and East Pine Street. Id. ¶ 29; Dkt. # 120 ¶ 37; Dkt. # 133

8 ¶ 10. The fire grew, as did SPD’s concern for the safety of surrounding businesses and

9 residences. Dkt. # 139 ¶ 29. SPD re-engaged the crowd and ordered them to disperse.

10 Id. ¶¶ 29-30. Like the previous engagement, several protestors threw objects at SPD, and

11 SPD responded with OC spray and blast balls. Dkt. # 145-1 Ex. C (9/23 Video) at 31:30

12 to 32:15.

13

For more than an hour, SPD pushed the crowd back and steered protestors

14 throughout the Capitol Hill neighborhood. Dkt. # 139 ¶¶ 31-38; Dkt. # 122 ¶¶ 34, 41-42.

15 During that push, SPD used OC spray, blast balls, and paintballs, while protestors threw

16 rocks, fireworks, improvised explosive devices, and other projectiles. The constant that

17 night: SPD’s throwing of blast balls and protestors’ throwing of projectiles. See, e.g.,

18 Dkt. # 145-1 Ex. C (9/23 Video) at 1:11:55 to 1:13:25.

19

In total, SPD used three less lethal weapons that evening: OC spray, blast balls,

20 and paintballs.

21

III. LEGAL STANDARD

22

Civil contempt occurs when a party disobeys a “specific and definite court order”

23 by “fail[ing] to take all reasonable steps within the party’s power to comply.” In re Dual-

24 Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993). “A

25 court has wide latitude in determining whether there has been contemptuous defiance of

26 its order.” Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir. 1984).

27

A party alleging civil contempt must establish that the other party (1) violated a

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1 court order, (2) beyond substantial compliance, (3) not based on a good faith and

2 reasonable interpretation of the order, (4) by clear and convincing evidence. Labor/Cmty.

3 Strategy Ctr. v. Los Angeles Cty. Metro. Transp. Auth., 564 F.3d 1115, 1123 (9th Cir.

4 2009) (citing Dual-Deck, 10 F.3d at 695). As to “substantial compliance,” if a violating

5 party has taken “all reasonable steps” to comply with an order, then “technical or

6 inadvertent violations” will not support a civil contempt finding. Gen. Signal Corp. v.

7 Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir. 1986). And regarding the “clear and

8 convincing” evidentiary standard, it is higher than the preponderance of the evidence

9 standard but less stringent than beyond a reasonable doubt. Balla v. Idaho State Bd. of

10 Corr., 869 F.2d 461, 466 (9th Cir. 1989).

11

IV. DISCUSSION

12

A. Monell

13

The City argues that the Court must not only apply the traditional civil contempt

14 analysis; it says that the Court must also apply the municipal liability analysis articulated

15 in Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 692 (1978). Dkt. # 144 at 4-5.

16 According to the City, just as a municipality cannot be held liable for the actions of an

17 individual tortfeasor, it cannot be held in contempt for the actions of an individual

18 tortfeasor. Id. In effect, the City asks the Court to fuse the civil contempt analysis with

19 Monell.

20

The City’s approach, though novel and innovative, is nowhere to be found in the

21 “well-settled” civil contempt case law. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239

22 (9th Cir. 1999) (holding that the “standard for finding a party in civil contempt is well-

23 settled”). Moreover, whether an individual officer’s actions may be fairly imputed to the

24 City is not at issue. Both Orders—stipulated to by the City—provide that the City

25 “including the Seattle Police Department and any other officers” are enjoined by the

26 terms of the Orders. Dkt. # 42 at 2 (emphasis added); see also Dkt. # 110 at 3. Thus, the

27 City has already agreed that violations by individual officers are nonetheless violations of

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1 the Orders. For these reasons, Monell does not apply.

2

B. Preliminary Injunction Orders

3

Two questions are before this Court: (1) whether the City violated the Orders and

4 (2) if so, whether those violations were beyond substantial compliance and not based on a

5 good faith and reasonable interpretation. Plaintiffs must answer those questions in the

6 affirmative by clear and convincing evidence. For clarity, the Court will first summarize

7 the terms of the Orders and then resolve those two questions.

8

i. Preliminary Injunction

9

Under the Stipulated Order Entering a Preliminary Injunction, SPD and its officers

10 are enjoined from using less lethal weapons against “persons peacefully engaging in

11 protests or demonstrations.” Dkt. # 42 ¶ 1. But individual officers are not enjoined from

12 taking “necessary, reasonable, proportional, and targeted action to protect against a

13 specific imminent threat of physical harm to themselves or identifiable others or to

14 respond to specific acts of violence or destruction of property.” Id. (emphasis added).

15 Put differently, if an officer uses a less lethal weapon, then the use must be necessary,

16 reasonable, proportional, and targeted. Id. And the use is only justified if it is to protect

17 against a specific imminent threat of harm or to respond to acts of violence or destruction.

18 Id.

19

ii. Amended Preliminary Injunction

20

The Stipulated Clarification of Preliminary Injunction adds several new terms to

21 the initial preliminary injunction. Dkt. # 110. Only a few are relevant here.

22

Some new terms address specific SPD tactics, such as “re-routing” protests. SPD

23 and its officers are enjoined from using less lethal weapons to re-route a protest, unless

24 re-routing is “necessary to prevent specific imminent threat of physical harm to

25 themselves or identifiable others, or to respond to specific acts of violence or destruction

26 of property.” Id. ¶ 6(1)(a).

27

Other terms impose additional obligations on SPD and its officers and further

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1 restrict their use of less lethal weapons. For example, SPD and its officers are enjoined

2 from using less lethal weapons without, when feasible, first issuing a warning. Id.

3 ¶ 6(1)(b). Further, if they use less lethal weapons in accordance with the Orders, they

4 must not deploy the weapons “indiscriminately into a crowd.” Id. ¶ 6(7).

5

Finally, some terms address the use of certain less lethal weapons. Specifically,

6 the City shall not be liable under either preliminary injunction order “if blast balls are

7 used for reasons consistent with th[e Orders] but directed to an open space near the target

8 individual(s) rather than at individuals.” Id. ¶ 6(5).

9

In sum, the Orders—stipulated to by both parties—outline the circumstances and

10 manner in which less lethal weapons may be used. To determine if the City is in

11 contempt, the Court must compare SPD’s actual deployments against the terms of the

12 Orders.

13

C. Violation of the Orders

14

Four less lethal weapons were used during the protests: pepper balls, paintballs,

15 OC spray, and blast balls. The Court analyzes SPD’s deployment of each weapon in turn.

16

i. Pepper Balls & Paintballs

17

The FN 303 is a “pressurized launcher that fires a .68 caliber 8.5[-]gram

18 polystyrene projectile.” Dkt. # 146-4 at 14. The projectile is filled with either yellow

19 paint or “powdered O.C.” Dkt. # 146-2 at 8. Put more plainly, the FN 303 shoots balls

20 filled with paint or pepper powder. The weapon is covered under the Orders, which

21 specifically apply to “pepper balls” and “projectiles of any kind.” Dkt. # 42 ¶ 1. SPD

22 fired the FN 303 on only two of the four protests, September 7 and September 23.

23

During the September 7 protest, a female protestor holding a large traffic cone in

24 each hand ran towards officers. Dkt. # 146-2 at 8-10. One officer, carrying an FN 303

25 loaded with pepper balls, noticed the protestor and believed that she posed a threat. Id.

26 The protestor threw one of the cones at a different officer, and as she prepared to throw

27 the other, the officer carrying the FN 303 fired five pepper ball rounds at her. Id.; see

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1 also Dkt. # 145-1 Ex. B (9/7 Video) at 42:45 to 44:11; Dkt. # 120 ¶ 16 at 0:38 to 0:46.

2 Based on the officer’s observations, all five rounds hit her. See Dkt. # 146-2 at 10-11.

3

Similarly, on September 23, SPD fired yellow paintballs at a protestor threatening

4 officers with a broken umbrella, the fabric having been ripped away and the metal ribs

5 twirling about freely. Dkt. # 146-4 at 14-15. The protestor taunted and threatened the

6 officers with the umbrella by raising it to the officers’ eye level. Id. As SPD pushed the

7 crowd back, the protestor with the umbrella again raised it inches away from an officer’s

8 head. Id. That officer tried to seize the umbrella, but the protestor clung to it and fell.

9 Id. When the protestor fell, a different officer, carrying an FN 303 with yellow

10 paintballs, fired five rounds at the protestor. Id. The protestor released the umbrella and

11 retreated. Id.; see also Dkt. # 145-1 Ex. C (9/23 Video) at 56:00 to 59:20. Based on the

12 officer’s observations, all five rounds hit the protestor. See Dkt. # 146-4 at 15-17.

13

Clearly, these two deployments are compliant with the Orders. On both occasions,

14 the protestors posed a “specific imminent threat of physical harm” to officers. Dkt. # 42

15 ¶ 1. One officer claimed that the traffic cone “could have struck [officers] in the head,

16 face or other body part” and could have “injure[d] [or] incapacitate[d]” them. Dkt.

17 # 146-2 at 10. The other officer said that the umbrella’s “multiple sharp rigid [ribs] could

18 [have] cause[d] serious injury, especially to the face.” Dkt. # 146-4 at 15. Plaintiffs do

19 not suggest that these threats lack credibility or that they were insufficiently grave. Also,

20 on both occasions, the officer’s actions were “necessary, reasonable, proportional, and

21 targeted.” Dkt. # 42 ¶ 1. Stopping an assault on other officers was reasonable and

22 necessary. Striking only the protestors posing a threat, and no others, was targeted. And

23 firing only as many rounds as necessary to disable the threat, as the officers did, was

24 proportional.

25

Thus, SPD’s deployment of pepper balls and paintballs on September 7 and

26 September 23 complied with the Orders.

27

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1

ii. OC Spray

2

Pepper spray (“oleoresin capsicum” or “OC” spray) is a less lethal weapon

3 covered by the Orders. Dkt. # 42 ¶ 1. It was deployed on several occasions during the

4 August 26, September 7, and September 23 protests. Exactly how many times it was

5 deployed the parties do not say. They also do not say whether every use of OC spray has

6 been captured by their declarations and video evidence or whether some uses have been

7 missed or omitted. The Court can only evaluate the evidence presented to it. And it has

8 indeed reviewed every declaration and video evidence submitted. But the Court will not

9 be able to account for every single use of OC spray on those days, to the extent those uses

10 have not been included in the parties’ submissions.

11

Based on the evidence available, the Court has identified one clear violation of the

12 Orders. The Court has also found one use that was clearly compliant with the Orders.

13 The Court refers to uses such as these as a “compliant uses.” The remaining uses are

14 arguable and are therefore not “clear and convincing” violations.

15

(1) Compliant Use

16

On September 23, a protestor hit a retreating officer in the back of the head with a

17 metal baseball bat; the officer deployed OC spray in response. Dkt. # 145-1 Ex. C (9/23

18 Video) at 25:20 to 27:09. This was a compliant use. The video evidence is clear and

19 convincing that, immediately before the attack, an officer riding a bicycle was retreating

20 to an SPD line formation. Id. He fell off his bicycle, and a protestor threw a traffic cone

21 at him and another tried to grab his bicycle. Id. While the officer was distracted, a third

22 protestor approached from behind, stepped forward, and struck the officer with a full

23 swing to the back of the head with the bat. Id.; see also Dkt. # 145-1 at 27. The officer

24 sprayed these three protestors before fleeing. Dkt. # 145-1 Ex. C (9/23 Video) at 25:20 to

25 27:09.3 This use was plainly permitted by the Orders. The officer was “respond[ing] to

26 27 3 Before this incident, the officer deployed OC spray a few other times. Dkt. # 145-1 Ex.
C (9/23 Video) at 25:20 to 25:52. These earlier sprays and their surrounding context are 28 ORDER – 13

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 14 of 27

1 specific acts of violence” against him or, at the very least, “specific imminent threat[s]”

2 of harm. Dkt. # 42 ¶ 1. And given that he had just been assaulted and that he sprayed

3 those attacking him, his actions were necessary, reasonable, proportional, and targeted.

4 Id.

5

During his retreat, the officer also sprayed protestors apparently uninvolved in his

6 attack. Dkt. # 145-1 Ex. C (9/23 Video) at 26:15 to 26:27. After he was hit with the bat

7 and after he sprayed his three attackers, the officer rushed back to the police line

8 formation, dragging his bicycle in one hand and holding his OC cannister in the other.

9 Id. at 26:30 to 26:47. He ran into a few protestors who were standing between him and

10 the police line formation. Id. These protestors did not appear to be involved in his

11 attack, yet the officer briefly sprayed them as he passed by before reaching the police

12 line. Id. 26:15 to 26:27.

13

The Court neither condones nor endorses the use of less lethal weapons on random

14 protestors who pose no risk of imminent physical harm. But given the extreme

15 circumstances presented here, the Court must find this deployment permissible. The

16 officer was under a “specific imminent threat of physical harm” when he sprayed the

17 unrelated protestors. Dkt. # 42 ¶ 1. He had just been attacked by three different

18 protestors and had just been hit in the head with a baseball bat. During that incident,

19 nearby protestors were approaching him. Dkt. # 145-1 Ex. C (9/23 Video) at 25:20 to

20 27:09. Once he fled, the officer was still under a threat—the threat that protestors in the

21 vicinity, even unrelated protestors like the ones here, might also attack. That threat was

22 legitimate. Further, the officer’s brief deployment was not excessive. He sprayed the

23 unrelated protestors only until he reached the police line, and then he stopped. The Court

24 finds that, under these specific circumstances, there was no violation of the Orders.

25

26

27

poorly documented. Therefore, they fall under the “remaining uses” category explained in Section IV.C.ii.3 infra.

28 ORDER – 14

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1

(2) Violation

2

On the other hand, the Court has identified one clear violation of the Orders. On

3 September 7, while officers were pushing protestors away from SPOG, an officer on a

4 bicycle rode up behind several retreating protestors. Dkt. # 145-1 Ex. B (9/7 Video) at

5 26:40 to 26:55. The protestors were moving northbound as instructed. Id. Yet, for no

6 apparent reason, the officer sprayed them in the face with OC spray. Id. This was a plain

7 violation of the Orders. There was no specific imminent threat of physical harm.

8 Because the officer approached from behind, the protestors had their backs facing the

9 officer at the time. Dkt. # 145-1 Ex. B (9/7 Video) at 26:40 to 26:55. At no time was the

10 officer under attack or under threat of attack. Id. Therefore, his use of OC spray was

11 unnecessary, unreasonable, and disproportionate. Dkt. # 42 ¶ 1. The Court further notes

12 that the officer did not account for this use in his use of force report. Dkt. # 146-2 at 281-

13 84. That the entire incident was brief and that the discharge of OC spray was minimal are

14 irrelevant. It was a prohibited and needless action under the Orders.

15

(3) Remaining Uses

16

All other OC spray deployments before this Court are too close to call. The Court

17 refers to these as “remaining uses.” Some deployments are poorly documented; the Court

18 cannot see what SPD was responding to. For example, during the September 7 protest,

19 once SPD charged the crowd of protestors in front of SPOG to arrest the Molotov

20 cocktail suspect, a melee broke out. See, e.g., Dkt. # 145-1 Ex. B (9/7 Video) at 23:23 to

21 25:33. During that melee, several officers sprayed protestors with OC spray. Id. at 24:45

22 to 24:58. Exactly what threat each officer was responding to is unclear, and the parties

23 do not say. Given the dynamic and chaotic nature of the melee, even the best available

24 evidence (body worn video footage of officers inside the melee) is unhelpful and

25 inconclusive. See id. at 49:15 to 49:51, 55:39 to 56:40. Some footage for other

26 deployments share similar deficiencies. Plaintiffs have the burden of showing that the

27 City violated the Orders using evidence that is clear and convincing: for uses such as

28 ORDER – 15

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1 these, where the evidence is unhelpful and inconclusive, that burden is not met.

2

Not all OC spray uses, however, were shrouded by chaos. Some uses are well-

3 documented, and the Court has adequate context to identify and assess both threat and

4 response.

5

Plaintiff Alexandra Chen, for example, was sprayed with OC spray during the

6 September 7 protest. For that incident, the Court has footage from the perspective of

7 both Ms. Chen and the officer that sprayed her. Dkt. # 145-1 Ex. B (9/7 Video) at 23:23

8 to 25:33. Both accounts reveal that, during SPD’s initial charge of the crowd, one officer

9 began establishing a police line formation. Id. The officer repeatedly commanded the

10 protestors to move back. Id. Ms. Chen initially complied. Id. A different protestor,

11 however, ignored the command and approached the police line to film the officers. Id.

12 The officer who yelled at protestors to move back sprayed the encroaching protestor who

13 then retreated and fell. Id. Several other protestors, including Ms. Chen, rushed to that

14 protestor. Id. Although Ms. Chen’s efforts could be considered rendering aide, she was

15 nonetheless disobeying the officer’s command to move back. Id. The officer moved

16 forward and forced the protestors even farther back. Id. Ms. Chen, with both hands on

17 her phone, was filming the officer as she retreated slowly. Id. The officer then sprayed

18 her with OC spray. Id. The officer also sprayed another protestor behind her because

19 that protestor was throwing an object at the officer. Id.

20

Unlike the melee footage, this use of OC spray is clear; the Court can see what the

21 officer was responding to. But what is not clear is whether, all things considered, Ms.

22 Chen posed a “specific imminent threat of physical harm” at the time. Dkt. # 42 ¶ 1. The

23 Court doubts that she did. At no time did Ms. Chen threaten the officer with harm. In

24 fact, Ms. Chen retreated at first, as instructed, and announced to the officer that she was

25 moving backwards. And throughout the whole incident both her hands were visibly

26 gripping her phone.

27

That said, the Court must be mindful of the circumstances: The protestor who

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1 encroached on the officers just disobeyed the officer’s loud and continuous commands to

2 move back. Once that protestor was sprayed and on the ground, Ms. Chen also disobeyed

3 the officer’s command by rushing towards the downed protestor. When Ms. Chen rose,

4 she was slow to comply with the officer’s repeated commands to move back. What is

5 more, the exchange between Ms. Chen and the officer did not occur in a vacuum. Behind

6 the officer was a melee between SPD and protestors—OC spray, fire extinguishers,

7 makeshift shields, projectiles, and all. Behind Ms. Chen was a different protestor

8 throwing an object at the officer. In isolation, the Court doubts that Ms. Chen posed an

9 imminent threat of harm. In context, reasonable minds could disagree when considering

10 the totality of the circumstances at the time of discharge.

11

This incident is like many others, in which it is unclear whether an officer at the

12 time of deployment was facing “a specific imminent threat of physical harm” or

13 responding to “specific acts of violence or destruction of property.” Dkt. # 42 ¶ 1. The

14 examples are plenty. See, e.g., Dkt. # 145-1 Ex. A (8/26 Video) at 1:17:20 to 1:17:35

15 (depicting officer using OC spray on protestor who refused to move back and who

16 grabbed another officer’s baton); id. at 1:12:15 to 1:12:50 (depicting officers using OC

17 spray while trying to arrest a protestor who shined a laser pointer at officers); Dkt. # 119

18 ¶ 3 (8/26 Video) at 20:00 to 20:50 (same but from protestors’ perspective); Dkt. # 145-1

19 Ex. B (9/7 Video) at 30:20 to 30:33 (depicting officers using OC spray on protestors

20 rushing to de-arrest other protestors).

21

In these cases, whether an officer was under a “specific imminent threat of harm”

22 or “responding to a specific act of violence” is unclear. The threat from a protestor who

23 rushes to de-arrest another or the threat from a protestor who refuses to move back

24 despite an officer’s commands is arguable. See Dkt. # 148 ¶ 10 (explaining dangers of

25 de-arrest tactics). Arguable is not the standard. Plaintiff has the burden to prove a

26 violation of the Orders by clear and convincing evidence. For these remaining uses, the

27 Plaintiffs fail to meet that burden.

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1

To be clear, the circumstances above do not automatically authorize use of OC

2 spray. True, they are not clear and convincing violations. But that does not make them

3 compliant uses all the same. The Court’s holding is limited to the facts presented in this

4 motion. The Court provides no bright-line rule for any future uses of OC spray, which, if

5 challenged, must be resolved on a case-by-case basis.

6

iii. Blast Balls

7

Blast balls are a “light and sound diversion device.” Dkt. # 148 ¶ 7. When they

8 explode they emit sound, heat, light, and OC powder. Dkt. # 146-2 at 92, 104. At oral

9 argument, the City represented that the deployment of blast balls is not a perfect science.

10 They are not perfectly round, which limits their precision, and they can bounce

11 unpredictably. See, e.g., Dkt. # 146-1 at 4. They were used on all four days of protests.

12

Of the less lethal weapons, the Court is most concerned about SPD’s use of blast

13 balls, the most indiscriminate of the four. As explained below, SPD has often hurled

14 blast balls into crowds of protestors. In many cases, the accuracy of these baseball-style

15 throws is suspect. And when blast balls explode, they explode in all directions and kick

16 OC powder in the air. Given their indiscriminate nature, blast balls pose a greater

17 collateral danger to peaceful protestors than, for example, the FN 303 launcher. For

18 those reasons, independent from the determinations below, the City should take special

19 care to ensure that any future blast ball uses adhere to the Orders.

20

In any event, based on the available evidence of blast ball usage, the Court has

21 identified one compliant use and several violations of the Orders. As explained in the

22 previous section, the remaining uses are arguable and are therefore not “clear and

23 convincing” violations.

24

(1) Compliant Use

25

On September 7, while SPD pushed protestors north and away from SPOG,

26 throngs of protestors hurried along a sidewalk. Dkt. # 145-1 Ex. B (9/7 Video) at 56:50

27 to 57:55. From deep within the crowd, a protestor launched a Molotov cocktail at

28 ORDER – 18

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 19 of 27

1 officers riding their bicycles in the middle of the street. Id. The Molotov cocktail nearly

2 hit Ms. Chen, who was walking in the street at the time, before shattering and setting the

3 asphalt on fire. Id. In response, SPD deployed several blast balls. Id. at 33:30 to 34:10,

4 56:50 to 57:55. They deployed the blast balls next to the sidewalk, near the protestors but

5 still on the street. Id. As a result, the protestors turned east when they reached an

6 intersection. Id. One of the officers who threw a blast ball claimed that she was ordered

7 by Lieutenant Brooks to use blast balls to “continue pushing the crowd” and to steer them

8 eastward. Dkt. # 146-2 at 43.

9

These blast ball uses were clearly permitted by the Orders.4 They were used in

10 response to a “specific act[] of violence.” Dkt. # 42 ¶ 1. Molotov cocktails pose a grave

11 danger,5 and the use of one towards officers or protestors is no doubt a violent act.

12 Further, the magnitude of harm presented by a Molotov cocktail made blast balls

13 “necessary, reasonable, [and] proportional” to prevent future harm. Id. The officers

14 threw the blast balls in the direction of the protestor who threw the Molotov cocktail,

15 making their deployments also “targeted.” Id.

16

Although the blast balls do not appear to have been deployed specifically at the

17 Molotov cocktail thrower, they were “directed to an open space near the target

18 individual[],” which is permitted under the Orders. Dkt. # 110 ¶ 6(5). SPD threw the

19 blast balls in an open area on the street, next to a crowd of protestors who were primarily

20 on the sidewalk. Based on the evidence, the Molotov cocktail thrower was likely in or

21 near that crowd. Finally, even though less lethal weapons may not usually be used to “re-

22 4 Though these uses may comply with the Orders, the Court makes no determination on

23 whether they comply with SPD’s own training manuals or policies. The parties have not

provided such evidence or argument to the Court. 24 5 “Molotov cocktails can cause significant property damage, substantial injury, or death.

25 They can cause a person’s clothing to burn, and, if one hits a person on their head or shoulder, the smoke is capable of blocking their airways before the fire can be
26 extinguished. They are also inaccurate and, if thrown, may not hit their intended target.

27

Debris from inside the bottle can also escape mid-air, posing additional hazards to those nearby.” Dkt. # 148 ¶ 12

28 ORDER – 19

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 20 of 27

1 route” a protest, SPD may do so when necessary to prevent harm or to respond to specific

2 acts of violence, as was the case here. Id. ¶ 6(1)(a). Thus, this was a clear compliant use.

3

(2) Violations

4

By contrast, the Court has found three clear violations of the Orders. The

5 violations can be divided into two categories: throwing blast balls indiscriminately into a

6 crowd and using blast balls to “create space” without any threat of imminent harm.

7

On at least two separate occasions, officers have thrown blast balls

8 indiscriminately into crowds. During the September 7 protest, on the push north,

9 protestors lined across an intersection. Dkt. # 145-1 Ex. B (9/7 Video) at 27:55 to 28:40.

10 SPD formed their own line several feet opposite the protestors. Id. When one officer

11 rode up on a bicycle and stopped several feet behind the police line, a glass shattered. Id.

12 He asked another officer, “Who threw it?” to which another officer responded, “I don’t

13 know.” Id. A third officer threw a blast ball overhand to the front of the protestor line.

14 Id. The officer who asked who threw the glass dismounted his bicycle and threw a blast

15 ball deep into the crowd of protestors. Id. He threw the blast ball at a different area than

16 the officer who first threw a blast ball. Id. He did not account for this use in his use of

17 force report. Dkt. # 146-2 at 281-84.

18

Weeks later at the September 23 protest, while SPD pushed protestors throughout

19 Capitol Hill, one officer was walking several rows back from the front of the police line.

20 Dkt. # 145-1 Ex. C (9/23 Video) at 49:15 to 50:10. He grabbed a blast ball and then

21 threw it overhand into a crowd of protestors. Id. At the time, he was behind several rows

22 of officers. Id. When he threw the ball, he immediately turned around to retrieve his

23 bicycle and because of that, his body worn video footage does not reveal where the blast

24 ball exploded. Id. He did not account for this use in his use of force report. Dkt. # 146-4

25 at 128-38.

26

Under the Orders, officers may use less lethal weapons in certain circumstances.

27 Dkt. # 42 ¶ 1. But even when those circumstances are met, SPD must not deploy the

28 ORDER – 20

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 21 of 27

1 weapons “indiscriminately into a crowd.” Dkt. # 110 ¶ 6(7). Here, blast ball uses could

2 have been justified as a response to a specific imminent threat. Though the Court does

3 not know for sure because, in both cases, the footage is limited. But even if they were

4 justified, they were plain violations of the command that less lethal weapons should not

5 be deployed indiscriminately into a crowd.

6

On September 7, the officer who threw the blast ball did not know which protestor

7 threw the glass. Yet he threw a blast ball into a crowd of protestors anyway. That throw

8 was not sufficiently targeted to nullify a threat—the source of which the officer did not

9 know. In fact, when he threw the blast ball, he did not throw it at the same spot as the

10 officer who just threw a blast ball right before him, again betraying that he did not know

11 the source of the threat. Thus, this was an indiscriminate deployment into a crowd.

12

On September 23, the officer who threw the blast ball threw it in a crowd of

13 protestors and immediately turned around. This demonstrates a clear lack of care for

14 where the blast ball landed. Any threat of harm or violence that this officer was

15 responding to was not targeted in any meaningful way. This too was an indiscriminate

16 deployment into a crowd.

17

In both cases, the officers stood a great distance from protestors, used overhand

18 throws, and threw blast balls deep into a crowd. These indiscriminate deployments were

19 thus clear violations of the Orders.

20

Indiscriminate deployment aside, SPD has also used blast balls to “create

21 separation,” absent any specific threat of imminent harm. The Court has found two such

22 instances, one on September 22 and another on September 23.

23

As explained above, during a march through Capitol Hill on September 22, Dkt.

24 # 132 ¶¶ 4-9, SPD vehicles trailed protestors from the front and back, Dkt. # 131 ¶ 7.

25 Driving in reverse, the SPD vehicles in front of the protestors trailed the protestors

26 closely. See, e.g., Dkt. # 148 Exs. E & F. The protestors shined lights into the vehicles

27 in front of them. Id.; Dkt. # 148 ¶ 31, Ex. F. Lieutenant John Brooks ordered a bicycle

28 ORDER – 21

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 22 of 27

1 officer to deploy a blast ball when the protestors reached the intersection near the East

2 Precinct. Id. ¶ 33, Ex. E at 0:19 to 0:30. As instructed, the bicycle officer threw a blast

3 ball in the middle of the crowd. Id. Ex. E at 0:36 to 1:30. The protestors then moved

4 away from the SPD vehicle. Id. SPD claims that the strobe lights created an “obvious

5 hazard for the driver” and that the blast ball was used to “create separation between

6 officers and the crowd.” Id. ¶¶ 32, 33.

7

The need for “separation” is not an authorized basis to use less lethal weapons

8 under the Orders. See Dkt. ## 42, 110. Thus, SPD must show that it was under a specific

9 imminent threat of physical harm when it deployed the blast ball. Id. Based on the

10 evidence, it cannot.

11

On September 22, there was no apparent physical threat to officers. At most, the

12 protestors pounded on windows, stood in the way of vehicles, and used “lit cigarettes to

13 damage the hood” of a vehicle. Dkt. # 148 ¶ 31. The City’s claim that protestors’ strobe

14 lights created an “obvious hazard for the driver” is simply not credible. Dkt. # 148 ¶ 33.

15 Though the strobe lights may have been a nuisance, they posed no serious threat to the

16 SPD vehicles or officers. First, only a few of the many protestors had strobe lights, and

17 at times they were several yards away, leaving much of the officers’ field of view

18 unobscured. Second, because the SPD vehicles had their sirens and lights on, pedestrian

19 traffic appeared to yield to them. Given that the vehicles were crawling in reverse at

20 walking speed, any traffic hazard was thus greatly diminished. Under those

21 circumstances, the hazard to the driver was insignificant and did not justify the use of a

22 blast ball. SPD’s claimed threat of imminent harm is unconvincing, and its use of a blast

23 ball was disproportional.

24

(3) Remaining Uses

25

For all other uses, the Court has insufficient evidence. Most officers claim that

26 they used blast balls to stop certain protestors from throwing objects at police. See, e.g.,

27 Dkt. # 146-1 at 4-5 (8/26 protest) (explaining that officer threw blast ball at protestor who

28 ORDER – 22

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 23 of 27

1 threw two items towards officers); Dkt. # 146-2 at 2-3 (9/7 protest) (same but protestors

2 throwing rocks); Dkt. # 146-4 (9/23 protest) (same but protestors throwing glass bottles

3 and “other miscellaneous projectiles”).

4

These officer accounts are generally credible. That many protestors have tried to

5 pelt officers with projectiles is indisputable, and the list of projectiles is long: water

6 bottles, glass bottles, Molotov cocktails, improvised explosive devices, fireworks, rocks,

7 and more. See, e.g., Dkt. # 145-1 Ex. B (9/7 Video) at 24:28 to 24:32; id. at 36:40 to

8 37:05 (rock); id. at 52:20 to 52:55 (improvised explosive device); id. at 56:10 to 56:35

9 (water bottle and improvised explosive device); id. at 56:55 to 57:33 (Molotov cocktail);

10 id. at 1:03:45 to 1:03:55 (firework); Dkt. # 145-1 Ex. C (9/23 Video) at 18:30 to 18:40

11 (glass bottle); id. at 21:25 to 21:35 (glass bottle); id. at 37:30 to 37:40; id. at 1:11:55 to

12 1:12:25 (improvised explosive device); id. at 1:13:00 to 1:13:20 (firework). Based on the

13 video evidence, these do not appear to be isolated incidents.

14

But for most blast ball uses, it is unclear what specific threat a given officer was

15 responding to. See, e.g., Dkt. # 145-1 Ex. B (9/7 Video) at 1:01:30 to 1:03:00 (depicting

16 officers throwing blast balls after rocks were thrown at them); Dkt. # 145-1 Ex. C (9/23

17 Video) at 31:30 to 32:15 (depicting several blast balls after protestors in a crowd threw

18 objects). For example, on August 26, one blast ball was deployed. The officer who

19 threw the blast ball claimed that a protestor threw two “unidentifiable spherical items”

20 towards officers and that, in response, he tried to throw a blast ball at the protestor. Dkt.

21 # 146-1 at 4. Plaintiffs say that the officer’s justification in his use of force report is

22 “plainly inconsistent with video evidence.” Dkt. # 152 at 5. The video evidence,

23 however, is inconclusive. Dkt. # 145-1 Ex. A (8/26 Video) at 41:15 to 42:07. Because

24 the body worn camera was not mounted at eye level and because the protest occurred at

25 night, it is hard to know whether the officer indeed saw a protestor throwing projectiles.

26 This incident is paradigmatic of the remaining blast ball uses where the evidence falls

27 short. See, e.g., Dkt. # 145-1 Ex. C (9/23 Video) at 42:00 to 44:30.

28 ORDER – 23

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 24 of 27

1

Without sufficient evidence, the Court cannot assess the degree of threat that an

2 officer was under when a blast ball was deployed and therefore cannot determine if the

3 use was necessary, reasonable, proportional, and targeted. Again, Plaintiffs have the

4 burden of showing that the City violated the Orders by clear and convincing evidence.

5 For most blast ball uses, the evidence is simply neither clear nor convincing, so Plaintiffs

6 fail to meet their burden.

7

The Court’s previous admonition on OC spray applies equally to blast balls:

8 Although these remaining blast ball uses are not clear violations, they are also not clearly

9 compliant with the Orders. The Court’s holding is limited to the facts presented in this

10 motion. And the Court provides no bright-line rule for any future blast ball uses.

11

In all, Plaintiffs have demonstrated four violations of the Orders by clear and

12 convincing evidence: one OC spray violation and three blast ball violations. All other

13 examples that they have raised do not meet that bar. To that extent, this prong is met.

14

D. Substantial Compliance

15

“‘Substantial compliance’ with [a] court order . . . is not vitiated by ‘a few

16 technical violations’ where every reasonable effort has been made to comply.” In re

17 Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir. 1993)

18 (quoting Vertex Distrib., Inc. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 889 (9th Cir.

19 1982)).

20

For the clear violations above, Plaintiffs have shown that the City violated the

21 Orders beyond substantial compliance. First, the clear violations were not necessarily

22 “few” in number. In total, there were four. And those are only the violations that were

23 presented to this Court. As Plaintiffs argue, many blast balls were used at the September

24 23 protest (at oral argument, the City estimated around 30), yet the City has not provided

25 body worn video footage for many of these deployments. Dkt. # 152 at 5-6. Of course,

26 the Court cannot say for sure how many of these unaccounted-for blast ball uses would

27 have been compliant uses, clear violations, or remaining uses. And the Court will not

28 ORDER – 24

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 25 of 27

1 engage in speculation. But the Court notes that the four clear violations here do not

2 include the unaccounted-for blast ball uses on September 23.

3

Second, the violations were not “technical violations.” The violations above are

4 clear, in part, because they fundamentally defy the Court’s Orders and the purpose behind

5 them. They were not at the boundary, overstepping ever so slightly or “technically.”

6 They violated the substantive terms of the Orders by a clear and convincing margin.

7

Surely, compared to its uses of less lethal weapons earlier this year when this

8 action was first brought, SPD’s uses at these four protests appear to be more restrained.

9 Deployments generally appear to be more targeted and proportional than before. And

10 SPD on its own volition has informed its officers of this Court’s orders on multiple

11 occasions. Under the amended preliminary injunction, the City had to distribute a copy

12 of the order to all SPD officers via email within 24 hours of entry, which it did. Dkt.

13 # 110 ¶ 6(6); Dkt. # 112. But the City has gone beyond that. Before each shift in which

14 officers are expected to provide crowd control management, SPD holds mandatory

15 briefings, reminding officers of the contents of the Orders and their duty to follow them.

16 Dkt. # 148 ¶¶ 3, 14; Dkt. # 147-1 at 20. Further, SPD has not used tear gas of any kind

17 on any of the four protests. Dkt. # 148 ¶ 35.

18

But the Court cannot ignore the clear violations above. Substantial compliance

19 shields a party from a few technical violations when that party has made every reasonable

20 effort to comply with a court order. Again, the violations here are not technical; they are

21 substantive. And the City has not shown that it has made every reasonable effort to

22 comply.

23

Some might say that four clear violations—out of four days of protests and

24 countless uses of less lethal weapons—must surely be insufficient to “vitiate” the City’s

25 otherwise substantial compliance. But this is misguided. The relevant comparison is not

26 between the four clear violations and every single deployment. (For most deployments,

27 the Court lacks sufficient basis to deem them either a compliant use or a violation.) For

28 ORDER – 25

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 26 of 27

1 substantial compliance, the appropriate comparison must be between the times the City

2 was compliant6 and the times it was not compliant. On that score, the Court has found

3 that the City was clearly in compliance with the Orders four times and was clearly not in

4 compliance with the Orders four times. Put that way, the four clear violations are

5 significant and must be given their due weight. For those reasons, this prong is met.

6

E. Good Faith and Reasonable Interpretation

7

In the civil contempt context, contempt need not be willful, and there is no good

8 faith exception. Dual-Deck, 10 F.3d 693 at 695. But a party should not be held in

9 contempt if its actions appear to be “based on a good faith and reasonable interpretation”

10 of a court’s order. Id. (quoting Vertex, 689 F.2d at 889).

11

Like substantial compliance, the clear violations above are clear, in part, because

12 they plainly violate the text of the Orders. No good faith or reasonable interpretation

13 could bring such violations under the Orders’ ambit. For example, no good faith or

14 reasonable interpretation of the phrase “[less lethal weapons] shall not be deployed

15 indiscriminately into a crowd,” Dkt. # 110 ¶ 6(7), could save the City from indiscriminate

16 deployments of blast balls into crowds, see supra Section IV.C.iii.2. The same is true for

17 the remaining violations. Thus, for the clear violations, Plaintiffs have met their burden

18 for this prong.

19 / / /

20 / / /

21 / / /

22 / / /

23 / / /

24 / / /

25

26 6 As explained above, the Court has identified four uses that comply with the Orders: the

27

two uses of the FN 303, the use of OC spray when the officer was hit in the head with a bat, and the use of blast balls to re-route protestors after a Molotov cocktail was thrown.

28 ORDER – 26

Case 2:20-cv-00887-RAJ Document 161 Filed 12/07/20 Page 27 of 27

1

V. CONCLUSION

2

For the reasons stated above, Plaintiff’s (Second) Motion for Order to Show Cause

3 Why City of Seattle Should Not Be Held in Contempt is GRANTED in part and

4 DENIED in part. Dkt. # 114. Based on the submissions of the parties, the Court

5 HOLDS the City in civil contempt for the reasons stated above. Now that the City is

6 held in contempt, the Court must determine the appropriate sanction. To that end,

7 Plaintiffs shall submit a brief and proposed order explaining their proposed sanction.

8 That brief shall not exceed six pages and shall be filed on or before December 11, 2020.

9 Defendants may file a response brief, not to exceed six pages, and a proposed order on or

10 before December 18, 2020.

11

12

DATED this 7th day of December, 2020.

13

14

A

15

16

The Honorable Richard A. Jones United States District Judge

17

18

19

20

21

22

23

24

25

26

27

28 ORDER – 27

 
 Case 2:20-cv-00887-RAJ Document 144 Filed 11/02/20 Page 1 of 14

1 THE HONORABLE RICHARD A. JONES
2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7 BLACK LIVES MATTER SEATTLE-KING
8 COUNTY, ABIE EKENEZAR, SHARON SAKAMOTO, MURACO KYASHNA-
9 TOCHA, ALEXANDER WOLDEAB, NATHALIE GRAHAM, and ALEXANDRA
10 CHEN,

11

Plaintiffs,

12 v.

13 CITY OF SEATTLE,

14

Defendant.

NO. 2:20-cv-00887
THE CITY OF SEATTLE’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE WHY THE CITY OF SEATTLE SHOULD NOT BE HELD IN CONTEMPT
NOTE ON MOTION CALENDAR: November 18, 2020

15

ORAL ARGUMENT REQUESTED

16

17

18 /

19 /

20 /

21

THE CITY OF SEATTLE’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (20-cv-00887) - 1

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Case 2:20-cv-00887-RAJ Document 144 Filed 11/02/20 Page 2 of 14

1

I. INTRODUCTION AND RELIEF REQUESTED

2

This Court entered Orders for preliminary injunction (Dkts. 42 & 110) balancing the First

3 Amendment rights of demonstrators with law enforcement’s duty to protect against property

4 destruction and violence. The balancing elements are inlaid throughout the Court’s Orders, with

5 the recognition that circumstances during events can change rapidly. Plaintiffs’ Motion for

6 Contempt addresses just four demonstrations over a period of months: August 26, September 7,

7 September 22, and September 23, 2020.1 Plaintiffs allege that, by clear and convincing evidence,

8 the City – as a whole – failed to substantially comply with the Court’s Orders. There is no dispute

9 CCWs were used. However, Plaintiffs seem to ignore the Court’s language allowing CCWs under

10 specific circumstances, instead viewing the use of CCWs as de facto proof of contempt.

11

Plaintiffs’ declarations contain snapshots from an individual’s point of view but do not

12 present a complete story of what is a complex series of events.2 SPD commanders and officers

13 had more available information and context about non-peaceful individuals present, what was

14 transpiring beyond each declarant’s immediate field of vision, and why the police employed

15 specific force at a specific time against specific individuals or threats. See Graham v. Connor, 490

16 U.S. 386, 396, 109 S. Ct. 1865 (1989). Not all these events remained – or even began as – protected

17 First Amendment activity, and not all of the participants in these events were peaceful. Officers

18 responded to escalating property destruction, violence, and significant threats to officer and public

19
1 On some of these dates, multiple protests occurred, but claims are raised about only a single protest site.
20 2 This need for a fuller evaluation rather than a single viewpoint was highlighted recently when there were 16,000
complaints to the Office of Police Accountability regarding what appeared from one perspective to be an improper
21 OC spray of a small child, but the complete picture, after thorough investigation, showed incidental exposure from a
deployment by a different officer than the one originally accused.

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1 safety. Even assuming First Amendment protections, the Court’s Orders anticipate that peaceful

2 protesters may at times be incidentally exposed to CCW deployments against non-peaceful

3 individuals or significant safety threats, and these incidental impacts do not amount to

4 contemptuous conduct. Plaintiffs’ evidence does not establish, by clear and convincing evidence,

5 that the City failed to substantially comply with the Courts’ orders regarding use of CCWs. Nor

6 have Plaintiffs established that any individual deployment, even if a violation of the Court’s

7 Orders, rises to the level of contempt by the City.

8

II. STATEMENT OF FACTS

9

The City adopts and incorporates the facts contained in the declarations of Lt. John Brooks,

10 Captain Matt Allen, Assistant Chief Lesley Cordner, and Robert L. Christie, filed herewith.

11

III. AUTHORITIES AND ARGUMENTS

12 A. The Applicable Court Orders

13

Under the Court’s June 17, and August 10, 2020 Orders, the Court enjoined the City from

14 employing chemical irritants or projectiles, except under specific conditions, when peaceful

15 protestors were present. (Dkts. 1, 34, 42 & 110.) The Orders do not prohibit the use of these

16 CCWs when necessary, reasonable, proportional, and targeted to protect against a specific

17 imminent threat of physical harm to themselves or others or in response to destruction of property.

18 (Dkts. 42 & 110.) Additionally, SPD cannot (1) use CCWs to re-route a protest, unless re-routing

19 is necessary to prevent specific imminent threat of physical harm, to respond to specific acts of

20 violence, or to respond to destruction of property; (2) use CCWs without first issuing a warning

21 and allowing individuals a reasonable opportunity to leave, if feasible; or (3) deploy CCWs

THE CITY OF SEATTLE’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (20-cv-00887) - 3

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1 targeted at journalists, legal observers, or medics when they are acting in that capacity, again

2 acknowledging the possible unintentional exposure to allowable uses of CCWs that are not

3 enjoined. (Dkt. 110.) The City is not violating the Court’s Order if blast balls that are otherwise

4 consistent with the order are directed to an open space near a targeted individual rather than at the

5 individual, and the Court also acknowledged that, in the event of an unlawful assembly or riot, it

6 may not be feasible for CCW deployments to be as specifically targeted as would be expected

7 during lawful demonstrations. (Id.)

8 B. Plaintiffs Cannot Establish a Violation of These Orders

9

1. Legal standard for establishing civil contempt by the City.

10

The City incorporates the applicable legal standards for establishing civil contempt set

11 forth in its prior response brief (Dkt. 78), which requires proof that the non-moving party failed to

12 substantially comply with a court order by clear and convincing evidence. Additionally, because

13 the Orders are directed to the City as a municipal entity to protect against potential violations of

14 Plaintiffs’ constitutional rights, the Monell standard of liability must apply when considering

15 whether action of individual officers could constitute the City’s failure to substantially comply

16 with the Orders. A municipality cannot be held liable solely because it employs a tortfeasor.

17 Monell v. N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 692, 98 S. Ct. 2018 (1978). Instead, plaintiffs

18 must establish municipal liability by demonstrating that alleged unconstitutional action was

19 proximately caused by an unconstitutional custom or policy; the result of a deliberate indifference

20 to a known need to train; or ratified by the City’s policymakers. Clouthier v. County of Contra

21 Costa, 591 F.3d 1232, 1249 (9th Cir. 2010); Hopper v. City of Pasco, 241 F.3d 1067, 1083 (9th

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1 Cir. 2001); see also Vertex Distrib. v. Falcon Foam Plastics, Inc., 689 F.2d 885, 891-92 (9th Cir.

2 1982) (“If a violating party has taken ‘all reasonable steps’ to comply with the court order,

3 technical or inadvertent violations of the order will not support a finding of civil contempt.”);

4 Campbell v. City of Oakland, No. C 11-5498 RS, 2011 WL 5576921, *3-4 (N.D. Cal. Nov. 16,

5 2011) (citing Lewis v. Casey, 518 U.S. 343, 360, 116 S. Ct. 2174 (1996)) (“Sporadic or isolated

6 violations of individual protesters’ rights are insufficient to support broad injunctive relief against

7 an entire agency.”). “[S]ubstantial compliance and reasonable efforts are interrelated, and

8 reasonable efforts are in fact a necessary component of substantial compliance.” Anti-Police

9 Terror Project v. City of Oakland, No. 20-CV-03866-JCS, 2020 WL 6381358 (N.D. Cal. Oct. 31,

10 2020) (internal citations and quotations omitted) (Attached as Exhibit 1).

11

The City implemented the terms of the Orders for crowd control management (Dkt. 112),

12 and there is no evidence, or even argument, that City officials are ratifying actions in violation of

13 the Orders. To the contrary, the City utilizes a robust review process to identify police violations,

14 the results of which are shared with the public.3 Plaintiffs must establish by clear and convincing

15 evidence that the pattern and practice of individual CCW deployments shows that the City itself is

16 proximately causing constitutional violations in defiance of the Court’s Orders. Plaintiffs do not,

17 and cannot, make this showing.

18

2. The Court’s Orders Only Apply in the Context of First Amendment Protected

Demonstration Activity.

19

The Orders were crafted to allow for the continued exercise of First Amendment rights by

20

21 3 See, e.g., https://www.seattletimes.com/seattle-news/seattle-officer-who-repeatedly-punched-man-during-protest-
arrest-used-excessive-force-inves2tigation-finds/.

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1 peaceful protesters while maintaining public safety. The Orders specifically do not apply to those

2 engaged in criminal conduct – and allow for the use of CCWs to address specific criminal conduct

3 that rises to violence or property destruction. Courts established several clear lines over the years

4 with respect to demonstrations that parallel some aspects of the four in question. There is no First

5 Amendment right to block traffic or otherwise imperil public safety. See, e.g., Frye v. Police Dep't

6 of Kansas City, Missouri, 260 F. Supp. 2d 796, 799 (W.D. Mo. 2003), aff'd sub nom Frye v. Kansas

7 City Missouri Police Dep't, 375 F.3d 785 (8th Cir. 2004). See also, https://www.aclu.org/know-

8 your-rights/protesters-rights/#im-organizing-a-protest. “[W]here demonstrations turn violent,

9 they lose their protected quality as expression under the First Amendment.” Grayned v. City of

10 Rockford, 408 U.S. 104, 116, 92 S. Ct. 2294 (1972). There is a point when public safety requires,

11 and the law allows, for an end to the protest.4 See also SMC 12A.12.020. Restrictions on the use

12 of crowd control tools in the Order applies to peaceful protesters, not those engaged in unlawful

13 activities.

14

3. The City has unequivocally and consistently apprised its police officers of the

terms of the Courts’ Orders and the requirement that they comply with them.

15

There are often multiple demonstrations every day in Seattle. (Christie Decl. Ex. L, ¶4.)

16

For most of these events, it is determined that police resources will likely not require deployment,

17

and these events occur without SPD’s involvement. (Id. at ¶6.) Of those events needing police

18

19
4 Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1993), cited in the Court’s June 12 Order, cannot and should not be read

20

as a requirement for police to ignore safety concerns and enter a violent crowd to try and arrest those individuals who are committing unlawful acts; that was a case about prior restraint of free speech, which is not an allegation here.

Instead, that case provides support for the approach being utilized by SPD, namely that knowledge of prior events
21 (and participants) can be used to evaluate the safety of current demonstrations and be a factor determining when to

declare an unlawful assembly, along with the events of the current demonstration. Id., at 1372.

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1 resources to ensure public safety, crowd management tools are not always necessary and are thus

2 not used at most events. (Id. at ¶7.)

3

Nonetheless, since the inception of the Court’s TRO and later converted preliminary

4 injunction, SPD repeatedly instructs officers of the parameters of the Orders. Relevant to the time

5 frame of this motion, on August 11, 2020, Detective Puente sent an email to all SPD officers

6 attaching the Court’s June 17, 2020 and August 10, 2020 Orders, copying the language from each

7 of those orders into the body of the email, and indicated in bold that “[a]ll SPD members are

8 required to read each of these orders and be familiar with their terms.” (Dkt. 112). Since

9 that time, SPD has repeatedly instructed its officers on the provisions contained within those orders

10 at the briefings provided before each demonstration event to all participating SPD officers.

11 (Updated Brooks Decl., ¶3.) As part of these briefings, command staff also shares with the group

12 the anticipated schedule for the day, intelligence about potential threats, and the Commander’s

13 intent and objectives, which emphasize the need to facilitate free speech and assembly whenever

14 possible, while preserving order and protecting persons and property. (Id. Ex. A and B; Allen

15 Decl. Ex A and B.) This standard protocol was followed on August 26, September 7, September

16 22, and September 23. (Updated Brooks Decl., ¶3.; Allen Decl. ¶8.) The City and its Police

17 Commanders do not encourage or incite officers to violate the Orders, nor have they failed to

18 substantially comply with the Orders in good faith; to the contrary, the City continually instructs

19 and orders its officers to act in full compliance with the directives from this Court.

20

4. SPD officers are subject to discipline if they are found to violate the Orders.

21

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1

Not only did the City repeatedly instruct its officers to comply with this Court’s orders,

2 officers are subject to comprehensive scrutiny and discipline if they violate the Orders. (See

3 Christie Decl. Ex J ¶¶ 13-24, Ex. L ¶ 7.)

4 5. Police officers deployed CCWs in compliance with the Court’s Orders.5

5

a. Targeted CCW deployments at the August 26, 2020 demonstration

complied with the Courts’ Orders.

6

There is no dispute that demonstrators parked cars in the road, blocking traffic exiting the

7

SR 520 off-ramp and preventing emergency vehicles from turning westbound out of the Seattle

8

Fire Station on August 26, creating major safety concerns, including impeding emergency vehicles

9

responding to calls for service, and protesters were ordered to move cars and disperse. (Updated

10

Brooks Decl., ¶¶16-19; Ivanov BWV 2020-08-26_2129.) As one officer moved forward with the

11

line to clear the roadway, he deployed bursts of OC in targeted response to individuals shoving

12

officers. (Cordner Decl., Ex. A(3); Waldorf BWV 08-26-2020_2150.) One demonstrator shined

13

a laser pointer into officers’ eyes, as shown in Mr. Salisbury’s video and also from body-worn

14

video. (Dkt. 119, ¶3 at 19:08-19:13 and 19:29-19:33; Bourdon BWV 08-26-2020_2217.) As

15

officers effected the arrest, people with shields pushed back against line officers. (Cordner Decl.,

16

Ex. A(7).) One officer deployed a burst of OC spray at two individuals who were pushing forward

17

with shields. (Id; McKee BWV 2020-08-26_2217; Todorov BWV 08-26-2020_2217.) Mr.

18

19
5 If the Court disagrees that Plaintiffs are required to prove Monell liability in order to establish contempt on the part

20

of the City, and is instead inclined to hold the City in contempt based on one or more independent CCW deployments, the City requests that this Court identify those individual deployments and allow the City additional time to fully

identify all of the information relevant to each one so that the Court can examine the totality of evidence available for
21 each deployment. Finding contempt against the City for any one or more deployments at this individual level without

all of the facts violates the Monell standard and the City’s right to due process. (See Dkt. 78, pp. 4-5.)

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1 Salisbury’s video also shows an individual in a helmet and gas mask trying to de-arrest the laser-

2 pointer suspect by grabbing him and pulling him away from officers. (Dkt. #119, ¶3 at 20:15.)

3

Because the demonstrators became violent, Lt. Brooks issued a dispersal order, notifying

4 demonstrators they could be subject to arrest if they remained. (Updated Brooks Decl., ¶18;

5 Bourdon BWV 08-26-2020_2217.) One officer deployed OC spray as demonstrators engaged in

6 physical resistance with officers moving the crowd up Harvard. (Cordner Decl., Ex. A(5);

7 Bourdon BWV 08-26-2020_2217.) The blast ball deployment was a targeted effort to stop a

8 person from throwing objects at police. (Cordner Decl., Ex. A(1); Updated Brooks Decl., ¶¶19-

9 20, Ex. D; Page BWV 08-26-2020_2226.) The blast ball ricocheted, detonating at the officer’s

10 feet. (Id.) All uses of CCW were in targeted deployment.

11

b. The CCW deployments during September 7, 2020 demonstration were

necessary to respond to criminal activity and disperse a violent crowd.

12

Plaintiffs contend that SPD engaged with the crowd on September 7 “with no provocation

13

other than us having shown up at SPOG headquarters.” (Dkt. 130, ¶7.) This is not accurate.

14

Simply put, declarants’ observations were made without knowing the threats that some members

15

of the crowd posed to the police and others, because police had information which individual

16

declarants did not. (Dkts. 116-118; 120-130). SPD did not engage with the crowd until

17

approximately 6:20 p.m. (Updated Brooks Decl., ¶23.) At that point, members of the crowd,

18

including Plaintiff Alexandra Chen, began placing and throwing garbage and other combustible

19

material at and over the fence near the SPOG office. (Id.; Dkt. 130, ¶¶4-5; Christie Decl., Exs. B

20

and D; Updated Brooks Decl., ¶23.) SPD received multiple reports that a member of the crowd

21

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1 was in possession of and readying a Molotov cocktail. (Updated Brooks Decl., ¶23; see generally,

2 Cordner Decl., ¶10.) Officers also reported smelling gasoline. (Updated Brooks Decl., ¶23;

3 Cordner Decl., Exs. B(4), B(10), B(34).)

4

SPD moved in to arrest the suspect with the Molotov cocktail, and members of the crowd

5 attempted to prevent the arrest, using de-arrest tactics and improvised shields. (Compare Dkt. 130

6 at ¶7 with Updated Brooks Decl., ¶25; Cordner Decl., Exs. B(3), B(5), B(8), B(10), B(11), B(12),

7 B(19), B(22), B(25), B(26), B(28), B(39); Christie Decl., Exs. B, D.) One team of officers moved

8 in for the arrest, and another team moved in to support and move the crowd back. (see e.g. Cordner

9 Decl., Ex. B(39); Christie Decl., Exs. B, D.) The plume of smoke complained of by declarants

10 was caused by a fire extinguisher deployed by a member of the crowd attempting to shield and de-

11 arrest the suspect. (Compare Dkt. 130, ¶7; Dkt. 116 ¶43; Dkt. 126 at ¶8; Dkt. 128 at ¶11; Dkt. 129

12 ¶6 to Dkt. 120, ¶10, Christie Decl., Exs. B, D.) One officer was struck in the face with a pipe.

13 (Updated Brooks Decl., ¶25; Cordner Decl., Ex. B(19).) Other members of the crowd assaulted

14 officers, throwing projectiles and explosives. (Id.; Cordner Decl., Exs. B(1)-(2), B(4)-(8), B(10),

15 B(13)-(14); B(16)-(19); B(22)-(23); B(25)-(27), B(38)-(39); Christie Decl., Exs. B, D.)

16

Officers gave repeated clear commands for the crowd to “move back” to create space for

17 the officers attempting to effect the arrest of the suspect. (Id., Christie Decl., Exs. B, D; Dkt. 130,

18 ¶8, video link at 0:00-:50.) Ms. Chen can be seen on Sgt. Didier’s BWV, walking very slowly

19 backwards. (Christie Decl., Exs. B, D.) Though there are repeated commands to move back, Ms.

20 Chen eventually slows, walking parallel to the SPD line while continuing to film officers. (Christie

21 Decl., Exs. B, D.) Though officers continued to command the crowd to move back, one

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1 demonstrator encroached on the officers’ line, ignoring commands to move back. (Christie Decl.,

2 Exs. B, D.) Sgt. Didier deployed a targeted burst of OC spray at the individual. (Id.; Cordner

3 Decl., Ex. B(39).) Ms. Chen and others swarmed the individual and failed to comply with repeated

4 commands to move back. (Christie Decl., Exs. B, D; Dkt. 130, ¶8, video link at 0:00-:50.) Officer

5 Didier deployed a single targeted burst of OC spray at Ms. Chen and another at a suspect in the

6 same group, who had thrown multiple objects at officers, including a stick that struck Sgt. Didier

7 in the face. (Christie Decl., Exs. B, D; Dkt. 130, ¶8, video link at 0:00-:50.)

8

Captain Allen issued continuous dispersal orders, notifying demonstrators they could be

9 subject to arrest and instructing them to move north. (Updated Brooks Decl., ¶26; Christie Decl.,

10 Exs. B, D; see generally, Cordner Decl., ¶10.) Yet, the crowd continued to engage with officers,

11 throwing projectiles including IEDs, smoke grenades, rocks, and Molotov cocktails. (Updated

12 Brooks Decl., ¶¶22-28; see also Cordner Decl., ¶10.) Officers used targeted deployments of OC

13 spray and blast balls at specific threats to keep the crowd moving thereby reducing the threat of

14 ongoing assaults against officers. (Updated Brooks Decl., ¶¶26-27.) SWAT Officer Bonet

15 deployed less lethal rounds at a suspect who threw a traffic cone at an officer and prepared to throw

16 another. (Compare Cordner Decl. Ex. B(2); Christie Decl., Exs. B, D; to Dkt. 120, ¶16.) After

17 the event, SPD recovered 12 Molotov cocktails prepared for deployment in addition to other

18 unused explosive devices. (Updated Brooks Decl., ¶28; Christie Decl., ¶11.) Nine officers were

19 injured, and 23 suspects were arrested. (Updated Brooks Decl., ¶28; Christie Decl., ¶11.)

20

c. The Single CCWs deployed during the September 22, 2020 Demonstration

was consistent with the Courts’ Orders.

21

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1

There was a single, appropriately targeted blast ball deployment on September 22. The

2 events leading up the deployment are detailed at length in Lt. Brooks’ updated declaration, with

3 video. (See also Cordner Decl., Ex. C(1).)

4

d. CCW deployments during September 23, 2020 demonstration were

necessary to respond to criminal activity and disperse a violent crowd.

5

On September 23, SPD responded to several events and subsequent acts of property

6

destruction and violence, detailed in Captain Allen’s previous declaration. (Christie Decl., Ex. K.)

7

Captain Allen began issuing dispersal orders at approximately 8:45 p.m., which were clearly and

8

continually issued throughout the night. (Id., ¶¶14-40.) SPD continued to move the crowd to

9

prevent ongoing assaults on officers with projectiles and to prevent additional property destruction.

10

(Id., ¶¶14-17.) At about 10:44 p.m., someone threw a firework into the East Precinct, detonating

11

near officers. (Id., ¶23; Hay BWV 2020-09-23_2244.) SPD moved in to arrest the person who

12

threw the firework while members of the crowd continued assaulting officers with one individual

13

striking an officer in the head with a metal baseball bat. (Id., ¶¶25-28; Cordner Decl., Exs. D(1)-

14

(19).) By 11:12 p.m., SPD had information that individuals were preparing Molotov Cocktails

15

and setting up fortifications. (Allen Decl., ¶¶25-28.) Shortly afterwards, someone started a fire in

16

the street. (Id., ¶29.) Captain Allen ordered the officers to move the crowd to put out the fire,

17

safeguard property, and prevent further unlawful and dangerous behavior. (Id.)

18

This was a dynamic crowd with some engaging in violent and destructive behavior that

19

created a serious safety threat to everyone. Demonstrators were continually throwing projectiles

20

at police, including bottles, rocks, and mortars; some even brought their own chemical agents to

21

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1 deploy. Multiple fires were set that the night, some inside of dumpsters with added chemical

2 agents and smoke pointed toward police. Despite continuous orders, the crowd refused to disperse.

3

Many of the declarations submitted by Plaintiffs document perceptions that the police were

4 using pepper spray and deploying blast balls for no apparent reason, but they have no foundation

5 to know (1) whether the chemical irritant they complained of was deployed by the police or

6 members of crowd; (2) whether loud bangs and associated shrapnel contact was caused by blast

7 ball deployments or fireworks ignited by members of the crowd; and/or (3) whether the CCW

8 deployments they actually observed were indiscriminate uses of force in violation of the Courts’

9 orders. Captain Allen’s Declaration, the draft Blue Team reports from this date, the video evidence

10 submitted by both sides, and the Information filed against the individual who hit an officer in the

11 head with a baseball bat, all provide a more complete and complex picture of the events at issue.

12

6. The Court should not address police conduct not governed by its June 17, 2020

and August 10, 2020 Orders.

13

Plaintiffs complain about perceptions of police officer demeanor, arrests, crowd movement

14

tactics, the decision not to allow cars to block the road, and music played by a private entity, SPOG.

15

Respectfully, this type of conduct is not governed by this Court’s Orders, nor is this the appropriate

16

forum to determine whether any specific officer engaged in an excessive use of force under the

17

Fourth Amendment or conduct that may trigger criminal or civil liability.

18

IV. CONCLUSION

19

This Court should deny Plaintiffs’ motion for contempt as Plaintiffs failed to show by clear

20

and convincing evidence that the City is in substantial compliance with this Court’s Orders.

21

THE CITY OF SEATTLE’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (20-cv-00887) - 13

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1

Respectfully submitted this 2nd day of November, 2020.

2

CHRISTIE LAW GROUP, PLLC

3

By /s/ Robert L. Christie

ROBERT L. CHRISTIE, WSBA #10895

4

THOMAS P. MILLER, WSBA #34473

ANN E. TRIVETT, WSBA #39228

5

MEGAN M. COLUCCIO, WSBA #44178

Attorneys for Defendant City of Seattle

6

2100 Westlake Avenue N., Suite 206

Seattle, WA 98109

7

Phone: 206-957-9669

Email: bob@christielawgroup.com

8

tom@christielawgroup.com

ann@christielawgroup.com

9

megan@christielawgroup.com

10

PETER S. HOLMES

Seattle City Attorney

11

12

By /s/ Ghazal Sharifi

GHAZAL SHARIFI, WSBA# 47750

13

CAROLYN U. BOIES, WSBA #40395

Attorneys for Defendant City of Seattle

14

Assistant City Attorneys

Seattle City Attorney’s Office

15

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

16

Phone: 206-684-8200

E-mail: Ghazal.Sharifi@seattle.gov

17

Carolyn.Boies@seattle.gov

18

19

20

21

THE CITY OF SEATTLE’S SUPPLEMENTAL RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (20-cv-00887) - 14

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1

THE HONORABLE RICHARD A. JONES

2

3

4

5

6

UNITED STATES DISTRICT COURT

7

FOR THE WESTERN DISTRICT OF WASHINGTON

SEATTLE 8

BLACK LIVES MATTER SEATTLE

No. 2:20-CV-00887-RAJ

9

KING COUNTY, ABIE EKENEZAR,

SHARON SAKAMOTO, MURACO

MOTION FOR ORDER TO SHOW

10

KYASHNA-TOCHA, ALEXANDER

CAUSE WHY CITY OF SEATTLE

WOLDEAB, NATHALIE GRAHAM,

SHOULD NOT BE HELD IN

11

AND ALEXANDRA CHEN,

CONTEMPT

12

Plaintiffs,

13

v.

14

CITY OF SEATTLE,

NOTE ON MOTION CALENDAR: Oct. 5, 2020
Oral Argument Requested

15

Defendant.

16

17

18

19

20

21

22

23
MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ)

Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 2 of 16

1

TABLE OF CONTENTS

2

Page

3 I. II.
4

INTRODUCTION ............................................................................................................. 1 STATEMENT OF FACTS ................................................................................................ 1 A. August 26, 2020 Vigil Outside of Washington State Patrol .................................. 1

5

B. September 7, 2020, Labor Day SPOG March........................................................ 4

C. September 22, 2020 ............................................................................................... 6 6
D. September 23, 2020 ............................................................................................... 7 7 III. ARGUMENT..................................................................................................................... 8

8

A. Legal Standard for Contempt................................................................................. 8

B. The City’s Use of Less-Lethal Weapons Against Peaceful Protesters

9

Violates the Clarified PI......................................................................................... 9

10

1. Indiscriminate Use of Explosives, Projectiles, and Canisters of Gas Against Protesters ...................................................................................... 9

11

2. Indiscriminate and Excessive Handheld Pepper Spray............................ 10

3. Use of Less-Lethal Weapons to Re-Route or Move Protesters ............... 10 12
4. Use of Less-Lethal Weapons Without Warning or Reasonable

13

Opportunity to Disperse and Interference with Attempts to

Disperse.................................................................................................... 11

14

C. The City Has Failed to Take All Reasonable Steps to Comply with the

Court’s Orders...................................................................................................... 11 15
IV. CONCLUSION................................................................................................................ 12

16

17

18

19

20

21

22

23
MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ) – i

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1

I. INTRODUCTION

2

The City of Seattle is openly and willfully defying this Court’s orders. On at least four

3 separate dates since this Court’s entry of the Clarified Preliminary Injunction on August 10,

4 2020, the City of Seattle has used less lethal weapons against peaceful protesters in a manner that

5 is indiscriminate, disproportionate, and unnecessary to prevent specific injury or illegal activity,

6 in violation of this Court’s orders. Specifically, SPD has repeatedly launched explosives into

7 crowds of protesters, drenched protesters with pepper spray excessively and indiscriminately,

8 used less-lethal weapons to re-route protests or force protesters to move faster, and used less-

9 lethal weapons without ordering protesters to disperse or giving them a meaningful opportunity

10 to do so. Many of these violations have resulted in injuries to peaceful protesters. Plaintiffs

11 repeatedly have brought these violations to the City’s attention, but the City has failed to take

12 effective action to prevent SPD from continuing to do take these actions. Indeed, to date, the City

13 maintains that SPD’s conduct is consistent with the Orders, even as the evidence clearly

14 disproves the City’s justifications.1

15

The Court’s prompt action therefore is necessary. The City should be held in contempt.

16

II. STATEMENT OF FACTS

17 A. August 26, 2020 Vigil Outside of Washington State Patrol

18

On August 26, protesters gathered near the Washington State Patrol (WSP) headquarters

19 for a vigil in memory of Summer Taylor, who was murdered during a protest on I-5 when a

20 driver drove his car into two protesters. Vigil participants sat around a circle of tea lights and

21 flowers on the side of the road sharing memories, feelings, and observing a moment of silence.

22

1 Counsel conferred about this motion on September 29, 2020. See Declaration of David A. Perez (Perez

Decl.), ¶ 3. Counsel for the City provided information in response to allegations regarding August 26 and September

23 7 events, see id. at Ex. B, D, and committed to providing information regarding September 22 and 23 this week, see

id., at ¶ 8. Plaintiffs agreed to extend the City’s time to respond to 48 hours from the time of this filing.

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1 Wensnahan Decl. ¶ 4; Servian Decl. ¶ 5. To protect the vigil from traffic coming off I-5, a Car

2 Brigade blocked one lane of the roadway. Wensnahan Decl. ¶ 7; Servian Decl. ¶ 5; Flynn Decl. 3 ¶ 4.2 No one damaged property or engaged in violent behavior; the vigil was peaceful. Servian

4 Decl. ¶¶ 14, 19; Scaturo ¶¶ 10, 18; Wensnahan ¶ 4; Flynn Decl. ¶ 5.

5

SPD officers abruptly moved into formation, erecting police lines blocking the street.

6 Wensnahan Decl. ¶¶ 6-7; Scaturo Decl. ¶ 7; Servian Decl. ¶ 5; Flynn Decl. ¶ 5. SPD announced

7 that it had called tow trucks to remove the Car Brigade. Scaturo Decl. ¶ 7. Without warning, SPD

8 officers advanced on the peaceful crowd, chanting “move back” and pushing the crowd with

9 batons. Wensnahan Decl. ¶¶ 10, 12; Scaturo Decl. ¶¶ 10-12; Servian Decl. ¶ 8; Flynn Decl. ¶ 5.

10 Police smashed the window of one of the Car Brigade cars and arrested the driver. Wensnahan

11 ¶ 13; Scaturo ¶ 9. As police broke up the vigil, an SPD officer sprayed a stream of pepper spray

12 into the air, forming a cloud of gas over the protesters. Servian Decl. ¶ 9.

13

SPD pushed protesters to and around the freeway ramp, creating a human bottleneck and

14 causing people to trip over one another. Wensnahan Decl. ¶¶ 17, 18. SPD unnecessarily shot

15 pepper spray at people who could not retreat fast enough and roughly pinned and arrested two

16 protesters. Wensnahan Decl. ¶¶ 19, 20; Scaturo Decl. ¶ 13; Servian Decl. ¶ 13.

17

SPD ordered vigil participants to disperse only after using less-lethal weapons against the

18 group. Wensnahan Decl. ¶ 21; Scaturo Decl. ¶¶ 11-14; Servian Decl. ¶¶ 9, 15; Flynn Decl. ¶ 8.

19

An SPD officer threw a blast ball at a retreating protester’s shield from four feet away,

20 causing it to bounce back at the police line and explode. Wensnahan Decl. ¶ 23; Scaturo Decl.

21

22

2 Two other protests took place on August 26. The first shut down the Ballard Bridge briefly in honor of

George Floyd. The second was a march in Capitol Hill, at which SPD arrested at least two individuals for property

23 damage. See SPD Blotter, Aug. 25, 2020 1:31 a.m., available at https://spdblotter.seattle.gov/2020/08/25/one-

arrested-after-multiple-fires-are-set-to-buildings-during-protests/.

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1 ¶ 15. Jasper Wensnahan, a teacher, began coughing from the OC gas in the blast ball, and her

2 eyes burned. Wensnahan Decl. ¶ 24. SPD lobbed another explosive overhand into the middle of

3 the crowd protesters who were already retreating. Servian Decl. ¶ 10.

4

SPD then began to march protesters at “double time” speed, forcing protesters to run, and

5 continued to use OC spray on people who fell. Wensnahan Decl. ¶¶ 27; Scaturo Decl. ¶ 15;

6 Salisbury Decl. ¶ 3 (https://www.youtube.com/watch?v=zkQZhlmKQbI at 28:08). SPD chased

7 retreating protesters for about 15 minutes, verballing mocking them as exhausted protesters

8 struggled to keep up and to breathe. Wensnahan Decl. ¶¶ 28-39; Servian Decl. ¶ 17; Scaturo

9 Decl. ¶¶ 16-17. SPD arrested protesters who could not move quickly enough and released more

10 gas and pepper spray. Servian Decl. ¶¶ 11-13, 18. Josh Servian, a disabled veteran with

11 disabilities from his military service, was one of many protesters who could not keep up with the

12 pace SPD demanded. Id. ¶¶ 2, 17. SPD’s tactics at the vigil hurt many protesters who did not

13 pose a threat. Wensnahan Decl. ¶¶ 26, 30, 37-38; Servian Decl. ¶ 13-14; Salisbury Decl. ¶ 3

14 (https://www.youtube.com/watch?v=zkQZhlmKQbI at 20:10-20, 22:45, 29:30-48).

15

In a letter to Plaintiffs, the City cited property damage at a separate Capitol Hill protest

16 event as justification for the use of less-lethal weapons at the vigil.3 The City also claimed that

17 protesters and their cars obstructed several blocks and access to the entryway of the Washington 18 State Patrol building and a fire station.4 But in fact SPD blocked the entryways to WSP and the

19 fire station, not protesters. Wensnahan Decl. ¶ 7; Servian Decl. ¶ 5. Nor had any protesters

20 damaged any property at the vigil. Wensnahan Decl. ¶¶ 21-22. SPD’s force was improper.

21

22
3 See Perez Decl., Ex. B (referencing “property damage by some in a group near Volunteer Park, which
23 resulted in an arrest and the discovery of Molotov cocktails”).
4 Id. & n.1.
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1 B. September 7, 2020, Labor Day SPOG March

2

On Labor Day, a few hundred protesters marched peacefully to the Seattle Police

3 Officers’ Guild (SPOG) building in SODO. No property was damaged on the way to SPOG and

4 protesters were peaceful as they approached the SPOG building, writing messages in chalk.

5 Smith Decl. ¶ 5; Wensnahan Decl. ¶¶ 40-41; Martin Decl. ¶¶ 26-27; Scaturo Decl. ¶ 21; Schade

6 Decl. ¶ 3; Servian Decl. ¶ 20; Robinson Decl. ¶¶ 8-9; Schade Decl. ¶ 3; Haughie Decl. ¶¶ 4, 9;

7 Eby Decl. ¶ 4; Swanson Decl. ¶¶ 10, 18; Krein ¶¶ 16-18.

8

Nonetheless, SPD preemptively armed themselves and mobilized approximately 100

9 police officers to meet the peaceful protest with force. Wensnahan Decl. ¶ 42. Moments after

10 protesters arrived outside SPOG, SPD piped loud country music from the SPOG building as

11 dozens of SPD bike officers, covertly positioned in a nearby alley, rode into the protest, hitting

12 protesters with their bikes. Wensnahan Decl. ¶ 43; Martin Decl. ¶¶ 30-31, 33; Scaturo Decl.

13 ¶¶ 22-23; Schade Decl. ¶ 4; Servian Decl. ¶¶ 21, 22; Haughie Decl. ¶ 6; Eby Decl. ¶ 6; Swanson

14 Decl. ¶¶ 5-7; Smith Decl. ¶¶ 6-8; Krein ¶¶ 19-20. As they rushed into the crowd, SPD tossed

15 weapons containing OC gas indiscriminately into the crowd. Martin Decl. ¶ 32; Karhu Decl.

16 ¶¶ 11-12; Scaturo Decl. ¶ 25; Servian Decl. ¶ 23; Schade Decl. ¶ 5; Haughie Decl. ¶¶ 7-8; Eby

17 Decl. ¶ 7; Swanson Decl. ¶¶ 8-9; Smith Decl. ¶ 9; Krein ¶ 20. “We came with sidewalk chalk,

18 and they gassed us immediately.” Martin Decl. ¶ 33.

19

Witness accounts could have been pulled directly from accounts of June protests: SPD

20 immediately began ripping away protesters’ umbrellas and shields, pepper spraying protesters,

21 and launching explosives indiscriminately into the crowd. See Eby Decl. ¶ 8 (SPD “almost

22 immediately began coating protesters’ umbrellas and shields in pepper spray and then snatching

23 away the umbrellas and shields and spraying the now-defenseless front line of protesters with

MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ) – 4

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1 pepper spray”); see also Wensnahan Decl. ¶¶ 43-45, 47-49; Schade Decl. ¶ 5; Robinson Decl.

2 ¶ 6; Martin Decl. ¶¶ 35-37; Scaturo Decl. ¶ 23; Haughie Decl. ¶ 11; Swanson Decl. ¶¶ 8; Smith

3 Decl. ¶ 9; Krein ¶ 20. This attack injured peaceful protesters and observers, including senior

4 citizens wearing sandals and a five-year-old child who got OC spray in his eyes. Robinson Decl.

5 ¶ 6; Wensnahan Decl. ¶ 45; Servian Decl. ¶ 24; Krein Decl. ¶ 22; Schade Decl. ¶ 7; Haughie

6 Decl. ¶ 11; Eby Decl. ¶¶ 7-8; Smith Decl. ¶¶ 9, 11. SPD did not give a dispersal warning before

7 this attack. Wensnahan Decl. ¶ 59; Robinson Decl. ¶¶ 6, 11; Scaturo Decl. ¶ 23; Servian Decl. ¶

8 24; Schade Decl. ¶ 17; Smith Decl. ¶ 6; Krein ¶¶ 22-24.

9

SPD officers indiscriminately and excessively pepper sprayed protesters as they pushed

10 them away from SPOG and funneled them onto Fourth Ave., and indiscriminately shot protesters 11 with projectiles, blast balls, and pepper spray along Fourth Ave.5 Plaintiff Alexandra Chen was

12 one of the many protesters maced at the Labor Day SPOG march. While she was protesting

13 peacefully and complying with orders by SPD officers to “move back,” an SPD officer maced

14 her directly in the face. Chen Decl. ¶ 9. Many others were pepper sprayed in the face retreating, 15 including declarants Madison Lynn Haughie, Melissa Schade, and Casey Martin.6 SPD ripped

16 the goggles off of at least one protester before macing them. Wensnahan Decl. ¶ 47.

17

Police herded and forcibly cleared protesters from the area, chasing them at biking speed

18 on a more than 2-mile forced march, all while preventing protesters from dispersing.7 SPD

19 arrested protesters randomly, including those who fell behind or tried to leave SPD’s forced

20

21

5 Wensnahan Decl. ¶¶ 46-49; Martin Decl. ¶¶ 39-42; Scaturo Decl. ¶¶ 23-28; Schade Decl. ¶¶ 5, 12-16, 18;

Servian Decl. ¶¶ 25-30; Wommack Decl. ¶ 7; Eby Decl. ¶¶ 10-12; Swanson Decl. ¶¶ 11-14; Smith Decl. ¶ 13; Krein

22

¶ 24. 6 Haughie Decl. ¶¶ 15-17; Schade Decl. ¶¶ 10, 12-14; Martin Decl. ¶¶ 35-37, 40.

7 Wensnahan Decl. ¶¶ 52-53; Martin Decl. ¶¶ 44-45, 52, 54; Karhu Decl. ¶¶ 15-17, 20; Scaturo Decl. ¶¶ 29-

23 30; Schade Decl. ¶ 20; Chen Decl. ¶ 15; Servian Decl. ¶¶ 25, 31-32; Haughie Decl. ¶¶ 18-26; Swanson Decl. ¶¶ 16-

17; Smith Decl. ¶¶ 17-18, 22.

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1 march route, and threatened many more people with force and arrest, including protesters 2 pausing to recover from or seek medical attention for police-inflicted injuries.8 SPD threw 3 dozens of blast balls and flashbangs indiscriminately at the retreating protesters.9 SPD fired

4 foam-tipped projectiles after protesters tossed lightweight objects such as plastic water bottles or 5 traffic cones in the general direction of police.10 SPD swatted away one clearly marked

6 journalist’s phone to prevent him from recording SPD’s use of force. Smith Decl. ¶¶ 19-21.

7

Many protesters struggled to breathe.11 Madison Lynn Haughie lost consciousness after

8 suffering an asthma attack when she was maced by SPD and then forced to march for miles.

9 Haughie Decl. ¶¶ 24-31; Eby Decl. ¶¶ 14-23. A medic “palpitated her chest until she sputtered

10 and sat back up” after losing all muscle control and consciousness. Eby, ¶ 19. One protester

11 estimated that SPD injured between 50 and 100 protesters that day. Wensnahan Decl. ¶ 58.

12 C. September 22, 2020

13

On September 22—the day that Seattle’s City Council voted to modestly cut SPD’s

14 budget—a small group of 20-30 protesters joined together in peaceful protest in Capitol Hill.

15 Tinney Decl. ¶¶ 3-4; Mowery Decl. ¶¶ 5, 6. As they chanted and walked in the empty streets,

16 SPD dispatched a large police team. See Tinney Decl. ¶ 4 (estimating there were 14 SPD

17 vehicles policing the 20-30-person protest). SPD trapped the protest between two sets of police

18 vehicles, occasionally revving the engine and accelerating menacingly towards protesters.

19 Tinney Decl. ¶¶ 7, 8; Mowery Decl. ¶ 6. Every SPD vehicle had its lights on and sirens blaring

20

21
8 Smith Decl. ¶¶ 8-9, 14, 16, 18; Schade Decl. ¶ 19; Martin Decl. ¶¶ 42, 54; Servian Decl. ¶ 31; Haughie

22

Decl. ¶¶ 18-26; Eby Decl. ¶¶ 11-13. 9 Swanson Decl. ¶ 14; Schade Decl. ¶¶ 15, 16; Servian Decl. ¶¶ 26-28; Martin Decl. ¶¶ 47-48; Karhu Decl.

¶ 17; Smith Decl. ¶ 15.

23

10 Perez Decl., Ex. D; Smith Decl. ¶ 16; Scaturo ¶ 28; Schade Decl. ¶ 16; Swanson Decl. ¶ 15.

11 Schade Decl. ¶ 20; Haughie Decl. ¶¶ 24-27, 30-32; Eby Decl. ¶¶ 14-18; Martin Decl. ¶¶ 45.

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1 at a deafening level, drowning out the chants of “Black lives matter” and “no justice, no peace.”

2 Tinney Decl. ¶¶ 4-5. This wasn’t policing; this was retaliation.

3

As the protest crossed through the intersection of 12th Avenue and East Pine Street, an

4 SPD officer threw a blast ball at a protester lying down in the street. Tinney Decl. ¶¶ 11, 13;

5 Mowery Decl. ¶ 8. Witnesses reported that they saw no apparent justification for the use of any

6 police force at all, let alone potentially lethal force. Tinney Decl. ¶ 14; Mowery Decl. ¶¶ 7-8.

7 Immediately after the explosion, SPD gave a dispersal order for the first time, telling protesters

8 “you’ve committed an unsafe act, you’ve put officers’ lives in jeopardy. You’ve created a safety

9 hazard.” Tinney Decl. ¶ 15.

10 D. September 23, 2020

11

On Wednesday, September 23—the night after prosecutors in Louisville decided not to

12 charge Breonna Taylor’s killers with murder—a few hundred protesters gathered in Capitol Hill.

13 Frazier Decl. ¶ 5; Servian Decl. ¶ 34. A small number of protesters reportedly damaged property.

14 Frazier Decl. ¶ 10; Servian Decl. ¶ 35; Smith Decl. ¶¶ 26-27, 30, 37. Throughout the night, SPD

15 incessantly deployed flashbang grenades, detonated canisters of gas that blanketed the streets in

16 thick clouds of chemicals, blinded and choked dozens of protesters with excessive amounts of

17 pepper spray leaving some vomiting and unable to breathe, and fired rubber bullets or foam-

18 tipped projectiles at the crowd of protesters, while making seemingly random arrests.12 For one

19 period of about 15 minutes, SPD lobbed a flashbang grenade every 1-2 seconds. Frazier ¶ 18;

20 Servian ¶ 49. SPD’s near-constant use of less-lethal weapons against retreating protesters lasted

21 almost 90 minutes. Schade Decl. ¶ 34.

22
12 Frazier Decl. ¶¶ 4, 7, 12-16, 18-19, 21-22, 24, 26; Schade Decl. ¶¶ 23, 26, 27, 31, 32, 34-37, 39, 40, 42-
23 44, 46-47; Servian Decl. ¶¶ 41, 43-45, 47, 49; Haughie ¶¶ 34-35; Swanson Decl. ¶¶ 25-30, 33, 36; Smith Decl. ¶¶
27-29, 35, 38, 40; Krein ¶¶ 28-29, 31.
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1

SPD injured numerous peaceful protesters that night.13 Ames Frazier and a nearby

2 protester were hit in the head with the explosives, sending the other disoriented protester to the 3 hospital with a bloody head injury. Frazier Decl. ¶¶ 18-19, 21-23.14 Another protester in a Kevlar

4 vest sustained shrapnel wounds on his arms. Haughie Decl. ¶ 36. As Melissa Schade and her

5 friend retreated, she was hit with two flashbangs on her backpack and shoulder and her friend

6 was hit by another. Schade Decl. ¶ 44. Some tactics seemed designed to injure. SPD swung bikes

7 over their heads, smashing them down on protesters, instead of pushing at waist height. Schade

8 ¶ 25. SPD pulled one protester’s goggles off before macing him in the face, Schade ¶ 40, and 9 rolled a bike over another’s neck. Frazier Decl. ¶ 17; Schade Decl. ¶ 36.15 As one reporter said:

10 “an officer attempted to seize the umbrella of another individual near me … the protester holding

11 the umbrella fell to the ground. An officer immediately used some kind of rifle to fire three

12 rounds of rubber bullets into the downed protester at close range.” Smith Decl. ¶ 38. “That

13 night,” a protester recalled, “I experienced more intense and aggressive violence by SPD than I

14 had at any other protest before.” Schade Decl. ¶ 23.

15

Many protesters were desperate to leave and go home, but SPD would not allow them to

16 split off from the group, even to seek treatment for their injuries.16 SPD used less-lethal weapons

17 to chase protesters into Cal Anderson park, soaking one protester with so much mace that he

18 staggered into the park and began vomiting. Frazier Decl. ¶ 29. For the first time since the

19 protests began this summer, SPD surrounded the park and pursued protesters into the park,

20 randomly grabbing and arresting people. Schade Decl. ¶¶ 49-50; Frazier Decl. ¶ 30.

21
13 Frazier Decl. ¶¶ 12-13, 21-23, 32; Schade ¶¶ 25, 32, 36, 37, 40, 43; Haughie ¶¶ 36-41; Swanson ¶¶ 29-

22

32, 34-36, 39; Krein ¶ 29; see also Twitter, @spekulation, https://twitter.com/spekulation/status/1309667714143670272.

14 See also https://twitter.com/JonathanLit/status/1309079252013375489.

23

15 See also https://twitter.com/spekulation/status/1309951862049652736.

16 Frazier Decl. ¶ 25-28; Schade Decl. ¶ 43; Haughie Decl. ¶ 42; Krein ¶¶ 31-32.

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1

III. ARGUMENT

2 A. Legal Standard for Contempt

3

The Court should hold the City in contempt for violating the Court’s August 10 Clarified

4 PI order. A party may be held in civil contempt where it “failed to take all reasonable steps

5 within the party’s power to comply with a specific and definite court order.” Fed. Trade Comm’n

6 v. Productive Mktg., Inc., 136 F. Supp. 2d 1096, 1107 (C.D. Cal. 2001) (alterations omitted)

7 (citing In re Dual-Deck Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695 (9th Cir.

8 1993)). Willfulness is not required. Id. (“[T]here is no good faith exception to the requirement of

9 obedience to a court order.”). A party who without just cause fails to comply with a court order

10 may be subject to “such other sanctions as the court may deem appropriate.” LCR 11(c).

11 “Sanctions for civil contempt may be imposed to coerce obedience to a court order, or to

12 compensate the party pursuing the contempt action for injuries resulting from the contemptuous

13 behavior, or both.” Gen. Signal Corp. v Donallco, Inc., 787 F.2d 1376, 1380 (9th Cir. 1986). A

14 party seeking contempt may also be entitled to attorneys’ fees and costs incurred in bringing the

15 motion. Perry v. O’Donnell, 759 F.2d 702 (9th Cir. 1985).

16 B.

The City’s Use of Less-Lethal Weapons Against Peaceful Protesters Violates the Clarified PI.

17 SPD’s unnecessary and unreasonable uses of less lethal weapons cannot be justified

18 under any exception to this Court’s orders. The City is openly and willfully violating this Court’s

19 orders, and should be held in contempt.

20 1. Indiscriminate Use of Explosives, Projectiles, and Canisters of Gas Against

21

Protesters

22

The Court’s orders ban the use of chemical irritants and projectiles against peaceful

23 protesters unless it is necessary, reasonable, proportional, and targeted to either protect against

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Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 12 of 16

1 “specific imminent threat of physical harm to themselves or identifiable others” or to respond to

2 “specific acts of violence or destruction of property.” ECF 42 ¶ 1(1). Less-lethal weapons may

3 not be “deployed indiscriminately into a crowd” and, “to the extent reasonably possible, they

4 should be targeted at the specific imminent threat.” Id. Blast balls, if deployed, must be “directed

5 to an open space near the target individual(s) rather than at individuals.” ECF 110 ¶ 6(5).

6

On all four dates, police launched explosives or fired projectiles at protesters in a manner

7 that was both indiscriminate—directed into the center of a large crowd—and not necessary or

8 targeted to prevent any imminent safety threat. SPD’s use of explosives was also unreasonable,

9 sometimes launched at protesters at very close range or high into the air, raining down shrapnel,

10 posing an obvious and serious risk of injury, and injuring many. To the extent SPD used less-

11 lethal weapons in response to protesters tossing non-injurious objects in the general direction of

12 the police, it was also disproportionate. The Courts Orders do not permit SPD to inflict violence

13 upon protesters en masse because of the conduct of a small number of individual protesters.

14

2. Indiscriminate and Excessive Handheld Pepper Spray

15

The Court’s orders bar the use of handheld “chemical irritants” on the same basis as

16 projectiles described above. See ECF 42 ¶ 1(1); ECF 110 ¶ 6(1). Deployment of handheld pepper

17 spray or mace is only justified where necessary, reasonable, proportional, and targeted to project

18 against specific and imminent threats. See id. Pepper spray may not be deployed indiscriminately

19 at a group and must, “to the extent reasonably possible” be targeted at the specific imminent

20 threat justifying its deployment.

21

On all four dates, SPD officers used handheld pepper spray or mace in a manner violative

22 of the Court’s orders. SPD’s use of pepper spray was often indiscriminate. At other times, SPD

23 drenched the “targets” of the spray with far more chemicals than was necessary to achieve any

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Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 13 of 16

1 legitimate end, and in a manner that affected far more people than the purported “targets,”

2 affecting hundreds of peaceful protesters—some quite seriously.

3

3. Use of Less-Lethal Weapons to Re-Route or Move Protesters

4

The Clarified PI bars “[u]sing chemical irritants or projectiles of any kind to re-route a

5 protest, unless such re-routing is necessary to prevent specific imminent threat of physical harm

6 to themselves or identifiable others, or to respond to specific acts of violence or destruction of

7 property.” ECF 110 ¶ 6(1)(a). Yet on August 26, September 7, and September 23, SPD used

8 these weapons or the threat of these weapons to cut off protester access to side streets onto which

9 protesters wished to disperse, forcing them to stay at the protest longer than they wanted to, and

10 effectively preventing them from complying with the dispersal order; to force a protest to turn; or

11 to force protesters to move faster. On none of these occasions were these actions necessary to

12 prevent any imminent, specific threat.

13

4. Use of Less-Lethal Weapons Without Warning or Reasonable Opportunity

to Disperse and Interference with Attempts to Disperse

14 The Court’s order bars using less-lethal weapons “without, when feasible, first issuing a

15 warning that is reasonably calculated to alert attendees in the area where the weapons are to be

16 deployed and allowing them reasonable time, space, and opportunity under the circumstances to

17 leave the area.” ECF 110 ¶ 6(1)(b). Yet on all four dates, SPD officers deployed less-lethal

18 weapons without providing protesters a warning or reasonable opportunity to disperse. Indeed,

19 on August 26, September 7, and September 23, SPD actively prevented protesters from leaving

20 the area by chasing protesters attempting to disperse or cutting off access to side streets.

21 C.
22

The City Has Failed to Take All Reasonable Steps to Comply with the Court’s Orders

23

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Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 14 of 16

1

In letters to counsel, the City has placed all blame for these incidents on the protesters

2 exercising their First Amendment rights rather than acknowledge (much less correct) any 3 violation of the Court’s Orders. Perez Decl., Ex. B, D.17 The City appears to condone SPD’s

4 deployment of less-lethal weapons against entire crowds of people as a response to isolated acts

5 of destruction or assault by individual protesters and as a means of preventing protesters from

6 dispersing in order to thwart them from “having the time to stage and plan” property destruction. 7 See id.; Brooks Decl., ECF 83 ¶¶ 4, 21.18

8

These excuses fall flat. The City’s position has invited SPD’s repeated and escalating

9 violations of the Order, instead of showing any reasonable effort to comply. In the absence of

10 any evidence that the City has attempted to change SPD behavior, the Court must intervene to

11 curb SPD’s abuses of less-lethal weapons.

12

IV. CONCLUSION

13

The troubling patterns involving SPD’s use of potentially lethal weapons over the past

14 few months reflect an effort to shut down Black Lives Matter protests rather than a commitment

15 by the City to protect protesters’ First Amendment rights and use force only to the extent

16 necessary to protect public safety. For the foregoing reasons, Plaintiffs respectfully request that

17 the Court find that the SPD conduct highlighted in this motion violated the Court’s PI Order and

18 Clarified PI Order. Plaintiffs further request that the Court direct the City to take all actions

19 necessary to bring it into compliance with the Orders, and to report to the Court what actions

20 have been taken by a date certain.

21
17 On September 24, Plaintiffs wrote to the City to ask for a justification of the less-lethal weapons

22

deployed against protesters on September 22 and September 23. Perez Decl., Ex. E. The City has not yet responded to Plaintiffs’ letter regarding the September 22 and 23 incidents.

18 See also Police weapons control crowds, but may heighten chances of violence at protests, Seattle Times

23 (Sep. 24, 2020), https://www.seattletimes.com/seattle-news/crowd-control-weapons-at-seattle-protests-have-caused-

injuries-heightened-tensions-with-police/ (quoting ECF 83).

MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ) – 12

Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 15 of 16

1 DATED: September 30, 2020
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ) – 13

By: s/ David A. Perez By: s/ Carolyn S. Gilbert By: s/ Rachel Haney By: s/ Nitika Arora By: s/ Heath Hyatt By: s/ Paige L. Whidbee David A. Perez #43959 Carolyn S. Gilbert #51285 Rachel Haney #52637 Nitika Arora #54084 Heath Hyatt #54141 Paige L. Whidbee # 55072
Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com
CarolynGilbert@perkinscoie.com RHaney@perkinscoie.com NArora@perkinscoie.com HHyatt@perkinscoie.com PWhidbee@perkinscoie.com
By: s/ Molly Tack-Hooper By: s/ Nancy L. Talner By: s/ Lisa Nowlin By: s/ Breanne Schuster By: s/ John Midgley Molly Tack-Hooper, #56356 Nancy L. Talner #11196 Lisa Nowlin #51512 Breanne Schuster #49993 John Midgley #6511
American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 Telephone: (206) 624-2184 Email: mtackhooper@aclu-wa.org
talner@aclu-wa.org lnowlin@aclu-wa.org bschuster@aclu-wa.org jmidgley@aclu-wa.org

Case 2:20-cv-00887-RAJ Document 114 Filed 09/30/20 Page 16 of 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23
MOTION FOR CONTEMPT (No. 2:20-cv-887 RAJ) – 14

By: s/ Robert S. Chang By: s/ Melissa Lee By: s/ Jessica Levin Robert S. Chang, #44083 Melissa Lee #38808 Jessica Levin #40837
Fred T. Korematsu Center for Law and Equality Ronald A. Peterson Law Clinic Seattle University School of Law 1112 E. Columbia Street Seattle, WA 98122 Telephone: 206.398.4025 Fax: 206.398.4077 Email: changro@seattleu.edu
Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen

 
 Case 2:20-cv-00887-RAJ Document 135 Filed 10/02/20 Page 1 of 14

1

THE HONORABLE RICHARD A. JONES

2

3

4

UNITED STATES DISTRICT COURT

5

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

6

7 BLACK LIVES MATTER SEATTLE-KING COUNTY, ABIE EKENEZAR, SHARON
8 SAKAMOTO, MURACO KYASHNATOCHA, ALEXANDER WOLDEAB,
9 NATHALIE GRAHAM, and ALEXANDRA CHEN,
10 Plaintiffs,
11 v.
12 CITY OF SEATTLE,
13 Defendant.
14

NO. 2:20-cv-00887
THE CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE WHY THE CITY OF SEATTLE SHOULD NOT BE HELD IN CONTEMPT
NOTE ON MOTION CALENDAR: October 5, 2020
ORAL ARGUMENT REQUESTED

15

16

17 /

18 /

19 /

20 /

21 /

CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (2:20-cv-00887) - 1

CHRISTIE LAW GROUP, PLLC
2100 WESTLAKE AVENUE N., SUITE 206 SEATTLE, WA 98109 206-957-9669

Case 2:20-cv-00887-RAJ Document 135 Filed 10/02/20 Page 2 of 14

1

I. INTRODUCTION AND RELIEF REQUESTED

2

The City of Seattle (“The City”) is not in contempt and has substantially complied with

3 this Court’s Orders. (Dkts.. 42 & 110). For nearly four months, protests have occurred throughout

4 the nation in support of Black lives. Almost daily, these protests occur across the City, and most

5 have been peaceful and without any police involvement. Problems have arisen, however, at certain

6 demonstrations with individuals, acting independently or in concert with others, assaulting

7 officers, throwing dangerous projectiles, using explosive devices against officers and/or property,

8 engaging in de-arrest tactics, or refusing to obey lawful orders to disperse such that their refusals

9 hinders lawful police response to criminal activity or lawful police attempts to protect themselves

10 and others from physical harm.

11

Plaintiffs’ Motion for Contempt addresses four demonstrations that occurred on August

12 26, September 7, September 22, and September 23, 2020. (Dkt. 114). The declarations supporting

13 the motion contain important snapshots of a complex series of events, but they do not present a

14 complete story. These accounts lack context and a circumstantial understanding of what

15 information the police commanders and officers had about the non-peaceful individuals they

16 would be encountering, what was transpiring in the broader field of confrontation beyond their

17 immediate field of vision, and why the trained police professionals employed specific force at a

18 specific time against specific individuals or threats. The reality is that not all participants in these

19 protests were peaceful, with many armed and armored individuals intent on destroying property,

20 assaulting officers, or serving as obstruction or cover for others engaged in such conduct.

21

With time to collect and compile the necessary evidence, the City is prepared to address in

CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (2:20-cv-00887) - 2

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Case 2:20-cv-00887-RAJ Document 135 Filed 10/02/20 Page 3 of 14

1 detail the uses of force deployed on these four dates. Only then, with a complete set of evidence,

2 would the Court be in a position to fairly determine whether any particular less lethal deployment

3 or set of deployments violated the terms of the Court’s Orders, and whether any violation, proven

4 by clear and convincing evidence, justifies a finding that the City should be held in contempt.

5 Entering the order requested by Plaintiffs, which is devoid of reference to the clear and convincing

6 burden of proof, poses serious due process violations, as the City does not have a meaningful

7 opportunity to be heard on the important, challenging, and nuanced issues raised with respect to

8 four separate events.

9

The City has consistently and continuously instructed the members of its police department

10 on the rules of engagement for the use of chemical irritants and projectiles (crowd control weapons

11 or “CCWs”) and the parameters of this Court’s Orders. (See Brooks and Allen Decls.) The City

12 also employs a robust system for review of alleged policy violations and uses of force with the

13 level of depth and specificity necessary to meaningfully assess police uses of force in

14 demonstration contexts and determine compliance, discipline, and/or needed policy changes. (See

15 Sharifi Decl.) This review process cannot meaningfully take place in a rushed timeframe, with

16 limited review of video snapshots posted online, and with isolated witness accounts. Plaintiffs

17 essentially request the Court to broaden the scope of its prior order and implement new relief that

18 shifts oversight of the City’s crowd management training and policies away from those institutions

19 and processes created and strengthened through the City’s work with the DOJ as part of the

20 Consent Decree, and instead create a mechanism for immediate review by these plaintiffs and this

21 Court.

CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (2:20-cv-00887) - 3

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2100 WESTLAKE AVENUE N., SUITE 206 SEATTLE, WA 98109 206-957-9669

Case 2:20-cv-00887-RAJ Document 135 Filed 10/02/20 Page 4 of 14

1

The City seeks direction from the Court on what standard it will be applying to determine

2 whether the City is in contempt of its orders, given the undisputed burden of proof that a violation

3 must be established clearly and convincingly. The City requests that the Court clarify if it

4 contemplates a single incident, multiple incidents, single event date, or multiple event dates as

5 potentially rising to the level justifying a contempt finding. It will take considerable time to collect

6 the necessary documentation to identify and assess each use of force portrayed in the videos

7 presented by Plaintiffs. The City requests that the Court identify whether there is a preferred way

8 to narrow the response to specific uses of force or specific incidents that raise the Court’s concern.

9

The City also seeks guidance on the types of sanctions this Court may contemplate with

10 such a contempt request. Twice now, Plaintiffs requested sweeping changes to the preliminary

11 injunction, SPD policies, training, practices, and resources. In doing so, Plaintiffs seek to bypass

12 the threshold injunctive requirements packaged in the form of a contempt motion. If this Court is

13 considering changes to training, policies, or procedures, this will require the City to respond both

14 to the substance of the considered remedies and to determine and present the possibility that any

15 such remedy is feasible, permitted by law, or will violate its obligations under the Consent Decree.

16 The City has respectfully requested this Court to set a status conference allowing the parties to

17 address these questions and allow for a more efficient and meaningful response to Plaintiffs’

18 motion. Based upon the limited information presented to the Court, Plaintiffs cannot meet their

19 burden of establishing that the City should be held in contempt or that they are entitled to a new

20 preliminary injunction. The Court should deny Plaintiffs’ motion.

21 / / /

CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE (2:20-cv-00887) - 4

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Case 2:20-cv-00887-RAJ Document 135 Filed 10/02/20 Page 5 of 14

1

II. STATEMENT OF FACTS

2 A. Procedural Facts

3

On June 17, 2020, this Court entered a preliminary injunctive order enjoining the City from

4 employing chemical irritants or projectiles of any kind (tear gas, OC spray, blast balls, rubber

5 bullets) against peaceful protestors. (Dkt. 42.) The Order did not prohibit the use of these crowd

6 control weapons when necessary, reasonable, proportional, and targeted to protect against a

7 specific imminent threat of physical harm to themselves or others or destruction of property. (Id.)

8 On August 10, 2020, the parties stipulated to an Order amending the terms of the preliminary

9 injunction, which the Court entered on August 10, 2020. (Dkt. 110).

10

On August 28, 2020, Plaintiffs’ counsel sent a letter to the City requesting information

11 regarding SPD’s use of CCWs at a demonstration in the Eastlake neighborhood on August 26 and

12 how City viewed its response as consistent with the Court’s Orders. (Dkt. 115 at Ex. A). The letter

13 did not mention a motion for contempt. (Id.) On September 4, the City timely replied with the

14 detailed information requested. (Dkt. 115 at Ex. B.) Plaintiffs’ counsel did not respond to the

15 City’s letter, nor did they request additional information or a meet and confer with respect to any

16 issues arising from the August 26 demonstration. (Declaration of Ghazal Sharifi, ¶ 4.)

17

On September 9, 2020, Plaintiffs’ counsel sent a letter to the City requesting information

18 regarding SPD’s use of CCWs at a demonstration near the Seattle Police Officer’s Guild (“SPOG”)

19 building on September 7. (Dkt. 115 at Ex. C.) Plaintiffs requested information about the CCWs

20 deployed and how the City viewed its response as consistent with the Court’s Orders. (Id.) The

21 letter indicated that Plaintiffs were considering asking the Court to reopen contempt proceedings.

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1 (Id.) On September 11, the City promptly replied with the requested information. (Dkt. 115 at

2 Ex. D). Again, Plaintiffs’ counsel did not respond to the City’s letter, request additional

3 information, or schedule a conference to discuss the issues raised. (Sharifi Decl., ¶ 6.)

4

Finally, on Thursday, September 24, 2020, Plaintiffs’ counsel sent another letter,

5 requesting information regarding SPD’s use of CCWs at demonstrations taking place in the Capitol

6 Hill neighborhood over September 22 and 23. (Dkt. 115 at Ex. E). In addition to seeking detailed

7 information, Plaintiffs’ counsel made a number of claims against the City beyond the scope of the

8 Court’s Orders, essentially demanding concessions of civil liability with respect to allegations of

9 excessive force under the Fourth Amendment. (Id.) The City’s counsel acknowledged receipt of

10 the letter on Friday, September 25, and indicated that a response would be forthcoming the

11 following week. (Sharifi Decl, Ex. A.) The City began collecting the requested information and

12 preparing its response. (Id., ¶ 8.)

13

At 6:30 a.m. on Tuesday, September 29, 2020, Plaintiffs’ counsel sent an email requesting

14 to meet and confer with the City that day about their “forthcoming motion for contempt.” (Sharifi

15 Decl., Ex. B.) Plaintiffs did not provide any details on the basis of the motion or their requested

16 relief. (Id.) The City’s counsel promptly responded and indicated that its work responding to the

17 September 24 letter would be paused, as it appeared Plaintiffs’ counsel had changed their mind

18 about their request for information. (Sharifi Decl., Ex. C). A conference was scheduled for the

19 same day, with Plaintiffs’ counsel expecting “it will be a short call, as it seems that we

20 fundamentally disagree about whether SPD’s tactics involving less-lethal weapons are consistent

21 with the Court’s orders.” (Sharifi Decl., Ex. D.)

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1

During the telephonic conference on September 29, Plaintiffs’ counsel stated they would

2 be filing the subject motion based on events taking place on August 26 and September 7, 22, and

3 23. (Sharifi Decl., ¶ 11.) Given the volume of relevant evidence and the significant effort

4 necessary to respond to the July motion for contempt, which only dealt with one specific

5 demonstration, the City suggested the parties request a status conference with the Court to address

6 the timing of a substantive response and next steps. (Id.) The parties agreed that such a conference

7 would be beneficial. (Id.).

8

Plaintiffs’ motion is supported by nineteen witness declarations, and significant individual

9 video clips, some of which are quite long and others that were not previously provided to the City.

10 (Sharifi Decl., ¶ 12.) As officers continue to draft and submit reports related to these four

11 demonstrations, the City can review those drafts and associated body worn video. (Id.) Setting

12 aside the challenges of producing that information before it is finalized consistently with the City’s

13 policies, the City would need multiple weeks to devote the staffing necessary to identify the

14 officers involved in conduct referenced by Plaintiffs or their video footage in order to provide a

15 full response to those allegations. (Id.)

16 B. Facts Related to the Four Demonstrations

17

The City adopts and incorporates the facts contained in the declarations of Lieutenant John

18 Brooks, Captain Matt Allen, and Ghazal Sharifi, filed herewith.

19

III. AUTHORITIES AND ARGUMENTS

20 A. Plaintiffs Cannot Establish the City Violated This Court’s Order.

21

The City fully articulated the legal standards applicable to this motion in its Response to

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1 plaintiffs’ first Motion. In the interest of judicial economy, and sensitive to the page limitations

2 for this brief, the City incorporates its prior Response (Dkt. 78). It is undisputed that a party filing

3 a motion for civil contempt must prove that the non-moving party has violated a court order by

4 clear and convincing evidence, something that plaintiffs acknowledged in their Reply brief. (Dkt.

5 87, p. 6, ll. 11-12.) Moreover, Plaintiffs have failed to provide the Court with clear and convincing

6 evidence that the City failed to substantially comply with the Courts’ Orders.

7

1. It is undisputed that the City has unequivocally and consistently apprised its

police officers of the terms of the Courts’ Orders and the requirement that they

8

comply with those Orders.

9

Since the inception of the Court’s TRO and later converted preliminary injunction, SPD

10 has been disseminating and instructing officers of the parameters of the Court’s Orders. Relevant

11 to the time frame of this motion, on August 11, 2020, Detective Puente sent an email to all SPD

12 officers attaching the Court’s June 17, 2020 and August 10, 2020 Orders, copying the language

13 from each of those orders into the body of the email, and indicated in bold that “[a]ll SPD members

14 are required to read each of these orders and be familiar with their terms.” (Dkt. 112.)

15

SPD also holds mandatory briefings before each shift in which officers are expected to

16 provide crowd control management. (Brooks Decl, ¶ 3.) As part of that briefing, one or more

17 members of the command staff share with the group of officers the anticipated schedule and events

18 for the day, intelligence gathered about potential threats, the Commander’s intent and objectives,

19 and the rules of engagement. (Id.) This briefing always includes a reminder to SPD officers to act

20 consistently with SPD policies and the Court’s Orders regarding use of CCWs. (Id.) Command

21 staff also provides the SPD officers with a copy of the Incident Action Plan (IAP) associated with

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1 that shift. (Id.) This standard protocol was followed on August 26, September 7, September 22,

2 and September 23. (Id.; Allen Decl. ¶ 8.) The City of Seattle and its Police Commanders are not

3 encouraging or inciting officers to violate the Courts’ Orders, or that the City has failed to

4 substantially comply with the Court’s Orders in good faith.

5

2. Police Officers Deployed CCWs in Compliance with the Court’s Orders.

6

Plaintiffs present numerous declarations of individuals who claim to have been peacefully

7 protesting when they either witnessed what they believed to be an inappropriate use of force or

8 experienced the impact of OC spray or a blast ball. However, the declarations of Plaintiffs’

9 witnesses do not capture the events from the officers’ perspectives and exemplify the incomplete

10 nature of their perceptions. For instance, the blast ball that Plaintiffs claim was targeted at the

11 person on the ground was not, in fact, directed at that person and did not detonate near that person.

12 (Brooks Decl., ¶ 25, Ex. C.). Other examples of the same have unfolded during these demonstration

13 events. (See Dkt. 80; Sharifi Dec., ¶ 23 (referencing recent OPA decisions from viral videos.)).

14

These demonstrations present extreme challenges to both sides: protesters who want to

15 exercise their right to demonstrate peacefully in support of causes that matter and police officers

16 who are vastly outnumbered while also expected to protect others, protect each other, protect

17 themselves, and prevent the destruction of property. When individual members of the crowd fail

18 to follow lawful orders to disperse, assault officers, attempt arson, throw projectiles, vandalizing

19 businesses, and block traffic in way that poses a danger to others, the police are authorized – indeed

20 charged - to act to protect safety of self and others and to address property destruction. The issue

21 is not whether crowd control devices were used and impacted members of the crowd; instead, the

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1 issue before the Court is whether officers, at the time they deployed that force, to the extent

2 reasonably possible, did so in a manner consistent with the Court’s Orders. There is no evidence

3 in this record of officers deploying CCWs in violation of the Court’s Orders.

4

3. The Court should not address police conduct not governed by its June 17, 2020

and August 10, 2020 Orders.

5

Plaintiffs complain about various police conduct, including perceptions of police officer

6

demeanor, the use of bikes to move crowds, police tactics involving the decision to move crowds

7

away from a specific location, the decision not to allow cars to block the road, and music played

8

by SPOG members. Respectfully, this type of conduct is not governed by this Court’s Orders, nor

9

is this the appropriate forum to determine whether any specific officer or the City in general has

10

engaged in an excessive use of force under the Fourth Amendment or conduct that may trigger

11 criminal or civil liability. 1

12 B.

Plaintiffs’ Motion Seeks Infeasible Relief that Goes Beyond the Bounds of a Civil

13

Contempt Filing.

14

In addition to asking the Court to find the City in contempt, Plaintiffs seek new injunctive

15 relief well beyond the bounds of the Orders: that the City (1) institute additional in-person training

16 subject to this Court’s approval; (2) notify Plaintiffs and the Court regarding its internal

17 investigative process, including potential disciplinary actions, criminal investigations, and

18 prosecutorial considerations within a matter of weeks; and (3) file with the Court within five

19

20 1 For example, plaintiffs highlight the highly publicized video of a bike officer that appeared to roll over the head of
an individual on the ground. This incident was immediately addressed by SPD command staff and later referred for
21 criminal investigation by the Office of Police Accountability. See https://spdblotter.seattle.gov/2020/09/24/bike-
officer-placed-on-leave-opa-sheriffs-office-conducting-reviews/; Allen Decl., ¶ 41-45.

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1 working days of every CCW deployment its determination whether that deployment is consistent

2 with the Court’s Orders. (Dkt. 114-1.) This requested extraordinary relief is beyond the bounds

3 of the available civil sanctions that may be awarded to a party seeking contempt. See General

4 Signal Corp., 787 F.2d 1376; BMG Music v. Perez, 952 F.2d 318 (9th Cir. 1991).

5

Additionally, TROs “should be restricted to serving [its] underlying purpose of preserving

6 the status quo and preventing irreparable harm just so long as is necessary to hold a hearing, and

7 no longer.” Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 438-39 (1974). “[T]he

8 standards for issuance of a temporary restraining order are at least as exacting as those for a

9 preliminary injunction.” Pohlman v. Hormann, 2014 WL 5425502 *1 n.1 (D. Or. Oct. 20, 2014)

10 (citing Los Angeles Unified Sch. Dist. v. United States Dist. Court for the Cent. Dist. of Cal., 650

11 F.2d 1004, 1008 (9th Cir. 1981)). “Plaintiffs bear the burden of proving each one of the [four]

12 elements.” Klein v. City of San Clemente, 584 F.3d 1196, 1201 (9th Cir. 2009). Plaintiffs fail to

13 meet or even address this standard.

14

Even if the Court had discretion to implement these requests, and the Plaintiffs established

15 their necessity by clear and convincing evidence, the request should be denied. First, any attempt

16 to alter the City’s training and/or policies with respect to access or use of crowd control devices

17 could interfere with the preliminary injunction in United States v. Seattle, C12-1282JLR (Dkt.

18 647), depending upon Plaintiff’s expectations of changes to the current program. Second, any

19 requirement the City notify Plaintiffs and the Court of internal investigations would likely violate

20 the City’s collective bargaining agreement with SPOG, police officers’ Fifth Amendment and

21 Garrity rights, and the City’s policies allowing officers sufficient time to draft reports.

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1

These requests to expand the scope of Court’s injunctive relief are also unnecessary and

2 threaten the integrity of the processes the City already has in place for systematic, comprehensive

3 review of individual complaints. As set forth in Ms. Sharifi’s declaration, the Office of

4 Professional Accountability (OPA) already conducts a through and robust review of alleged

5 inappropriate police activity. Examples of this review highlight (1) that troubling video images

6 are not always what they seem; (2) comprehensive review focused on an examination of all

7 available evidence is key to a reliable process; and (3) when police officers act inappropriately, 8 the City is prepared to issue proper discipline.2

9 C. The City Requests Additional Time to Substantively Respond.

10

The City recognizes that these four demonstrations involve several deployments. The City

11 is committed to continue its effort to collect all relevant evidence and prepare a complete response,

12 but this process requires time. If the Court is inclined to proceed with Plaintiffs’ motion for

13 contempt at this time, the City requests the clarification delineated above and an additional 60 days

14 to provide a more substantive response. However, the City suggests that, instead, the Court hold

15 a status conference so that the Court and the parties can confer about how best to proceed. It is

16 clear that what the parties need at this moment is clarity about how the Court sees a civil contempt

17
2 In addition to reviewing specific uses of force and misconduct allegations, the City is undertaking a more systemic
18 analysis of SPD’s response to the mass protests. On June 5, 2020, Mayor Durkan requested that OPA, OIG, and the
Community Police Commission (“CPC”) evaluate SPD’s crowd management policies and tactics and make
19 recommendations based on best practices. See June 5, 2020 Letter from Mayor Durkan. In addition, the City Council
has asked the OPA, OIG, and CPC (who is represented in this Consent Decree litigation by Plaintiffs’ lead counsel) to analyze SPD’s use of less lethal devices for crowd control management and provide recommendations for future
20 use and regulation of these devices. Crowd Control Ordinance Section 2. They are currently carrying out this important
work. See e.g., OIG’s Project Scoping Documents. Plaintiffs’ request interferes and conflicts with these processes
21 from the City subject matter experts tasked with such a responsibility.

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1 motion playing out, what issues it intends to address, the extent to which any individual officer

2 violation negates the City’s substantial compliance with the Orders, and what relief it is willing to

3 consider. This will allow the City to better understand how, if at all, a contempt motion implicates

4 the City’s requirements under the Consent Decree, as well as request a more reasonable time frame

5 for the City to respond to any future motion made by Plaintiffs.

6

IV. CONCLUSION

7

The City of Seattle has been and continues to be committed to deploying its police force in a

8 way that both protects the right of every citizen to peacefully protest, while also protecting the public

9 and officers from physical harm and violent property destruction. The City also takes seriously its

10 obligation to keep the public safe, protect First Amendment rights, and ensure police officers have

11 the tools and resources they need to maintain their own safety while doing so. The City has complied

12 with its legal obligations under this Court’s Orders, and it will continue to do so as our police

13 department and our community look to the future. Plaintiffs have not established any violation of the

14 Court’s Orders, let alone proving a violation by clear and convincing evidence. This Court should

15 deny Plaintiffs’ motion.

16 / / /

17 / / /

18 / / /

19

20

21

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1

Respectfully submitted this 2nd day of October, 2020.

2

CHRISTIE LAW GROUP, PLLC

3

By /s/ Robert L. Christie

ROBERT L. CHRISTIE, WSBA #10895

4

THOMAS P. MILLER, WSBA #34473

ANN E. TRIVETT, WSBA #39228

5

MEGAN M. COLUCCIO, WSBA #44178

Attorneys for Defendant City of Seattle

6

2100 Westlake Avenue N., Suite 206

Seattle, WA 98109

7

Phone: 206-957-9669

Email: bob@christielawgroup.com

8

tom@christielawgroup.com

ann@christielawgroup.com

9

megan@christielawgroup.com

10

PETER S. HOLMES

Seattle City Attorney

11

12

By /s/ Ghazal Sharifi

GHAZAL SHARIFI, WSBA# 47750

13

CAROLYN U. BOIES, WSBA #40395

Attorneys for Defendant City of Seattle

14

Assistant City Attorneys

Seattle City Attorney’s Office

15

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

16

Phone: 206-684-8200

E-mail: Ghazal.Sharifi@seattle.gov

17

Carolyn.Boies@seattle.gov

18

19

20

21

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