JURYDEMAND,PROTO
U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:20-cv-00983-TSZ

Hunters Capital LLC et al v. City of Seattle Assigned to: Judge Thomas S. Zilly Cause: 42:1983 Civil Rights Act

Date Filed: 06/24/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Hunters Capital LLC a Washington limited liability company

represented by Tyler Weaver HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2ND AVENUE STE 2000 SEATTLE, WA 98101 206-623-7292 Fax: FAX 623-0594 Email: tylerw@calfoeakes.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Andrew S DeCarlow CALFO EAKES LLP 1301 SECOND AVE STE 2800 SEATTLE, WA 98101-3808 206-407-2200 Email: andrewd@calfoeakes.com ATTORNEY TO BE NOTICED

Angelo J Calfo CALFO EAKES LLP 1301 SECOND AVE STE 2800 SEATTLE, WA 98101-3808 206-407-2200 Fax: 206-407-2224 Email: angeloc@calfoeakes.com ATTORNEY TO BE NOTICED

Plaintiff Northwest Liquor and Wine LLC a Washington limited liability company
Plaintiff SRJ Enterprises a Washington corporation

Henry Charles Phillips CALFO EAKES LLP 1301 SECOND AVE STE 2800 SEATTLE, WA 98101-3808 206-407-2215 Email: henryp@calfoeakes.com ATTORNEY TO BE NOTICED
Patricia A Eakes CALFO EAKES LLP 1301 SECOND AVE STE 2800 SEATTLE, WA 98101-3808 206-407-2227 Fax: 206-407-2224 Email: pattye@calfoeakes.com ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY

doing business as Car Tender
Plaintiff The Richmark Company a Washington company doing business as Richmark Label TERMINATED: 10/30/2020
Plaintiff Sage Physical Therapy PLLC a Washington professional limited liability company TERMINATED: 10/29/2020

ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Kathleen Caples TERMINATED: 10/29/2020
Plaintiff Onyx Homeowners Association a Washington registered homeowners assocation

Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff Wade Biller
Plaintiff Madrona Real Estate Services LLC a Washington limited liability company

Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow

Plaintiff Madrona Real Estate Investors IV LLC a Washington limited liability company
Plaintiff Madrona Real Estate Investors VI LLC a Washington limited liability company

(See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address)

Plaintiff 12th and Pike Associates LLC a Washington limited liability company
Plaintiff Redside Partners LLC a Washington limited liability company

ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Magdalena Sky
Plaintiff Olive St Apartments LLC a Washington limited liability company

Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Bergmans Lock and Key Services LLC a Washington limited liability company
Plaintiff Matthew Ploszaj

Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Angelo J Calfo (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips

Plaintiff Argento LLC
Plaintiff Rancho Bravo, Inc
Plaintiff

(See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED

Sway and Cake LLC
Plaintiff Shuffle LLC doing business as Cure Cocktail
V. Defendant City of Seattle

represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andrew S DeCarlow (See above for address) ATTORNEY TO BE NOTICED
Henry Charles Phillips (See above for address) ATTORNEY TO BE NOTICED
Patricia A Eakes (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur W. Harrigan , Jr. HARRIGAN LEYH FARMER & THOMSEN LLP 999 THIRD AVENUE, SUITE 4400 SEATTLE, WA 98104 206-623-1700 Fax: 206-623-8717

Amicus National Police Association

Email: arthurh@harriganleyh.com ATTORNEY TO BE NOTICED
Joseph Givon Groshong SEATTLE CITY ATTORNEY'S OFFICE 701 FIFTH AVENUE SUITE 2050 SEATTLE, WA 98104-7097 206-684-8223 Email: joseph.groshong@seattle.gov ATTORNEY TO BE NOTICED
Kristin Elizabeth Ballinger HARRIGAN LEYH FARMER & THOMSEN LLP 999 THIRD AVENUE, SUITE 4400 SEATTLE, WA 98104 206-623-1700 Fax: 206-623-8717 Email: kristinb@harriganleyh.com ATTORNEY TO BE NOTICED
Tyler Lawrence Farmer HARRIGAN LEYH FARMER & THOMSEN LLP 999 THIRD AVENUE, SUITE 4400 SEATTLE, WA 98104 206-623-1700 Fax: 206-623-8717 Email: tylerf@harriganleyh.com ATTORNEY TO BE NOTICED
represented by James L Buchal MURPHY & BUCHAL 2000 SW FIRST AVE STE 320 PORTLAND, OR 97201 503-227-1011 Email: jbuchal@mbllp.com ATTORNEY TO BE NOTICED

Date Filed

# Docket Text

06/24/2020 1
06/24/2020 2
06/24/2020 3
06/25/2020 06/25/2020
4
06/25/2020 5
06/25/2020
06/26/2020 6
06/30/2020 7

COMPLAINT against defendant(s) City of Seattle with JURY DEMAND (Receipt # AWAWDC-6422863) Attorney Patricia A Eakes added to all Plaintiff's. (Eakes, Patricia) Modified on 6/25/2020, remove list of plaintiff names (SG). (Entered: 06/24/2020)
PRAECIPE TO ISSUE SUMMONS by Plaintiffs (Eakes, Patricia) Modified on 6/25/2020-remove list of plaintiff names (SG). (Entered: 06/24/2020)
CIVIL COVER SHEET ; filed by Plaintiffs. (Eakes, Patricia) Modified on 6/25/2020-remove list of plaintiff names (SG). (Entered: 06/24/2020)
Judge Thomas S. Zilly added. (SG) (Entered: 06/25/2020)
NOTICE TO FILER: re 1 Complaint. Notice of Filing Deficiency ** Action Required ** See attached letter for more information and instructions. (SG) (Entered: 06/25/2020)
Summons Electronically Issued as to defendant(s) All Defendants (SG) (Entered: 06/25/2020)
NOTICE Pursuant to Fed.R.Civ.P 7.1, Plaintiff(s) must file a Corporate Disclosure Statement by 7/2/2020. (SG) (Entered: 06/25/2020)
NOTICE of Appearance by attorney Angelo J Calfo on behalf of Plaintiffs 12th and Pike Associates LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Magdalena Sky, The Richmark Company. (Calfo, Angelo) (Entered: 06/26/2020)
ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 8/31/2020, FRCP 26(f) Conference Deadline is 8/17/2020, Initial Disclosure Deadline is 8/31/2020, by Judge Thomas S. Zilly. (KD) (Entered: 06/30/2020)

07/01/2020 8

NOTICE of Appearance by attorney Joseph Givon Groshong on behalf of Defendant City of Seattle. (Groshong, Joseph) (Entered: 07/01/2020)

07/10/2020 9

AMENDED COMPLAINT CLASS ACTION against defendant(s) City of Seattle with JURY DEMAND, filed by Madrona Real Estate Investors VI LLC, Onyx Homeowners Association, Bergmans Lock and Key Services LLC, Northwest Liquor and Wine LLC, Hunters Capital LLC, Redside Partners LLC, Kathleen Caples, SRJ Enterprises, Madrona Real Estate Services LLC, 12th and Pike Associates LLC, Olive St Apartments LLC, Magdalena Sky, Wade Biller, The Richmark Company, Madrona Real Estate Investors IV LLC, Sage Physical Therapy PLLC.(Eakes, Patricia) (Entered: 07/10/2020)

07/10/2020 10
07/23/2020 11

CORPORATE DISCLOSURE STATEMENT indicating no Corporate Parents and/or Affiliates. Filed pursuant to Fed.R.Civ.P 7.1. Filed by RANCHO BRAVO, INC., SRJ Enterprises, The Richmark Company (Eakes, Patricia) (Entered: 07/10/2020)
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendant City of Seattle. Oral Argument Requested.

08/17/2020

(Attachments: # 1 Proposed Order) Noting Date 8/21/2020, (Groshong, Joseph) (Entered: 07/23/2020)
Set/Reset Deadlines: Per telephonic request of counsel, the deadlines for initial disclosures and submission of a Joint Status Report are EXTENDED to 9/14/2020. (KD) (Entered: 08/17/2020)

08/17/2020 12

RESPONSE, by Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company,

to 11 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Oral Argument Requested. (Eakes, Patricia) (Entered: 08/17/2020)

08/21/2020

13 NOTICE of Appearance by attorney Henry Charles Phillips on behalf of Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen

08/21/2020 14
08/21/2020
09/08/2020 15
09/08/2020
09/09/2020 09/10/2020
16 09/10/2020
17

Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company. (Phillips, Henry) (Entered: 08/21/2020)
REPLY, filed by Defendant City of Seattle, TO RESPONSE to 11
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Groshong, Joseph) (Entered: 08/21/2020)
Attorneys Tyler Weaver and Andrew S DeCarlow added for 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company; per 13 Notice of Appearance (MW) (Entered: 08/21/2020)
NOTICE of Association of Attorney by Arthur W. Harrigan, Jr on behalf of Defendant City of Seattle. (Harrigan, Arthur) (Entered: 09/08/2020)
Attorneys Tyler Lawrence Farmer, Kristin Elizabeth Ballinger
added for City of Seattle; per 15 Notice of Attorney Association. (MW) (Entered: 09/08/2020)
Set/Reset Deadlines: Per telephonic request of counsel, the deadlines for initial disclosures and submission of a Joint Status Report are EXTENDED to 9/28/2020. (KD) (Entered: 09/09/2020)
MOTION to Stay City of Seattle's Motion for a Stay of Discovery, filed by Defendant City of Seattle. (Attachments: # 1 Proposed Order) Noting Date 9/25/2020, (Harrigan, Arthur) (Entered: 09/10/2020)
DECLARATION of Joseph Groshong filed by Defendant City of
Seattle re 16 MOTION to Stay City of Seattle's Motion for a

Stay of Discovery (Attachments: # 1 Exhibit 1, # 2

Exhibit 2)(Harrigan, Arthur) (Entered: 09/10/2020)

09/21/2020 18

RESPONSE, by Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company,

09/21/2020

to 16 MOTION to Stay City of Seattle's Motion for a Stay of Discovery. (Attachments: # 1 Proposed Order DENYING THE CITY OF SEATTLES MOTION FOR A STAY OF DISCOVERY)(Eakes, Patricia) (Entered: 09/21/2020)
19 DECLARATION of Tyler Weaver filed by Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The

Richmark Company re 16 MOTION to Stay City of Seattle's Motion for a Stay of Discovery (Eakes, Patricia) (Entered: 09/21/2020)

09/25/2020 20
09/28/2020 21
10/08/2020 22

REPLY, filed by Defendant City of Seattle, TO RESPONSE to 16
MOTION to Stay City of Seattle's Motion for a Stay of Discovery (Harrigan, Arthur) (Entered: 09/25/2020)
JOINT STATUS REPORT signed by all parties. Estimated Trial Days: 15. (Eakes, Patricia) (Entered: 09/28/2020)
CORPORATE DISCLOSURE STATEMENT indicating no Corporate Parents and/or Affiliates. Filed pursuant to Fed.R.Civ.P 7.1. Filed by Rancho Bravo, Inc, SRJ Enterprises, The Richmark Company (Eakes, Patricia) (Entered: 10/08/2020)

10/16/2020 23

ORDER: Defendant's 11 motion to dismiss the fourth cause of action based on equal protection is GRANTED. This claim is dismissed without prejudice. Plaintiffs may electronically file a second amended complaint via the Case Management and Electronic Case Filing ("CM/ECF") system within fourteen (14) days of the date of this Order. Except as provided in paragraph (1), the motion to dismiss all other causes of action is DENIED. The motion to deny class certification is DENIED without prejudice pending discovery for the reasons stated in this Order. The motion

to stay discovery, docket no. 16 , is now DENIED as moot. Signed by Judge Thomas S. Zilly.(MW) (Entered: 10/16/2020)

10/22/2020 24

MINUTE ORDER: Having reviewed the parties' Joint Status
Report, docket no. 21 , indicating that the City requests that the Court convene a scheduling conference before entering a scheduling order, the Court now SETS a telephone conference call for Thursday, October 29, 2020, at 10:30 a.m. The Court's staff will be in contact with counsel to provide a conference call number and access code. Authorized by Judge Thomas S. Zilly. (MW) (Entered: 10/22/2020)

10/29/2020

25 MINUTE ENTRY for proceedings held before Hon. Judge Thomas S. Zilly- Dep Clerk: Gail Glass; Pla Counsel: Angelo Calfo, Patty Eakes and Tyler Weaver; Def Counsel: Tyler Farmer, Joseph Groshong, Art Harringan and Kristin Ballinger; CR: NONE; Time of Hearing: 10:30 a.m.; Telephone Conference held on 10/29/2020. Counsel appear telephonically. The Court and counsel

discuss the Joint Status Report, docket no. 21 . For the reasons discussed at the conference, the Court GRANTS Plaintiffs' request to file an amended complaint to add state law claims. The parties agree that a discovery conference and the phasing of discovery is no longer necessary. The Court DIRECTS that the parties participate in the alternative dispute resolution program after discovery is completed pursuant to LCR 39.1. The jury trial is SET to commence on Monday, June 6, 2022. A scheduling order will be entered to reflect the dates discussed at the telephone conference. Adjourned.(GG) (Entered: 10/29/2020)

10/29/2020 26

STIPULATION STIPULATED DISMISSAL OF PLAINTIFFS SAGE PHYSICAL THERAPY PLLC AND KATHLEEN CAPLES PURSUANT TO FRCP 41(a)(1)(A)(ii) by parties (Eakes, Patricia)

10/29/2020 27
10/30/2020 28
11/11/2020 29
11/11/2020 30

(Plaintiffs Sage Physical Therapy PLLC and Kathleen Caples terminated) (MW). (Entered: 10/29/2020)
MINUTE ORDER SETTING TRIAL AND RELATED DATES: Jury Trial (2-3 weeks) is set for 6/6/2022 before Judge Thomas S. Zilly. Joinder of Parties due by 2/12/2021, Amended Pleadings due by 2/12/2021, Discovery on class certification issues to be completed by 5/17/2021, Motions related to class certification due by 8/27/2021, Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 1/3/2022, Rebuttal Expert Disclosure/Reports due by 2/15/2022, Motions related to discovery due by 2/17/2022, All remaining discovery to be completed by 3/15/2022, Dispositive motions due by 3/17/2022, Motions related to expert witnesses due by 3/24/2022, Motions in Limine due by 4/14/2022, 39.1 mediation to be completed by 4/15/2022, Agreed Pretrial Order due by 5/20/2022, Voir dire/jury instructions/trial briefs due by 5/20/2022, Pretrial Conference set for 5/27/2022 at 10:30 AM before Judge Thomas S. Zilly. Authorized by Judge Thomas S. Zilly. (MW) (Entered: 10/29/2020)
Second AMENDED COMPLAINT CLASS ACTION COMPLAIN against All Defendants with JURY DEMAND Attorney Patricia A Eakes added to party Argento LLC(pty:pla), Attorney Patricia A Eakes added to party Matthew Ploszaj(pty:pla), Attorney Patricia A Eakes added to party Rancho Bravo, Inc(pty:pla), Attorney Patricia A Eakes added to party Shuffle LLC(pty:pla), Attorney Patricia A Eakes added to party Sway and Cake LLC(pty:pla), filed by Madrona Real Estate Investors VI LLC, Onyx Homeowners Association, Rancho Bravo, Inc, Matthew Ploszaj, Northwest Liquor and Wine LLC, Bergmans Lock and Key Services LLC, Argento LLC, Hunters Capital LLC, Redside Partners LLC, Shuffle LLC, SRJ Enterprises, Madrona Real Estate Services LLC, 12th and Pike Associates LLC, Olive St Apartments LLC, Magdalena Sky, Sway and Cake LLC, Wade Biller, The Richmark Company, Madrona Real Estate Investors IV LLC.(Eakes, Patricia) (Entered: 10/30/2020)
Entry is stricken. See docket no. 32 MOTION for Leave to Participate As Amicus Curiae and Memorandum in Support Thereof, filed by Amicus National Police Association. (Attachments: # 1 Proposed Order) Noting Date 12/4/2020, (Buchal, James) (Entered: 11/11/2020)
Entry is stricken. See docket no. 33 DECLARATION of Ed Hutchison filed by Amicus National Police Association re 29

11/11/2020 11/13/2020

MOTION for Leave to Participate As Amicus Curiae and Memorandum in Support Thereof (Buchal, James) (Entered: 11/11/2020)
NOTE: Documents 29 Motion and 30 Declaration were filed incorrectly. Appearance of attorney James L Buchal is not proper, and notices of electronic filing will not be sent until corrected. Signatures must be in accordance with FRCP 11 and LCR 83.2(a) and must comply with ECF Filing Procedures. (MW) (Entered: 11/12/2020)
31 NOTICE of Appearance by attorney James L Buchal on behalf of Amicus National Police Association. (Buchal, James) (Entered: 11/13/2020)

11/13/2020 32

MOTION for Leave to File as Amicus Curiae, filed by Amicus National Police Association. (Attachments: # 1 Proposed Order) Noting Date 12/4/2020, (Buchal, James) (Entered: 11/13/2020)

11/13/2020

33 DECLARATION of Ed Hutchison filed by Amicus National Police

Association re 32 MOTION for Leave to File as Amicus Curiae (Buchal, James) (Entered: 11/13/2020)

11/13/2020 34
11/30/2020 35

ANSWER to 28 Amended Complaint,,, City of Seattle's Answer to Second Amended Class Action Complaint by City of Seattle.(Harrigan, Arthur) (Entered: 11/13/2020)
RESPONSE, by Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company,

Amicus National Police Association, to 32 MOTION for

Leave to File as Amicus Curiae, 29 MOTION for Leave to Participate As Amicus Curiae and Memorandum in Support Thereof. (Eakes, Patricia) (Entered: 11/30/2020)

12/04/2020

36 Stipulated MOTION Stipulation and (Proposed) Order Striking Deadline for Discovery on Class Certification Issues, filed by Defendant City of Seattle. Noting Date 12/4/2020, (Harrigan, Arthur) (Entered: 12/04/2020)

12/07/2020 37

MINUTE ORDER: The National Police Association's Motion for
Leave to Participate as Amicus Curiae, docket no. 32 , is DENIED without prejudice. The parties' stipulation to strike the deadline for discovery on class certification, docket no. 36 , is GRANTED. The Court hereby AMENDS the Minute Order Setting

Trial and Related Dates, docket no. 27 , by STRIKING the deadline of May 17, 2021, by which discovery on class certification must be completed. Authorized by Judge Thomas S. Zilly.(MW) (Entered: 12/07/2020)

12/10/2020

38 Stipulated MOTION Agreement Regarding Discovery of Electronically Stored Information and (Proposed) Order, filed by Defendant City of Seattle. Noting Date 12/10/2020, (Harrigan, Arthur) (Entered: 12/10/2020)

12/11/2020 39

ORDER granting Parties' 38 Stipulated Motion Regarding Discovery of Electronically Stored Information. Signed by Judge Thomas S. Zilly.(MW) (Entered: 12/11/2020)

12/11/2020

40 Stipulated MOTION Stipulated Protective Order, filed by Plaintiffs 12th and Pike Associates LLC, Argento LLC, Bergmans Lock and Key Services LLC, Wade Biller, Kathleen Caples, Hunters Capital LLC, Madrona Real Estate Investors IV LLC, Madrona Real Estate Investors VI LLC, Madrona Real Estate Services LLC, Northwest Liquor and Wine LLC, Olive St Apartments LLC, Onyx Homeowners Association, Matthew Ploszaj, Rancho Bravo, Inc, Redside Partners LLC, SRJ Enterprises, Sage Physical Therapy PLLC, Shuffle LLC, Magdalena Sky, Sway and Cake LLC, The Richmark Company, Amicus National Police Association. (Attachments: # 1 Exhibit Redline Document) Noting Date 12/11/2020, (Eakes, Patricia) (Entered: 12/11/2020)

12/14/2020 41

STIPULATED PROTECTIVE ORDER re Parties' 40 Stipulated MOTION. Signed by Judge Thomas S. Zilly. (MW) (Entered: 12/14/2020)

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1

2

THE HONORABLE THOMAS S. ZILLY

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON 7

8 HUNTERS CAPITAL, LLC, a Washington limited liability company, NORTHWEST

9 LIQUOR AND WINE LLC, a Washington limited liability company, SRJ

10 ENTERPRISES, d/b/a CAR TENDER, a

Washington corporation, THE RICHMARK

11 COMPANY d/b/a RICHMARK LABEL, a

Washington company, SAGE PHYSICAL 12 THERAPY PLLC, a Washington

13

professional limited liability company, KATHLEEN CAPLES, an individual,

14 ONYX HOMEOWNERS ASSOCIATION, a Washington registered homeowners

15 association, WADE BILLER, an individual, MADRONA REAL ESTATE SERVICES

16 LLC, a Washington limited liability

company, MADRONA REAL ESTATE

17 INVESTORS IV LLC, a Washington

limited liability company, MADRONA 18 REAL ESTATE INVESTORS VI LLC, a

19

Washington limited liability company, 12TH AND PIKE ASSOCIATES LLC, a

20 Washington limited liability company, REDSIDE PARTNERS LLC, a Washington

21 limited liability company, MAGDALENA

SKY, an individual, OLIVE ST

22 APARTMENTS LLC, a Washington limited

liability corporation, BERGMAN’S LOCK 23 AND KEY SERVICES LLC, a Washington

limited liability company, MATTHEW 24 PLOSZAJ, an individual, ARGENTO LLC,

25

a Washington limited liability company, RANCHO BRAVO, INC., a Washington

Case No. 2:20-cv-00983 TSZ
FIRST AMENDED CLASS ACTION COMPLAINT
JURY DEMAND

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corporation, SWAY AND CAKE LLC, a 1 Washington limited liability company,

2

SHUFFLE LLC d/b/a Cure Cocktail, a Washington limited liability company, on

3 behalf of themselves and others similarly situated,

4
5 vs.
6

Plaintiffs,

CITY OF SEATTLE, 7

Defendant.

8

9

Plaintiffs hereby allege as follows:

10

I. OVERVIEW

11

1. The rights of free speech and to peaceably assemble are enshrined in our

12 constitutional tradition. Plaintiffs support free-speech rights and support the efforts of those like

13 Black Lives Matter who, by exercising such rights, are bringing issues such as systemic racism

14 and unfair violence against African Americans by police to the forefront of the national

15 consciousness. Specifically, Plaintiffs support the free-speech rights of many of those who

16 gathered on Capitol Hill to form what has been called “CHAZ,” standing for the “Capitol Hill

17 Autonomous Zone,” or “CHOP” for “Capitol Hill Organized Protest” or “Capitol Hill Occupying 18 Protest.”1

19

2. This lawsuit does not seek to undermine CHOP participants’ message or present a

20 counter-message. Rather, this lawsuit is about the constitutional and other legal rights of

21 Plaintiffs—businesses, employees, and residents in and around CHOP—which were overrun by

22 the City of Seattle’s unprecedented decision to abandon and close off an entire city neighborhood,

23 leaving it unchecked by the police, unserved by fire and emergency health services, and

24 inaccessible to the public at large. The City’s decision subjected businesses, employees, and

25
1 This complaint primarily refers to the area as “CHOP,” and the people who participated in CHOP who are not businesses, employees, or residents of the area as “CHOP participants.”

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1 residents of that neighborhood to extensive property damage, public safety dangers, and an

2 inability to use and access their properties.

3

3. On June 8, 2020, the City of Seattle (“the City”) abruptly deserted the Seattle Police

4 Department’s East Precinct on the corner of Twelfth Avenue and E. Pine Street in Seattle’s Capitol

5 Hill neighborhood, leaving behind numerous barriers that had previously been used as a line

6 between police and protesters.

7

4. When the City abandoned the precinct and the nearby barriers, a number of

8 individuals who had been in the area took control of the barriers and used them to block off streets

9 in an area around the East Precinct.

10

5. In the days and weeks after the City abandoned the East Precinct, CHOP

11 participants occupied the public streets, sidewalks, and parks in the area at all hours of the day and

12 night. Rather than seeking to restore order and protect the residents and property owners within

13 CHOP, the City instead chose to actively endorse, enable, and participate in the occupation of

14 CHOP.

15

6. The City provided Cal Anderson Park, a public park located at the center of CHOP,

16 to CHOP for use as the staging ground supporting CHOP’s occupation of the surrounding area.

17 Supported by the City, countless CHOP participants resided in the park at all times of day and

18 night, having turned it into a tent city. At any given time, hundreds of CHOP participants camped

19 out in the park. Violence, vandalism, excessive noise, public drug use, and other crimes were

20 rampant within the park.

21

7. The City’s conduct resulted in CHOP being blocked off from public access. Among

22 other conduct detailed below, the City provided the participants with concrete barriers to use to

23 block the streets, which CHOP participants indeed used to barricade the streets and create borders.

24 These borders, at times, were guarded by armed CHOP participants who oversaw who could or

25 could not enter CHOP. As a result, the streets were barred to most all vehicular traffic, making it

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1 virtually impossible for residents and businesses to access their buildings, receive deliveries, and

2 provide goods and services to the few customers willing to enter CHOP.

3

8. The City’s conduct also resulted in the elimination of basic public safety within

4 CHOP and nearby areas. For example, the City enacted a policy under which police would not

5 enter the CHOP area except during life-and-death emergencies, and, even in those situations, the

6 response was, at best, muted and late. After a fatal shooting in the early morning of June 20, 2020,

7 for example, officers did not even approach the area of the shooting until approximately 20 minutes

8 after the shooting, and no professional medical response was available for at least 15 minutes. At

9 other times, even during life-and-death emergencies, the police acquiesced to demands from

10 CHOP participants that they abandon the area. The City acknowledged the serious safety issues it

11 created, in particular noting that there were “dangerous conditions” at night, but the City

12 nonetheless chose to maintain its policy of providing resources and support to the CHOP occupiers.

13

9. The City’s conduct enabled the widespread destruction and vandalism of private

14 property. Graffiti was and is pervasive throughout the area—it is not only on barriers, streets,

15 sidewalks, but also on nearly every private building within CHOP. Graffiti that was painted over

16 almost immediately returned, and property owners were told by CHOP participants that if they

17 dared to paint over graffiti, their buildings would be more severely vandalized or even burned to

18 the ground. The City did nothing to prevent this conduct from June 8, 2020 to July 1, 2020, but,

19 instead, actively endorsed and supported the ongoing occupation of the CHOP area and the

20 destruction of property that accompanied it. As a result, property owners and their tenants were

21 not able to fully use their properties. Property owners and tenants, for instance, had to lock and

22 barricade their garages and loading areas at risk of having CHOP participants entering and

23 vandalizing them.

24

10. The property owners, businesses, and residents in the area suffered ever-increasing

25 property damage and economic loss every day that CHOP existed in their neighborhood, all

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1 because of the City’s active support, encouragement, and endorsement of the occupation. In

2 particular, Seattle Mayor Jenny Durkan provided the CHOP participants with not just tangible

3 resources but also a de facto stamp of approval. Her tweets, interviews, and other statements made

4 it clear that the City was fully aware of what is happening, had no plan or timeline for remedying

5 the ongoing harm, and in fact viewed the occupation of Capitol Hill as something akin to a

6 perpetual block party, which the City wanted to support because of the viewpoints of CHOP

7 participants.

8

11. Plaintiffs and others repeatedly pleaded with Mayor Durkan and others to cease

9 enabling the destruction of their property and the imminent dangers posed to them and their

10 neighborhood. But the City did not listen, or did not care, and it was only after Plaintiffs had to

11 resort to litigation to make themselves heard that the City finally took action to disband CHOP

12

12. Again, this case is not about Plaintiffs’ agreement or disagreement with the

13 inspiration for CHOP, or the viewpoints expressed by the people occupying that area. Instead, it

14 is about the City’s active, knowing endorsement and support of a destructive occupation of a

15 neighborhood to the detriment of the well-being of those who live and work in that neighborhood.

16

II. PARTIES

17

13. Plaintiffs are residents, tenants, property owners, and small businesses in Seattle’s

18 Capitol Hill neighborhood that have been harmed by CHOP.

19

14. Plaintiff Hunters Capital LLC (“Hunters Capital”) is a Washington limited liability

20 company with its principal place of business in King County, Washington. Hunters Capital is a

21 real-estate development, investment, and management company, headquartered near Cal Anderson

22 Park in the Capitol Hill neighborhood with offices in the zone occupied by CHOP at 1620

23 Broadway Seattle, Washington. Hunters Capital owns and manages a portfolio of commercial,

24 multi-family residential, and mixed-use properties in the Capitol Hill neighborhood within and

25 around CHOP, including 500 E. Pike Street, 1517 12th Avenue, 401 E. Pine Street, 1000 E. Pike

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Case 2:20-cv-00983-TSZ Document 9 Filed 07/10/20 Page 6 of 65

1 Street, 900 E. Pine Street, 426 15th Avenue East, 415 18th Avenue South, 523 15th Avenue East,

2 1641 Nagle Place, and 501 E. Pike Street, in addition to other properties in the area it manages.

3 Hunters Capital has suffered economic loss from CHOP. Additionally, its property was damaged

4 and its tenants and employees were harassed.

5

15. Plaintiff SRJ Enterprises, Inc. d/b/a Car Tender (“Car Tender”) is a Washington

6 corporation with its principal place of business in King County, Washington. Car Tender is an

7 automotive repair business. Car Tender’s shop is located at 1706 12th Avenue in Seattle,

8 Washington, in the heart of Seattle’s Capitol Hill neighborhood and directly borders the zone

9 occupied by CHOP. Car Tender has been a small business since 1971 and currently has 10

10 employees. Car Tender’s shop was vandalized and broken into by CHOP participants and its

11 employees were assaulted. With access for customers cut off by CHOP, it suffered a loss of

12 business.

13

16. Plaintiff The Richmark Company d/b/a Richmark Label (“Richmark Label”) is a

14 family-owned Washington company with its principal place of business in King County,

15 Washington. Richmark Label is a label printing and manufacturing business located at 1110 E.

16 Pine Street, Seattle, Washington. Richmark Label is one of the largest manufacturing employers

17 on Capitol Hill, with over 70 employees working at its facilities on Pine Street. Due to street

18 blockages and barricades, and drivers’ fear for safety, trucks and delivery vehicles were unable on

19 multiple occasions to access Richmark Label’s manufacturing facility. In addition to its

20 manufacturing facility, Richmark Label also owns property, portions of which it leases to other

21 tenants, in or near CHOP.

22

17. Plaintiff Northwest Liquor and Wine LLC (“Northwest Liquor and Wine”) is a

23 Washington limited liability company with its principal place of business in King County,

24 Washington. Northwest Liquor and Wine operates a specialty liquor, beer, and wine store in the

25 Capitol Hill neighborhood, located on the corner of 12th Avenue and Pine Street at 1605 12th

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Case 2:20-cv-00983-TSZ Document 9 Filed 07/10/20 Page 7 of 65

1 Avenue, Seattle, Washington, directly across from the East Precinct and wholly within CHOP.

2 Customers could access Northwest Liquor and Wine because of CHOP and after the occupation

3 began in early June, the company’s sales were down approximately 70%.

4

18. Sage Physical Therapy PLLC (“Sage Physical Therapy”) is a Washington

5 professional limited liability company with its principal place of business in King County,

6 Washington. Sage Physical Therapy provides rehabilitative and therapeutic physical therapy to

7 patients from its sole offices on Capitol Hill located at 1125 E. Olive Street, near CHOP. With

8 access for clients cut off by CHOP, it suffered a loss of business, in addition to other injuries.

9 Plaintiff Kathleen Caples is the owner of Sage Physical Therapy.

10

19. The Onyx Homeowners Association (“Onyx HOA”) is a Washington registered

11 homeowners association in King County, Washington. Onyx HOA is an association of, and

12 represents, the residents of the Onyx Condominiums located at 1125 E. Olive Street, Seattle,

13 Washington. Onyx Condominiums, located near the area occupied by CHOP participants on

14 Capitol Hill, has 65 units. The building suffered property damage and theft because of CHOP, the

15 value of the owners’ property has been greatly reduced, and the owners were harassed and

16 threatened.

17

20. Plaintiff Wade Biller is the president of Onyx HOA. He is also a condominium

18 owner in the Onyx building. In addition to the injuries he has suffered as a resident and property

19 owner in CHOP, Mr. Biller was physically assaulted by a CHOP participant while attempting to

20 negotiate with CHOP participants in his capacity as President of the HOA.

21

21. Plaintiff Madrona Real Estate Services LLC (“Madrona Real Estate Services”) is a

22 Washington limited liability company with its principal place of business in King County,

23 Washington. Madrona Real Estate Services is a real-estate development and full-service real-estate

24 management company for both commercial and residential properties. Madrona Real Estate

25 Services owns or manages over 250,000 square feet of real estate in Capitol Hill, including

27 FIRST AMENDED CLASS ACTION COMPLAINT 28 Case No. 2:20-cv-00983 TSZ - 7

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1 property on Pine street and properties in and around CHOP. Madrona Real Estate Services suffered

2 economic loss from CHOP, among other injuries.

3

22. Plaintiff Madrona Real Estate Investors IV LLC (“Madrona Real Estate Investors

4 IV”) is a Washington limited liability company with its principal place of business in King County,

5 Washington. Madrona Real Estate Investors IV is a real-estate investment company, whose

6 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

7 on Pike and Pine streets. Madrona Real Estate Investors IV suffered economic loss from CHOP,

8 among other injuries.

9

23. Plaintiff Madrona Real Estate Investors VI LLC (“Madrona Real Estate Investors

10 VI”) is a Washington limited liability company with its principal place of business in King County,

11 Washington. Madrona Real Estate Investors VI is a real-estate investment company, whose

12 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

13 on Pike and Pine streets. Madrona Real Estate Investors VI suffered economic loss from CHOP,

14 among other injuries.

15

24. 12th and Pike Associates LLC (“12th and Pike Associates”) is a Washington limited

16 liability company with its principal place of business in King County, Washington. 12th and Pike

17 Associates is a real-estate investment company, whose holdings include properties located in the

18 Capitol Hill neighborhood, including in or near CHOP on Pike and Pine streets. 12th and Pike

19 Associates suffered economic loss from CHOP, among other injuries.

20

25. Plaintiff Redside Partners LLC (“Redside Partners”) is a Washington limited

21 liability company with its principal place of business in King County, Washington. Redside

22 Partners is a real-estate investment and management company, with headquarters in CHOP at 1620

23 Broadway, Seattle, Washington. Redside Partners holds investments in and manages numerous

24 properties in the Capitol Hill neighborhood, including properties in or near CHOP such as 915 E

25 Pine Street. Redside Partners suffered economic loss from CHOP, among other injuries.

27 FIRST AMENDED CLASS ACTION COMPLAINT 28 Case No. 2:20-cv-00983 TSZ - 8

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1

26. Plaintiff Magdalena Sky is a small business owner who owns and operates Tattoos

2 and Fortune. Tattoos and Fortune is a tattoo parlor and Tarot studio with a sole location at 1605 3 12th Avenue Seattle, Washington, within CHOP. Ms. Sky is the sole proprietor of Tattoos and

4 Fortune. With access for clients cut off by CHOP, Ms. Sky, through her business, suffered a loss

5 of business, in addition to other injuries.

6

27. Plaintiff Olive ST Apartments LLC (“Olive ST Apartments”) is a Washington

7 limited liability company with its principal place of business in King County, Washington. Olive

8 ST Apartments owns two apartment complexes within and right on the boarder of CHOP, located

9 near Cal Anderson Park at 1703 12th Avenue and 1114 East Olive Street, Seattle, Washington.

10 Olive ST Apartments suffered economic loss from the CHOP, among other injuries.

11

28. Plaintiff Bergman’s Lock and Key Services LLC (“Bergman’s Lock and Key”) is

12 a Washington limited liability corporation with its principal place of business in King County, 13 Washington. Bergman’s Lock and Key’s offices are located at 1714 12th Avenue, Seattle,

14 Washington, in the immediate vicinity of CHOP. Bergman’s Lock and Key provides lock and key

15 services for residential and commercial properties, normally attracting customers from around the

16 Puget Sound area to its Capitol Hill locations. Like other small business, Bergman’s Lock and Key

17 suffered economic loss from CHOP, among other injuries.

18

29. Plaintiff Matthew Ploszaj is a Seattle resident who resides in an apartment at 1210

19 E. Pine Street. He was often blocked from accessing his apartment because of CHOP and the

20 actions of CHOP participants and was forced to live elsewhere at various times during CHOP’s

21 existence.

22

30. Plaintiff Argento LLC (“Argento”) is a Washington limited liability company with

23 its principal place of business in King County. Argento owns and operates Café Argento at 1125

24 Olive Street. Argento has suffered economic loss from CHOP, among other injuries.

25

27 FIRST AMENDED CLASS ACTION COMPLAINT 28 Case No. 2:20-cv-00983 TSZ - 9

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1

31. Plaintiff Rancho Bravo, Inc. (“Rancho Bravo”) is a Washington corporation with

2 its principal place of business in King County, Washington. Rancho Bravo is a restaurant serving

3 Mexican food and is located at 1001 E. Pine St, Seattle, Washington. The location where Rancho

4 Bravo operates its restaurant was inhabited by CHOP participants who operated a makeshift

5 medical center. Access to its parking lot and the streets surrounding Rancho Bravo was obstructed

6 by CHOP participants. CHOP participants operated an unpermitted food stand on the street near

7 to Rancho Bravo’s restaurant.

8

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

9 State of Washington. The Seattle Police Department (“SPD”) is a division of the City. Jenny

10 Durkan is the Mayor and chief executive of the City, and a policymaker for the City.

11

III. JURISDICTION AND VENUE

12

33. This Court has subject-matter jurisdiction over this case under 28 U.S.C. §1331

13 because this action presents federal questions and seeks to redress deprivations of rights under

14 the United States Constitution pursuant to 42 U.S.C. § 1983.

15

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

16 giving rise to these claims arose in the Western District of Washington.

17

IV. FACTUAL ALLEGATIONS

18

A. The Creation of CHOP

19

35. On June 8, 2020, with protests ongoing near the East Precinct, the City emptied the

20 East Precinct of all weapons and valuables, and then abandoned it.

21

36. The City left behind at the precinct and in the surrounding areas large barriers that

22 had been used in previous days to try to limit the movements of protesters.

23

37. Predictably, almost immediately after the SPD abandoned the precinct and the

24 barriers, CHOP participants used the barriers to block off streets in the area and create a “no-cop”

25 zone. Initially, the blocked-off area extended to all streets within one block from the precinct.

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1

38. Without any police presence, the CHOP participants organized themselves,

2 declared the area “Free Capitol Hill,” and stationed guards by the barriers that the City had

3 abandoned, thereby creating borders for the occupied area. The area later expanded, was referred

4 to as CHAZ for several days, and eventually became known as CHOP.

5

39. CHOP’s unofficial boundaries stretched north to East Denny Way, east to 13th

6 Avenue, south to East Pike Street, and west to Broadway. It encompassed the entirety of Cal

7 Anderson Park and sixteen city blocks in all.

8

B. The Activities of CHOP Participants

9

40. After the SPD vacated Capitol Hill, the CHOP participants claimed the area as their

10 own with a physical presence and a loose form of governance and justice.

11

41. CHOP participants have maintained borders with barriers and people patrolling the

12 perimeter, as well as vehicles parked in the middle of rights-of-way.

13

42. Many CHOP participants lived on the streets and sidewalks and in Cal Anderson

14 Park, in tents such as the following:

15

16

17

18

19

20

21

22

23

43. They painted graffiti on most available surfaces, and if a property owner painted

24 over the graffiti, the graffiti was typically replaced within a few hours. CHOP participants even

25

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1 threatened business owners with retaliation if they painted over graffiti. Examples of this pervasive 2 graffiti include the following: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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1

44. CHOP participants created various unpermitted, ad hoc food dispensaries and

2 stores on public property in front of and near private residences and businesses.

3

45. CHOP participants created a “medical tent” at the Rancho Bravo restaurant under

4 a festival tent.

5

46. On occasion, CHOP participants acted as a replacement police force, including by

6 demanding that business owners release individuals who were caught committing crimes and by

7 attempting to perform their own crime investigations.

8

47. CHOP participants occupied the streets and sidewalks 24 hours a day, and had

9 speeches, debates, movies, music, and various other activities—including, in some instances,

10 illegal fireworks shows—on the streets and sidewalks. Disturbances and noise pollution extended

11 well past 10 p.m. and typically into the early morning of the next day.

12

48. CHOP participants were observed carrying guns in the public streets and parks in

13 broad daylight.

14

49. Cal Anderson Park was one of the focal points of CHOP. The approximately 7-acre

15 park, which was ostensibly owned by the City, was entirely handed over to the CHOP participants.

16 The City supported and enabled CHOP’s occupation of the park through providing

17 washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.

18

50. As a result of the City’s actions, Cal Anderson Park was transformed into a massive

19 tent city for CHOP participants, as shown here:

20

21

22

23

24

25

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1

51. Members of the public could not use Cal Anderson Park. CHOP’s control of the

2 park continued unabated until July 1, 2020. Local residents attempting to take pictures too close

3 to Cal Anderson Park were threatened by CHOP participants, who have said they would steal their

4 smartphones.

5

6

7

8

9

10

11

12

13

52. CHOP participants even built makeshift gardens on the park’s lawn to grow food

14 for CHOP. The City handed over public property in the park for this use, as shown here:

15

16

17

18

19

20

21

22

53. CHOP’s control of Cal Anderson Park was a central nuisance to local residents and

23 businesses. Many of the Plaintiffs’ properties overlook, border, or are adjacent to the park. Not

24 only were those residents deprived of their use of the park, but problems from CHOP’s

25 encampments in the park spilled over into the entire neighborhood. The hundreds of CHOP

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1 participants in the park created excessive noise, even late into the night, in violation of the City’s

2 ordinances. Participants set off fireworks at all hours of the day and night. Trash, feces, and other

3 refuse built up in the park, affecting the whole area. Worst of all, Cal Anderson Park was one of

4 the most violent areas of CHOP. Local residents saw individuals in Cal Anderson Park carrying

5 firearms.

6

C. The Effects of CHOP on Plaintiffs and the Class

7

54. The impacts on Plaintiffs and the Class were extensive. The experiences of each

8 Plaintiff are described in detail below. However, all Plaintiffs and Class members have in common

9 at least the following harms: a lack of public safety assistance and substantially impaired access to

10 and use of their properties. Lack of public-safety assistance even in life-threatening

11 circumstances.

12

55. The City’s endorsement and recognition of CHOP went so far that the SPD adopted

13 a policy and practice of not entering the area except in the case of life-threatening crimes, and even

14 then, the SPD response was weak and delayed.

15

56. On information and belief, the SPD considered the area from Denny Way to Union

16 Street and Thirteenth Avenue to Broadway to be a “no response” zone where the SPD would not

17 respond to anything but the most serious crimes.

18

57. And even in the most serious situations, the SPD’s response was unconscionably

19 delayed. As SPD Chief Carmen Best explained on June 11, 2020, as she stood next to Mayor

20 Durkan:

21

SPD has a responsibility to provide public safety services to the

22

entire East precinct and the City. The actions of a small group cannot and should not deprive an entire segment of our community from

23

public-safety services. In the first day of the SPD not having access

to the precinct, response times for crimes in progress were over

24

fifteen minutes, about three times as long as the average …. If that

is your mother, or your sister, your cousin, your neighbor’s kid that

25

is being raped, robbed, assaulted, and otherwise victimized, you’re

not going to want to have to report that it took the police three times

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longer to get there to provide services to them. The difference in the

1

amount of time could protect someone’s life and prevent a violent

2

attack.

3

58. Recent events in CHOP demonstrate that if anything, Chief Best was being

4 conservative in her description of the public-safety emergency in CHOP.

5

59. At approximately 2:20 a.m. on June 20, 2020, there were two people shot in CHOP.

6 At least one of the shootings happened at or near the intersection of Tenth Avenue and Pine Street,

7 around the corner from the abandoned East Precinct. One of the victims died before reaching the

8 hospital. The second was admitted with life-threatening injuries. No suspects have been identified

9 or taken into custody.

10

60. Raw video streamed from the area shortly after that shooting demonstrates the

11 enormity of the risk created by the City for anyone who lives or works in CHOP. That video clearly 12 captured the following:2

13

a. The video appears to start a couple of minutes after the shooting.

14

b. One shooting victim was taken to the CHOP “medic tent” located in a

15

parking lot under a festival tent.

16

c. No professional medics arrived until approximately 15 minutes into the

17

video to tend to the first shooting victim.

18

d. No police were in the area until approximately 18 minutes into the video,

19

when cars and lights and can be seen several blocks away, and police can be heard on

20

megaphones demanding that barriers be moved to allow the police to enter.

21

e. Approximately 19 minutes into the video, a small phalanx of approximately

22

8 police officers entered the area on foot and arrived in the area of the medical tent,

23

apparently for the purpose of trying to locate and extract the first shooting victim.

24

25
2 https://www.facebook.com/WWConverge/videos/297548387941384/?v=297548387941384

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1

f. The phalanx of officers was immediately surrounded, yelled at, and

2

pursued by CHOP participants.

3

g. One police car finally entered the area approximately 20 minutes into the

4

video.

5

h. The police did not engage with the crowd and promptly left the area, after

6

which CHOP participants created a human chain across the street to bar any further

7

entry.

8

i. There was a second shooting victim in CHOP located a couple of blocks

9

away. It appears that no medics or police responded at all to the location of the second

10

victim.

11

j. Approximately 35 minutes into the livestream video, the second victim was

12

placed into a plain white cargo van and presumably taken to the hospital. A voice can

13

be heard explaining that Medic One drove by but did not come to the assistance of the

14

person who ended up in the white van.

15

k. Shortly after the second victim was driven away, private citizens began

16

looking for bullet casings. No police were on the scene to perform any investigation in

17

the immediate aftermath of the shooting.

18

61. On June 21, 2020, another shooting occurred in the area at approximately 11:00 at

19 night. There was no police or medic response, and the shooting victim was transported to the

20 emergency room by private vehicle.

21

62. In a press conference with Mayor Durkan on June 22, 2020, Chief Best reiterated

22 the seriousness of the public-safety situation, stating:

23

there are countless individuals who are in the CHOP that are

24

there to engage, as the Mayor said earlier, in peaceful demonstrations. But there are also groups of individuals

25

engaging in shootings, a rape, assaults, burglary, arson, and

property destruction, and I have their police reports right

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here. [*Holding up a stack of papers*] I’m not making it up.

1

These things have happened. We cannot walk away from the

2

truth of what is happening there. This is not about politics and I’m not a politician. This isn’t a debate about First

3

Amendment rights. This is about life or death. So we need a

plan.

4

5

63. In the early hours of June 29, yet another shooting occurred in the area. This

6 shooting, at 12th and Pike, left a 16-year-old dead and a 14-year-old in critical condition.

7

64. According to reports, the shooting began when “CHOP security” opened fire on a

8 white Jeep that had crashed into the CHOP barricades. Reports indicate that over a dozen shots

9 were fired.

10

65. The City did not provide emergency medical services at the scene of the shooting

11 in the CHOP area. Instead, one of the victims was transported by private vehicle out of the CHOP

12 area and to a hospital. The other had to be taken “to a meeting point with Seattle Fire Department

13 Personnel, who then transported the victim to Harborview Medical Center.”

14

66. By the time the police reached the scene of the shooting at 12th and Pike to begin

15 an investigation, much of the key evidence had already been tampered with or lost. As the SPD

16 blotter put it, when police arrived on the scene to inspect the Jeep, “it was clear the crime scene

17 had been disturbed.” No suspects have been identified or placed into custody.

18

67. That same night, and possibly in connection with the same incident, bullets were

19 shot into the Onyx Condominium building, with at least one bullet coming within a foot of a

20 resident asleep in bed.

21

68. Over the course of nine days, there were two homicides in CHOP. There had been

22 no homicides in Capitol Hill in 2020 before CHOP started, and in all of 2019, there were only

23 three homicides in the entire Capitol Hill neighborhood.

24

25

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1

2. Impeded access to and use of property

2

69. All Plaintiffs and Class members did not have the ability to use public rights of

3 way, including streets and sidewalks, to access their homes, businesses, and properties.

4

70. CHOP participants regularly moved the City-provided barriers and other large

5 objects wherever they wished to block traffic, sidewalks, and all other manner of ingress and

6 egress.

7

71. In many cases, this meant people could not use public streets and rights-of-way to

8 enter or exit their homes or businesses, clients cannot visit businesses, and businesses could not

9 get deliveries. The difficulties were magnified for the elderly and the disabled.

10

72. The barriers and the constant presence of CHOP participants also meant that

11 residents, property owners, and businesses did not have full use of their property. If they could

12 access their property, safety necessitated that many of them keep their doors locked. Many portions

13 of property that were normally freely accessible—such as garages—had to be shut at all hours or

14 else CHOP participants would vandalize them.

15

73. Garbage and recycling services could not enter the area due to the myriad of

16 barricades and CHOP border guards, forcing residents and businesses to pile up refuse without any

17 idea when they might be able to discard it.

18

74. Residents and businesses in the area were unable to receive deliveries at their homes

19 because delivery companies could not or would not enter CHOP and the surrounding area because

20 of barriers and safety concerns.

21

75. Residents in and near CHOP were forced to endure loud noises, music, and even

22 fireworks at all times of the day and night.

23

76. Residents in and near CHOP did not have free and safe access in or out of their

24 homes.

25

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1

77. Businesses were unable to operate normally, or even open, because of blocked

2 access and concerns for the safety of their suppliers, employees, and customers.

3

78. All of this is caused extensive economic and other harm to Plaintiffs and all other

4 members of the Class.

5

79. As Chief Best stated during a joint press conference with Mayor Durkan on the

6 afternoon of July 1, 2020:

7

If you have watched the news footage, you have seen how absolutely

8

devastating the damage to this neighborhood is. I can tell you personally, after walking through the area, we walked the full perimeter,

9

I was just stunned by the amount of graffiti, garbage, and property

destruction. As we walked around the neighborhood, many people were

10

coming out of their apartments and homes and thanking the officers

profusely for being there and for helping to clean out the area. So, we

11

don’t even know how much trauma people were experiencing because

of what was happening in that area. 12

13

3. Plaintiffs’ individual stories

14

80. The impact of CHOP on residents, businesses, and property owners is best seen

15 through the stories of Plaintiffs, who are suffering from the City’s policies every day.

16

81. Each Plaintiff and the Class has suffered—and continues to suffer irreparable

17 economic and non-economic injury as a direct result of CHOP participants’ presence on Capitol

18 Hill and its aftereffects. The City’s support for CHOP enabled, aided, and abetted the ongoing

19 harm to each of the Plaintiffs and members of the Class.

20

82. Although the City cleared CHOP on the morning of July 1, 2020, Plaintiffs and the

21 Class have continued to suffer harm due to restrictions in the area resulting from the existence of

22 CHOP, the continued public perception of the area as dangerous and unstable, and lost business

23 that may never return. Plaintiffs expressly reserve the right to seek recovery for such ongoing

24 harm.

25

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1

83. Plaintiff Car Tender. Plaintiff Car Tender—a local small business with one

2 location— has suffered a dramatic drop off in its auto-repair business since the establishment of

3 CHOP. Since early June 2020, business revenues declined around 40% from the prior months of

4 April and May 2020. This drop-in sales actually understates Car Tender’s losses, however, as April

5 and May’s revenues were already lower due to the height of the COVID-19 pandemic. In late May

6 2020, Car Tender’s revenues began an upswing coming out of the shutdown, which was suddenly

7 interrupted by the sharp drop in customers caused by CHOP.

8

84. Car Tender’s loss of business revenue is a direct result of CHOP. Access to the

9 shop has at times been substantially impeded due to barricaded streets. Further, customers told Car

10 Tender that they would not bring their cars into the shop, out of fear of CHOP’s location just down

11 the street from Car Tender. Customers even came to the shop only to immediately turn around and

12 leave, because they were fearful to leave their cars at Car Tender’s location. Because of the City’s

13 enablement of CHOP, Car Tender is struggling to make ends meet.

14

85. Car Tender’s premises were also vandalized by CHOP participants. CHOP

15 participants tore down the fence around Car Tender’s car lot, permanently damaging the cement

16 post such that an entire new fence will need to be constructed. They painted and vandalized with

17 graffiti the side of Car Tender’s building. Car Tender was fearful that if the company tried to cover

18 up the graffiti they would face reprisals from CHOP participants, as CHOP participants threatened

19 to burn down other properties in the area when owners attempted to cover or clean up graffiti.

20

86. Car Tender’s customers were understandably concerned for their safety, and with

21 good reason. Indeed, Car Tender’s shop was recently broken into by a man who assaulted the son

22 of one of Car Tender’s owners with a knife. The details of the incident demonstrate the extreme

23 risk of harm to which the City has exposed Plaintiffs and the Class.

24

87. On June 14th at around 9:30 p.m., a person broke into Car Tender’s building, armed

25 himself with a knife and a spike that he found inside the building, and lit a fire in the shop. After

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1 receiving a call from a neighbor alerting them to the break-in, Car Tender’s owner and son called

2 9-1-1 and then went to the premises themselves, where they found the shop’s garage had been

3 broken into. They found that the property had also been vandalized with Purell hand sanitizer,

4 which the intruder had dumped everywhere to use as fuel for the fire he had started. That fire was

5 still burning when the owner and his son arrived, but they were able to extinguish it. The intruder

6 was still on the premises, however, and he accosted the owner’s son with the knife and spike and

7 abruptly assaulted him by hitting him in the chest.

8

88. Although blindsided by the intruder’s sudden unprovoked attack, the owner and his

9 son were able to wrestle the intruder to the floor in a scuffle. The intruder meanwhile tried to cut

10 the son’s femoral artery and landed two large cuts to his clothing on the side of his leg. He also

11 repeatedly attempted to stab the son with the spike.

12

89. After subduing the intruder, Car Tender’s owner called 9-1-1 again, reporting the

13 arson, burglary, and assault, requesting police assistance at the scene. Other neighbors also called

14 9-1-1. But, despite the multiple 9-1-1 calls. the police never responded to the scene that evening.

15

90. Several CHOP participants on the street who witnessed the incident approached the

16 shop and demanded the release of the apprehended intruder. Car Tender’s owner at first insisted

17 that he was waiting for the police to come to the scene. An angry mob of CHOP participants,

18 perhaps as many as 500 although possibly more, gathered around Car Tender’s fence and broke it

19 down, insisting on the release of the intruder. Members of CHOP mob insisted that the police

20 would never dare respond. Faced with a threat of mob violence, Car Tender’s owner and son

21 handed the intruder over to CHOP participants.

22

91. Because the police refused to protect Car Tender’s property from burglary and

23 arson, Car Tender’s owner was forced to sleep at the shop in an effort to protect it. Car Tender’s

24 owner tried to contact Mayor Durkan’s office to report his concerns as a resident and small

25 business owner but received no response.

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1

92. Car Tender’s experience was not unique. Other local businesses also suffered from

2 the City’s actions.

3

93. Plaintiff Richmark Label. Plaintiff Richmark Label is a local family-owned

4 business on Capitol Hill that runs label-printing operations out of a manufacturing facility on Pine

5 Street, directly adjacent to CHOP. Richmark Label’s business has been negatively affected as a

6 direct consequence of CHOP.

7

94. CHOP frequently blocked access to the 11th Avenue side of Richmark Label’s

8 building, where Richmark Label maintains a loading dock for receiving deliveries and shipping.

9 Richmark Label must receive deliveries on an ongoing basis in order to maintain its business as

10 well as make shipment of its products. Richmark Label’s ability to use its loading dock was 11 substantially impeded, as the 11th Avenue access was frequently blocked by barricades, or because

12 CHOP participants engaged in intimidation tactics, or because of other CHOP activities. Some

13 delivery drivers reported to Richmark Label that they would not even attempt delivery to their

14 building, because it is unsafe. Several delivery drivers who attempted delivery were stopped and

15 accosted by CHOP participants. Richmark Label’s usual shippers refused to deliver and UPS

16 recently elected not to come and pick up a pallet of wine labels for shipment, one of Richmark

17 Label’s largest sources of business. On other occasions, labels shipped late, incurring costs and

18 straining Richmark Label’s business relationships with its customers.

19

95. The City’s support of CHOP put Richmark Label’s business at risk, as well as the

20 livelihood of its over 70 employees.

21

96. This loss to business is not the only harm Richmark Label is suffering due to CHOP.

22 Richmark Label owns its facilities, a historic building from 1927, on which the company paid to

23 have an artistic mural painted as a gift to the whole Capitol Hill community. That mural was

24 vandalized by CHOP participants beyond repair, whereas before CHOP’s occupation there had

25

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1 only been minor instances of occasional graffiti. Now the wall will have to be repaired and

2 repainted.

3

97. Richmark Label also owns a parking lot on the 11th Avenue side of the building. It

4 rents the parking spaces during non-business hours. Richmark Label was forced by CHOP to shut

5 the parking lot down because the roads for accessing the parking lot were blocked and customers

6 are and were afraid of entering the area. The company is receiving none of the usual rental income

7 it typically receives from the parking spaces. The parking lot also typically serves as customer

8 parking for Richmark Label and several of its tenants who rent space in the company’s building.

9 But, due to CHOP and its aftereffects, both Richmark Label and its tenants are being deprived of

10 customer parking.

11

98. Unauthorized cars also parked in Richmark Label’s lot. Richmark Label contacted

12 towing companies, but all refused to tow the cars because CHOP made the area unsafe. Richmark

13 Label called the police on multiple occasions regarding the unauthorized cars parked on their

14 property, but the police would not act. Richmark Label called 9-1-1 regarding the unauthorized

15 cars trespassing on their property, only to be told at least twice that SPD was not responding to

16 calls in the area.

17

99. Like Plaintiff Car Tender, Richmark Label was threatened with violence by CHOP

18 participants. When CHOP first arose, Richmark Label allowed a local news crew to access its roof

19 to film the protests and CHOP. SPD officers then also accessed Richmark Label’s roof to assess

20 the situation, where they were photographed by CHOP participants. Those photographs were then

21 posted online, leading to a social media frenzy against the company. Subsequently, Richmark

22 Label’s employees reported that they did not feel safe coming to work, because of the threat of

23 harassment and violence from CHOP participants. CHOP participants set up cones across 11th

24 Avenue, which must be crossed to access Richmark Label’s building. CHOP participants stopped

25 people and required them to answer questions about who they are and what they were doing in the

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1 area before letting them pass. The result is that customers, shippers, and employees were scared to

2 even enter the area.

3

100. Richmark Label was in contact with the Mayor’s office, but the office did not return

4 the company’s calls, offer any assistance, or provide any opportunity to challenge the City’s

5 decision to authorize the ongoing occupation of the CHOP area. The City’s support of CHOP

6 through encouragement and material support enabled CHOP’s threat to Richmark Label’s

7 business.

8

101. Plaintiff Northwest Liquor and Wine. Northwest Liquor and Wine—a one-location

9 store specializing in high-end wine, beer, and spirits—is yet another local small business that

10 suffered as a result of the CHOP occupation. After record sales in May 2020, the store had its

11 worst month in June 2020 since opening at that location in 2012. In June 2020, the company’s

12 sales were down approximately 70% from average.

13

102. Customers are unable to visit the store because the surrounding streets have been

14 blocked off to traffic. Northwest Liquor and Wine has access to an adjacent parking garage, but

15 they have been forced to close it to prevent CHOP participants from camping out in it and even

16 starting fires. CHOP barricades also meant that suppliers were unable to make deliveries.

17

103. The owners and employees did not feel safe, as there were disturbances in the store

18 and people on the streets nearby carrying guns. Northwest Liquor and Wine normally maintains

19 around 4 to 6 employees. Due to CHOP, its employees were understandably too scared to come to

20 work out of concern for their safety.

21

104. Plaintiff Sage Physical Therapy. Plaintiff Sage Physical Therapy (“Sage”) is

22 another small business that suffered losses because of CHOP. When CHOP started in early June,

23 clients immediately stopped coming, saying that they are scared to come near CHOP. Additionally,

24 the few clients willing to venture near CHOP found Sage’s offices to be inaccessible, as many of

25 the nearby streets have been blocked, and even on the few streets in the area that were not been

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1 blocked, the City ceased enforcing parking restrictions, allowing vehicles to remain parked

2 indefinitely. As a result, there was no parking and Sage’s offices were therefore not accessible to

3 its clients. The lack of access is especially hard on Sage’s clientele, as many are seeking therapy

4 for injury and are unable to walk far. Sage’s clients cancelled appointments because of CHOP.

5

105. Even one of Sage’s patients who resides within walking distance of Sage’s offices

6 was unable to access Sage’s building due to CHOP. Sage has a patient who resides in an apartment

7 building inside CHOP. The patient is on crutches from traumatic leg injury. She resides only a

8 short distance from Sage, but the City enabled CHOP to place barriers across sidewalks, and

9 different barricades popped up near Sage every day. Sage’s injured patient was not able to navigate

10 around the barriers and the patient reported to Sage that she was upset about not being able to get

11 to her much-needed therapy appointments.

12

106. Sage’s owner also feared violence from the presence of CHOP. After CHOP arose,

13 she observed a van parked outside Sage’s office with an automatic weapon in the front seat and a

14 plywood barrier and padlock so that the back of the van was not visible. Sage’s owner is aware

15 that CHOP participants nearby reportedly highjacked vehicles. Sage’s owner is also aware of an

16 incident involving another local business owner known to Sage’s owner. After that business

17 owner’s store was closed for the day, a CHOP participant demanded to use the store’s restroom,

18 exposed himself to the female owner, and then attempted to assault the business owner, who

19 fortunately was able to flee the scene. These incidents of violence against local businesses,

20 compounded with a loss of business revenue, caused Sage’s owner physical stress, forced her to

21 keep the office door locked at all time making business impossible, and acerbated her

22 hypertension.

23

107. One of Sage’s clients reported that he was scared to come to his appointment

24 because of CHOP, but decided that because he was in so much physical pain, he needed his therapy

25 treatment. He parked near 11th Avenue for his appointment. He ended his appointment early,

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1 however, because he was concerned about a passing protest of CHOP participants. Upon returning

2 to his car, he found that all four tires had been slashed by CHOP participants. He reported to Sage

3 that, even though he suffers from pain and needs treatment, he would not attempt to come to future

4 appointments because of CHOP.

5

108. Adding to Sage’s difficulties, Sage’s internet cable was cut, and Sage was unable

6 to schedule an appointment for a Wave Cable technician to come fix the internet access because

7 of the presence of CHOP. This put Sage at imminent risk, as Sage’s security cameras—much

8 needed under the current circumstances—require internet access and were therefore inoperable.

9

109. To date, Sage has lost considerable revenue from patient cancellations due to

10 CHOP, which places considerable strain on a small business like Sage. Around 60% of patients

11 canceled their appointments.

12

110. Sage employs three physical therapists and one personal trainer. Their livelihoods

13 were threatened by CHOP. Sage’s company motto is: “Unapologetically fighting for good.” All

14 of its employees are supporters of Black Lives Matter and pride themselves on providing a place

15 of inclusivity and respect. The City did not listen to their concerns.

16

111. Sage’s owner wrote to Mayor Durkan to complain about the current situation, as

17 well as the difficulties CHOP caused for many of Sage’s disabled clients. That letter reads: “My

18 business Sage Physical Therapy is located at the corner of 12th Ave & E. Olive St within the

19 CHAZ footprint. I have patients that live in the CHAZ neighborhood that are on crutches due to

20 their injuries. They need physical therapy but they can’t get to my office because they can’t

21 navigate the barricades. The sidewalks are blocked with heavy barricades. My patients aren’t able

22 to access the disabled parking and loading zones because non-disabled people are parking there.

23 People aren’t able to receive the care they deserve. The roads and sidewalks need to be cleared. I

24 would like to remind you about the Americans with Disabilities Act. Blocking the road and

25 sidewalk is against the ADA. This current environment on Capitol Hill is unacceptable!!! Let’s

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1 not forget about people with disabilities. As a business owner, I feel abandoned by the city. This

2 is unacceptable. The City of Seattle is violating ADA regulations.” The Mayor did not respond.

3

112. Plaintiff Magdalena Sky (Tattoos and Fortune). Plaintiff Magdalena Sky is an

4 activist and supporter of Black Lives Matter. Ms. Sky is the sole proprietor of Tattoos and Fortune.

5 Ms. Sky is autistic and has worked tirelessly for years using her unique artistic skills to support

6 and grow her business. Her business is her own safety net and primary source of income. CHOP

7 ripped that business out from under her feet.

8

113. Like many other local businesses, Tattoos and Fortune is sinking because of the

9 City’s support of CHOP. Ms. Sky’s tattoo and fortune telling services depend on regular client

10 access to its Capitol Hill studio. Tattoo and Fortune’s studio is within CHOP, which made client

11 access impossible. The barricades and encampments blocked both vehicle and foot access to the

12 studio, as well as delivery of vital business supplies, just as they blocked the roads, parking,

13 doorways, and driveways of many local businesses. As a result, Ms. Sky was forced to close

14 Tattoos and Fortune’s doors. Without clients, Tattoos and Fortune cannot generate any revenue.

15 In addition, Tattoos and Fortune suffered from the lack of trash service, access for emergency

16 services, and police protection. Even if Ms. Sky’s clients had access to the studio, many were

17 fearful to come because of CHOP. To reach her business, her clients would have had to cross

18 barricades that CHOP participants set up, where they might be stopped, questioned, and/or

19 harassed by CHOP participants, as others were.

20

114. Ms. Sky herself witnessed theft and looting from other local businesses and feared

21 CHOP participants might steal and loot from her business, should she even try to open her studio’s

22 doors. On one occasion, Ms. Sky was followed and harassed, like so many others have been due

23 to the rise in harassment and sexual assault in the area since CHOP began. The fear of violence

24 caused Ms. Sky stress, exacerbated by her autism. The City ignored her concerns, as with the

25 mental health of many local residents and business owners. Her business—her primary means of

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1 livelihood—is losing all its revenue. Some of her clients may never return, as they canceled

2 appointments and began seeking tattoo and fortune services elsewhere.

3

115. Capitol Hill is a diverse neighborhood, known for its minority presence and as a

4 center for Seattle’ LGBTQ residents. Many small business owners in the area are minority-owned

5 and suffering loss of property and business from CHOP, just as Tattoos and Fortune is. The City

6 and CHOP did not respond to concerns of small businesses like Ms. Sky’s Tattoos and Fortune.

7 Ms. Sky, along with other local business owners, had no forum in which to voice her concerns and

8 try to stem her businesses losses accruing each day CHOP and its aftereffects continue.

9

116. Plaintiff Bergman’s Lock and Key. Plaintiff Bergman’s Lock and Key is a small

10 business that has operated on Capitol Hill since 1956.

11

117. Bergman’s Lock and Key’s employees were not safe to come to work due to CHOP.

12 Several on their way to or from work were followed by CHOP participants wielding baseball bats,

13 who threatened them not to come into the area. To protect its property from CHOP participants,

14 Bergman’s Lock and Key was forced to board up its premises. Its building was tagged with graffiti

15 and vandalized. Because CHOP became more dangerous as the days progressed, the company

16 closed around 3:00 p.m., two and half hours before its normal 5:30 p.m. closing time.

17

118. Bergman’s Lock and Key is suffering financially. Its customers cannot access the

18 store due to roadblocks, barricades, and lack of parking caused by the City’s support of CHOP.

19 Other customers are simply too scared to come, because of Bergman’s Lock and Key’s proximity

20 to the CHOP zone. Customers called citing their fears and the company was forced to refer them

21 to competitor businesses outside of the CHOP area. Bergman’s Lock and Key’s revenues declined

22 in June 2020 by 60% due to CHOP. Bergman’s Lock and Key was able to continue working as an

23 essential business during the COVID-19 shutdown, but CHOP stopped nearly all customers from

24 coming in. Business deliveries and shipments were also routinely delayed.

25

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1

119. The City actively supported CHOP participants near Bergman’s Lock and Key. The

2 City provided cleaning stations for CHOP participants, large stainless-steel sinks, and portable

3 toilets.

4

120. Bergman’s Lock and Key tried to complain to the City, but received no response.

5

121. Plaintiff Matthew Ploszaj. Plaintiff Matthew Polszaj has lived for approximately 8

6 years in an apartment he leases at 1210 E. Pine Street. His residence was within CHOP, next to

7 the Seattle Police Department’s East Precinct.

8

122. During the existence of CHOP, there were several times that Mr. Ploszaj was unable

9 to access his apartment because of obstructions created by CHOP and CHOP participants. Those

10 obstructions included people, physical barriers, camping tents, festival tents, makeshift

11 “storefronts,” and other structures on the streets and sidewalks around his apartment building.

12

123. Because of these obstructions and because he feared for his safety, Mr. Ploszaj was

13 forced on several occasions during the existence of CHOP to leave the area and stay elsewhere in

14 Seattle.

15

124. Mr. Ploszaj’s apartment building was broken into four times during the existence

16 of CHOP, even though it had never been broken into at any other time during his previous 8 years

17 at that address. The Seattle police were contacted each time the apartment was broken into, but

18 the police did not respond on any of those occasions.

19

125. On the evening of June 29, 2020, an apartment in Mr. Ploszaj’s building was

20 burglarized. Mr. Ploszaj and his neighbor contacted the police after the burglary, at approximately

21 10:30 p.m. Police told them that they would not respond to the building because of its location

22 within CHOP and requested that Mr. Ploszaj and his neighbor meet them at 20th and Madison

23 (more than 8 blocks away) to make a report. One of the residents reported to that location. After

24 an hour had passed since their initial phone call, no police had responded, and Mr. Ploszaj and his

25

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1 neighbor called police again. They were able to make a report on the phone during this second

2 phone call, but no officers responded to investigate.

3

126. On June 25, 2020, a CHOP participant climbed atop Mr. Ploszaj’s building and

4 threatened to kill himself. Mr. Ploszaj called 9-1-1 numerous times to seek assistance. He was

5 asked whether he wanted to meet an officer somewhere outside CHOP because police would not

6 respond to his address. Mr. Ploszaj declined and continued to call 9-1-1 several times during the

7 90 minutes that the individual was threatening suicide. The 9-1-1 operators thanked him for the

8 updates but police never responded to assist.

9

127. Plaintiff Argento LLC. Plaintiff Argento owns and operates Café Argento. Argento

10 suffered lost income and business because of CHOP. During the existence of CHOP, the presence

11 of numerous CHOP participants wielding guns forced Argento to open later and close earlier

12 because of concerns for the safety of Argento employees and customers.

13

128. Argento customers were also unable to access the café, or were reluctant to come

14 to the café, during the existence of CHOP, because of the numerous blockades and other obstacles

15 on the public streets and sidewalks outside the café. Customers and employees were also harassed

16 on public streets and sidewalks by CHOP participants, and employees were often too afraid to

17 come to work.

18

129. Access to the café for the disabled was especially difficult because of the numerous

19 blockades and other obstacles placed and created by CHOP participants. Argento’s owner, Faizel

20 Khan, contacted the Seattle Department of Transportation about the inaccessibility for disabled

21 persons, but the Department of Transportation did nothing to help improve the access.

22

130. CHOP participants frequently came into the café in order to pressure Mr. Kahn and

23 his employees to support the political views of CHOP and CHOP participants.

24

131. CHOP participants regularly demanded to use the café restrooms and often refused

25 to leave, and on occasion left behind used needles in the bathroom.

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1

132. Mr. Kahn called 9-1-1 four times regarding incidents at the café during the

2 existence of CHOP, but he was told that police would not respond to his area unless there was a

3 violent incident.

4

133. CHOP participants regularly deposited human waste and other waste on and in the

5 streets, sidewalks, buses, patios, doorways, and other areas around Café Argento.

6

134. During the existence of CHOP, Argento was unable to use City services for trash

7 and recycling, and could not receive package deliveries from UPS, Federal Express, or Amazon.

8

135. Plaintiff Onyx HOA. Plaintiff Onyx HOA is an association of Capitol Hill residents

9 and condo owners in the Onyx Condominium building. The HOA and its residents suffered harm

10 from CHOP. The Onyx Condominium’s residents felt unsafe and were constantly barraged by

11 excessive noise, fireworks, and other nuisances. The building was subject to graffiti and other acts

12 of vandalism at the hands of CHOP participants. The HOA and its residents called 9-1-1, but

13 received no response or direction from the City. The HOA’s insurer threatened to raise rates and

14 premiums if CHOP was not disbanded. Tenants made plans to leave, threatening the funding of

15 the HOA. All tenants have lost value in terms of property values as a direct result of the City’s

16 support of CHOP.

17

136. The Onyx Condominiums are on the border of CHOP. As a result, Onyx

18 Condominium residents’ access to their own homes was impeded, due to barricades on the public

19 streets. For example, the president of Onyx HOA, individual Plaintiff Wade Biller, was stopped

20 by CHOP participants at the barricades and told he was not allowed to drive through. He was

21 stopped by a CHOP participant while trying to drive down 12th Avenue to access his home. At

22 other times, so-called “security” for CHOP came to the barricades and offered to escort him into

23 the area to access his home so that CHOP participants would not vandalize his car.

24

137. CHOP participants stole an expensive compact dumpster bin belonging to Onyx

25 HOA. Onyx HOA’s president, Mr. Biller, demanded the bin back, but CHOP participants refused

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1 to return it. During negotiations for return of the bin, Mr. Biller was assaulted by a CHOP

2 participant who violently kicked him in the back as he tried to leave the scene. The HOA president

3 called the police, but the police did not respond to the incident of battery and assault for more than

4 90 minutes, by which point the perpetrator was long gone. Eventually, when CHOP participants

5 had access to City-owned barricades to encircle CHOP, the compactor bin was returned.

6

138. Onyx HOA was forced to hire additional security to protect the property and its

7 residents from the CHOP participants. At any time, two to four armed guards had to be present, as

8 some CHOP participants in the area were violent and armed with guns. The HOA’s residents lived

9 under constant fear and threat to their wellbeing and property.

10

139. Mr. Biller, in his capacity as Onyx HOA’s president, wrote to Mayor Durkan on

11 June 11, 2020, about the plight of the building’s residents. He wrote: “We are fending for ourselves

12 as residents and businesses in the Capitol Hill neighborhood. We have had to hire private security

13 to help keep tabs on the escalating issues . . . . I ask that you take a strong stance and allow the

14 police to reclaim our streets for the residents who live here and don’t [want] to become part of this

15 anti-police and anti-government movement.” Mayor Durkan did not respond or provide any

16 opportunity to challenge the City’s policies supporting the occupation of the CHOP area.

17

140. In the early morning hours of June 29, bullets were shot into the Onyx building,

18 with at least one coming within a foot of a resident asleep in bed.

19

141. Madrona Real Estate Plaintiffs. Plaintiffs Madrona Real Estate Services, Madrona

20 Real Estate Investors IV, Madrona Real Estate Investors VI, and 12th and Pike Associates LLC

21 (collectively “Madrona Real Estate”) suffered economic loss from CHOP, including in the form

22 of reduced rents, property damage, and a decline in property values. Their tenants—Capitol Hill’s

23 local residents and businesses—were also harmed and harassed.

24

142. Madrona Real Estate owns and/or manages multiple residential and commercial

25 buildings on Capitol Hill in and around CHOP. The presence of CHOP greatly reduced the value

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1 or property in what was, until recently, one of the most popular and expensive neighborhoods in

2 Seattle.

3

143. A resident in a building managed by Madrona Real Estate recently called 9-1-1 to

4 respond to an incident of violence near Madrona Real Estate’s building at 1414 12th Avenue. The

5 resident had witnessed from her condo’s patio a fight in the street occurring at or near the

6 intersection of 12th Avenue and Union. The resident saw what appeared to be a man and a woman

7 fighting over a child, causing the woman to run into a nearby building and barricading the door to

8 block the assaulting man. The resident called 9-1-1, who took her name and number. She waited

9 for hours, but police never responded to the incident or called her back. This is just one example

10 of the lawlessness the City enabled in the area. The same resident normally walked her dog in the

11 neighborhood, but was hesitant to leave her residence. She witnessed CHOP participants openly

12 doing hard drugs on the street around her building with impunity due to the lack of any SPD

13 presence.

14

144. The same building at 1414 12th Avenue managed and owned by Madrona Real

15 Estate was broken into. It was vandalized in various ways, including by pulling out pipes. In one

16 instance, the fire alarm was activated, which set off the sprinkler system (causing evacuation of

17 the building’s over 100 residents and causing flooding in the building garage). Residents also

18 reported that boxes and other items were stolen. During the CHOP occupation, an individual

19 trespassed on the property and defecated in building’s lobby.

20

145. At other locations in the area, Madrona Real Estate’s residents reported that their

21 condos were broken into or burglarized by CHOP participants. CHOP participants harassed

22 residents, vandalized the Madrona Real Estate’s property, and left human feces on multiple

23 premises.

24

146. SPD refused to help Madrona Real Estate protect private property or otherwise to

25 help address these problems. At considerable expense, Madrona Real had to hire increased private

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1 security to protect its residents and property. At the building where the fire system was vandalized,

2 Madrona Real Estate incurred considerable expense in fixing the damage to property and had to

3 pay for a fire watch to be instituted.

4

147. On the morning of June 23, 2020, one of Madrona Real Estate’s commercial

5 tenants, a restaurant located at 12th Avenue and Pike Street, near but not directly in the CHOP

6 blockaded area, was attempting to access its location in an effort to try to reopen. However, the

7 entrances and stoop area in front of the restaurant were entirely blocked by an encampment erected

8 by a CHOP participant. The tenant called the police, asking for assistance in removing trespassers

9 from its private property, so that it could access and open the property. The police said that they

10 would not respond because they “are not allowed to come within two blocks of CHOP”.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

148. Clearly, the City’s refusal to even respond to assaults in the neighborhood, let alone

25 take any measures to ensure public order and access, detracted from the area’s desirability for

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1 current and potential residents and businesses. At a new property Madrona Real Estate has opened

2 in the area with 45 residential units, only 3 have been leased. Up until the emergence of CHOP the

3 area was among the trendiest location for residents, but, since the emergence of CHOP, Madrona

4 Real Estate has suddenly had no interest in the 42 unleased units, because no one is interested in

5 moving to the area.

6

149. Madrona Real Estate’s residents and tenants face other hardships as well. Many of

7 the area’s millennial residents regularly shop online, but, according to Madrona Real Estate’s

8 residents and tenants, Amazon would not deliver packages in area, due the barricaded streets and

9 presence of CHOP participants. The inability to purchase or ship through Amazon is even more

10 acutely felt in the midst of the COVID-19 pandemic, when many people rely on deliveries to safely

11 deliver food, medicine, and other essential items.

12

150. Most of Madrona Real Estate’s commercial tenants wanted to open but were unable

13 to do so, because they were fearful of CHOP, had no way of attracting customers, and/or could not

14 be accessed due to blocked streets. Unable to generate revenue, many of these tenants asked

15 Madrona Real Estate for rent relief. Many are small, locally owned stores. Madrona Real Estate

16 has been giving concessions in the form of free rent, resulting in economic loss, but even so many

17 of the small commercial tenants are still facing bankruptcy.

18

151. The City’s policies with respect to CHOP have resulted in other sources of

19 economic loss to Madrona Real Estate. For example, Madrona Real Estate operates a parking

20 garage near CHOP. But, since the occupation of the CHOP area started, nearly no one is coming

21 to the area to shop or dine. Parking revenue in June 2020 was only a small fraction of the average.

22

152. Madrona Real Estate complained to the City and even sent a letter to Mayor

23 Durkan. Mayor Durkan did not respond or acknowledge the plight of the many residents of

24 Madrona Real Estate services, let alone provide any recourse to challenge the City’s policies and

25 conduct.

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1

153. Plaintiff Hunters Capital. Plaintiff Hunters Capital is a real-estate company that

2 owns or manages multiple residential, commercial, and mixed-use buildings on Capitol Hill in and

3 around CHOP. Like Madrona Real Estate, the presence of CHOP is causing economic injury to

4 Hunters Capital, including loss of revenue, damage to property, and decline in property value.

5 Hunters Capital has recently had investors back out of Capitol Hill development projects, citing

6 CHOP as the reason to withdraw. Every day the City supported the ongoing occupation of CHOP,

7 Hunters Capital incurred further irreparable harm.

8

154. Hunters Capital property and employees were also threatened by CHOP

9 participants. For example, a Hunters Capital maintenance employee was recently attempting to

10 clean up CHOP graffiti at a Hunters Capital building located near 10th Avenue and Pike Street at

11 around 7:00 am in the morning. As he started to paint over the graffiti, the worker was accosted

12 by a group of CHOP participants. The participants ordered him to stop removing the graffiti and

13 threatened to burn the building down if he did not comply. Because of the threats, the maintenance

14 worker left without painting over the graffiti, emotionally distraught due to the threats of violence

15 and arson.

16

155. Hunters Capital’s residential tenants found that the area around CHOP was

17 unlivable. For example, they reported numerous noise and safety concerns. Although the City has

18 a noise ordinance, it was not enforced in and around CHOP. CHOP participants violated the

19 ordinance late into every night, even setting off fireworks into the early hours of the morning.

20 Hunters Capital’s residential tenants simply could not sleep and were deprived of their right to

21 quiet enjoyment of their homes. Hunters Capital wrote to the City repeatedly, but the City did not

22 respond to the concerns or provide any recourse or ability to challenge the City’s policies or

23 conduct with respect to CHOP.

24

156. Hunters Capital’s residential tenants also reported concern for their physical safety.

25 Many who used the local Cal Anderson Park for recreation or to walk their pets could not do so

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1 because of safety concerns and rampant public drug use. Incidents of assault and harassment

2 occurred in the area. Hunters Capital’s residents recently witnessed a peaceful individual forcefully

3 removed from the area by CHOP mobs. Female renters in particular had reported concerns about

4 their personal safety, in light of numerous reported instances of sexual assault within CHOP. Some

5 residential tenants have threatened to break their leases at properties owned by Hunters Capital

6 because of the extensive problems created by CHOP.

7

157. Hunters Capital’s commercial tenants are also suffering. Many reported that they

8 could not open, because they feared doing so would expose them to looting and arson. Many

9 tenants witnessed assault, theft, and looting. These commercial tenants were forced by CHOP to

10 close and board up their stores in order to protect them. Some commercial tenants physically could

11 not open under any circumstances, as CHOP participants blocked store entrances, including by

12 setting up residential areas for CHOP participants on public streets and sidewalks with tents.

13 Hunters Capital’s commercial tenants are struggling. Many are small businesses and storefronts

14 that depend on visitors coming to Capitol Hill. Many currently cannot pay their rent as a direct

15 consequence of CHOP and its aftereffects.

16

158. Other Hunters Capital commercial tenants with office space in the area reported

17 that they are and were unable to come to work at their office space, because of blocked access and

18 fear of CHOP participants. Additionally, the commercial office tenants reported that the noise

19 issues were so serious that they and their employees were unable to use their office space for work.

20 Loud speeches and chanting at all hours of the day made normal working conditions impossible.

21 The vast majority of Hunters Capital commercial-office tenants report that they and their

22 employees were simply unable to come to work at all.

23

159. Hunters Capital’s tenants have already begun to leave because of CHOP, and others

24 cannot pay rent. Every day that passes more of the company’s tenants leave the area, at

25 considerable loss to Hunters Capital. Further, there has been no interest from prospective tenants.

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1 As long as CHOP and its aftereffects remain, nearly no one is interested in relocating to the Capitol

2 Hill neighborhood.

3

160. Plaintiff Olive ST Apartments. Olive ST Apartments is another small business on

4 Capitol Hill that struggled because of CHOP. Olive ST Apartments owns two apartment buildings

5 close to Cal Anderson Park. Previously a desirable location for renters, life for Olive ST

6 Apartments’ tenants became unlivable. The tenants were terrified by CHOP participants carrying

7 guns, in addition to the rampant violence, harassment, and vandalism within CHOP. Olive ST

8 Apartments’ owner was videotaped and harassed while trying to move a garbage dumpster several

9 blocks outside of CHOP just so the garbage could get picked up.

10

161. Due to safety concerns, Olive ST Apartments was forced to hire private security.

11 Nevertheless, Olive ST Apartments’ buildings were covered with graffiti multiple times. The

12 company tried cleaning the graffiti off, only for its buildings to be vandalized again. On several

13 occasions, CHOP participants attempted to break into its buildings, once breaking the lock box for

14 mail. Olive ST Apartments called the police, but the police told Olive ST Apartments’ security

15 guard that they would not send anyone to the area.

16

162. The noise, including from Cal Anderson Park, also made conditions for Olive ST

17 Apartments’ tenants unlivable. The company received constant complaints about the noise at all

18 times of day and night, including gun shots. Tenants left to avoid the noise.

19

163. In addition to ceding the nearby Cal Anderson Park to CHOP, the City supported

20 the CHOP participants near Olive ST Apartments by providing them with barricades, lights, toilets,

21 handwashing stations, and fire extinguishers. The City allowed CHOP participants to use bright

22 lights at Cal Anderson Park to facilitate CHOP activities there, causing a nuisance to Olive ST

23 Apartments’ tenants.

24

164. Given the unlivable conditions, it was impossible for the company to rent its

25 apartments. Tenants moved out because of the nearby presence of CHOP. No new renters have

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1 interest in moving to the area. Each day CHOP and its aftereffects continue, Olive ST Apartments

2 incurs further harm and economic loss.

3

165. Plaintiff Redside Partners. Plaintiff Redside Partners performs real-estate

4 management services to buildings near CHOP. Its business has also been hurt by CHOP and its

5 aftereffects. Redside Partners employees reported that they do not feel safe coming to work, as the

6 company’s offices are near Cal Anderson Park. The company’s employees report widespread

7 lawlessness, including vandalism, graffiti, and public drug use affecting the buildings the company

8 manages. CHOP participants trespassed on Redside Partners’s properties, including climbing up

9 fire escapes to get on building roof tops. Redside Partners complained to the City but received no

10 response.

11

166. Capitol Hill’s real-estate companies like Plaintiffs Madrona Real Estate, Hunters

12 Capital, and Redside Partners have invested millions of dollars over the years to turn Capitol Hill

13 into a desirable location, with modern condos, restaurants, and shops. They have made investments

14 in new, state-of-the-art buildings and the restoration of many historic buildings. Over the last

15 several decades, they have helped transform Capitol Hill into one of the nation’s most vibrant and

16 architecturally attractive neighborhoods, a diverse melting pot for both local residents as well as

17 tourists, with the City’s best boutique shopping, dining, socializing, and urban living. It has

18 fostered a livable community for many new residents and a superstructure for many thriving small

19 businesses, which employ thousands of employees from a diverse set of backgrounds. The

20 immense value and wealth this has created, for Plaintiffs, the Capitol Hill community, and Seattle

21 more generally is actively being destroyed by the City’s actions.

22

167. Plaintiff Rancho Bravo. Rancho Bravo is a restaurant well-known for providing

23 quality Mexican food at affordable prices. Its location on Capitol Hill is on 11th and Pine Street, in

24 the center of what became CHOP. In the days following the SPD’s abandonment of the East

25 Precinct, Rancho Bravo’s owner and others met with city officials, including the Fire Chief, and

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1 urged them to remove the barricades that had been left behind. They pointed out that, without the

2 barricades, the CHOP participants could continue their protest activities but would not obstruct

3 streets or hamper businesses. The next day, the City not only failed to remove the existing

4 barricades which had been used by police during the protests, but the City also provided additional

5 concrete barriers to CHOP participants to set up their “autonomous zone” to keep police and others

6 out.

7

168. Also, after the City’s decision to abandon the East Precinct, CHOP participants,

8 without asking Rancho Bravo, set up a makeshift medical center in the outside seating areas in

9 front of the restaurant. This “medic station” was in operation for weeks and obstructed customer

10 access to seating.

11

169. At one point during the occupancy, CHOP participants set up a vehicle and trailer

12 blocking the northeast access point to the Rancho Bravo parking lot. The participants involved in

13 placing these obstructions set up a food stand on the street near Rancho Bravo serving tacos,

14 burritos, fruit, and other concessions. Rancho Bravo’s owner met with the owners of this food

15 stand and asked if they had a permit. He was told that they had no permit but that the CHOP leaders

16 had approved their activities.

17

170. During the CHOP occupancy, Rancho Bravo stayed open, believing that its

18 property would be in greater danger had it abandoned the restaurant. Having seen the damage to

19 other buildings in the area, Rancho Bravo was concerned that CHOP participants would vandalize

20 or perhaps even burn down the Rancho Bravo building if it were abandoned. As it was, CHOP

21 participants left extensive graffiti on and around the restaurant building. Rancho Bravo’s business

22 dropped precipitously during the occupancy, leading to significant economic losses.

23

171. Plaintiff Sway and Cake. Sway and Cake is a clothing store located on 12th Street

24 and Pike Street. Its storefront looked out on barricades placed by CHOP participants at the entrance

25 to CHOP at that intersection. Sway and Cake had been closed due to the public health crisis and

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1 was preparing to re-open at the time the protests began. However, once SPD abandoned the East

2 Precinct, and the City discontinued providing police and emergency services to the area, Sway and

3 Cake had to board up its storefront and remain closed despite State orders permitting re-opening.

4 The store feared the possibility of vandalism, arson, or other crimes. Also, the environment in the

5 CHOP, according to the store’s owner, was not conducive to her clientele; rather, it was completely

6 lawless and dangerous. Sway and Cake’s owner visited the store while CHOP was being occupied

7 and, when approaching the barricades, would be asked by those guarding the barriers why she was

8 entering the area.

9

172. Plaintiff Shuffle LLC/Cure Cocktail. Cure Cocktail is a restaurant and bar with

10 windows and a patio overlooking Cal Anderson Park from its location on Nagle Place. Cure

11 Cocktail’s business suffered dramatically once the CHOP occupation began. Access to Nagle Place

12 was blocked by barricades, and the patio, rather than looking over the normally pleasant Cal

13 Anderson Park, now provided a view of, among other things, armed CHOP participants and a tent

14 city. Because of the notoriety of CHOP and the barricades, deliveries of inventory to Cure Cocktail

15 were cancelled. Without police presence, the area was dangerous, and escalated in danger as crime,

16 including shootings, became common. Potential customers no longer wanted to be near the

17 restaurant or the area. A once vibrant business, even during the health crisis through online orders,

18 Cure Cocktail’s revenues declined dramatically. When interacting with Cure Cocktail personnel,

19 CHOP participants would ask questions such as, “Are you for the CHOP or are you for the police?”

20 Even though Cure Cocktail supports Black Lives Matter and other causes, it became fearful in its

21 communications with the protestors over what might happen if they offended CHOP participants.

22 In some communications, they were threatened with “exposure” over Instagram or other social

23 media sites if they did not express support for specific causes.

24

D. The City Actively Supported and Encouraged CHOP and CHOP Participants.

25

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1

173. In the face of all this destruction, City leaders, including Mayor Durkan, embraced

2 the existence, message, and methods of CHOP and CHOP Participants. They did this with physical

3 support and extensive verbal support and encouragement that has expressly endorsed the

4 barricading and occupation of City streets and parks.

5

174. Since the day that the City abandoned the East Precinct, the City had full knowledge

6 of the problems created for businesses and residents in and around CHOP, including property

7 damage, lack of police response, the inability for workers and residents to enter and leave the area,

8 the inability for businesses to receive deliveries, and other adverse impacts on residents,

9 businesses, and property owners in the area. The City nevertheless adopted a policy supporting the

10 CHOP occupation, acting with deliberate indifference toward those suffering harms from it.

11 Evidence of the City’s knowledge includes the following:

12

a. At a June 11, 2020 press conference with Mayor Durkan, Chief Best made

13

it clear that the City was fully aware that its 9-1-1 response times had tripled and that

14

there was a serious public-safety crisis for anyone who lives or works in CHOP.

15

b. On June 16, 2020, the City stated, via a press release from the Mayor’s

16

office:

17

Beginning last Tuesday, City officials have been on site on Capitol

18

Hill to work [to] meet community needs including hygiene, sanitation and safety. Utilities including Puget Sound

19

Energy and SPU have been able to respond to the area for service.

Seattle Police Chief Carmen Best has visited the site multiple

20

times. Over the past week, conversations continued between City

officials, organizers onsite for the CHOP, residents and

21

businesses. … Every day, Seattle Fire Chief Harold Scoggins,

Seattle Department of Transportation Director Sam Zimbabwe,

22

and Seattle Public Utilities General Manager Mami Hara have

been on site. On Sunday, they held a meeting with onsite

23

organizers, small businesses, and residents to discuss proposed

24

changes to the protest zone.

c. On information and belief, Mayor Durkan and the SPD have been inundated 25

with complaints about CHOP that describe in detail the extensive property damage,

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1

restricted access, and economic loss that residents, businesses, and property owners are

2

suffering.

3

d. In response to at least some requests from desperate businesses and

4

residents for her to cease her support of CHOP, Mayor Durkan’s office has provided a

5

stock response acknowledging that the City is “maintaining” a space for CHOP,

6

including by, for example, providing a “sturdier concrete barrier” to help CHOP block

7

a public street. The stock response states in part as follows:

8

Thank you for reaching out.

9

The Capitol Hill Organized Protest has emerged as a gathering

10

place where community members can demand change of their

local, state, and federal government. Capitol Hill and Cal

11

Anderson Park have long been a gathering place for justice. While

there have been inaccurate and misleading depictions of the CHOP

12

from the President and some national media, the City believes first

amendment activities can continue while also maintaining public

13

safety and allowing access for residents and businesses who

operate in the area. Mayor Durkan believes these changes can help

14

ensure any focus of the CHOP and Cal Anderson will allow for

15

peaceful demonstrations to continue.

16

Beginning last Tuesday, City officials have been on site on Capitol

Hill to work [to] meet community needs including hygiene,

17

sanitation and safety. Utilities including Puget Sound Energy and

SPU have been able to respond to the area for service. Seattle

18

Police Chief Carmen Best has visited the site multiple times. Over

the past week, conversations continued between City officials,

19

organizers onsite for the CHOP, residents and businesses. The

City is committed to maintaining space for community to come to

20

together, protest and exercise their first amendment rights. Minor

21

changes to the protest zone will implement safer and sturdier barriers to protect individuals in this area, allow traffic to move

22

throughout the Capitol Hill neighborhood, ease access for

residents of apartment building in the surrounding areas, and help

23

local businesses manage deliveries and logistics. Additionally all

plans have been crafted with the goal of allowing access for

24

emergency personnel including fire trucks.

25

Every day, Seattle Fire Chief Harold Scoggins, Seattle

Department of Transportation Director Sam Zimbabwe, and

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Seattle Public Utilities General Manager Marni Hara have been on

1

site. On Sunday, they held a meeting with onsite organizers, small

2

businesses, and residents to discuss proposed changes to the protest zone. In coordination with protesters onsite, work began at

3

6:30 a.m. on Tuesday to remove a tent barrier at 10th and Pine and

replace it with a sturdier concrete barrier to improve public safety.

4

The City has successfully worked with protesters onsite to

reconfigure the CHOP to allow for public safety and better access

5

for the local community. That has involved rerouting traffic,

freeing up alley access, opened streets, and replacing makeshift

6

barriers with heavy concrete barriers that can be painted.

7

8

e. In addition to the numerous City officers listed above, Mayor Durkan

9

herself has personally visited CHOP and has seen what is happening. In an interview given

10

in her City offices on Facebook Live on June 12, 2020, Mayor Durkan made clear that she

11

had seen the barriers and talked to CHOP participants and apparently approved of them

12

using an individual with behavioral health issues to enforce the perimeter: “It’s interesting,

13

when I was at the CHAZ, walking around, similar kind of philosophy, because there’s this

14

one guy, some behavioral health issues, and it was like, look, he has some hard times, and

15

he helps on that barricade over there, and then when he starts having a hard time, we just

16

bring him over here, take care of him, feed him. And that’s what you gotta do, right?”3

17

f. On June 22, 2020, Mayor Durkan stated at a press conference:

18

Over the days, tens of thousands of people have peacefully gathered

or visited Capitol Hill. During the day, there have been no major

19

incidents. But we know it is very different at night, particularly in

20

recent nights. The cumulative impacts of the gatherings and protests

21 3 https://www.facebook.com/WWConverge/videos/250593506242797/?__tn__=kC-
R&eid=ARBT9Zl4Zd0BnqFUyG1bgaapWeIo6meLrp9YI7QgilK36tLAFfNcpij4zHFTEwP0wNzoVQK7O1LPtpa8
22 &hc_ref=ARTeZJ-
MVhRABE0ZxnSxzApxaoAJVsmqCzhgB7vaP0wwkcuhf0CtwXnjqpvqfAIKLQk&__xts__[0]=68.ARDhXBScmD
23 _P9GnI4X2NL4z0eUgRkuV8hj_BUWpBgtqxg133nAdZz00w2pqmYlrfVrVanpZgUlgy2rw9hbGAwTWLjcxp1fAP
AVjYhDHpvEOpeSmJavdPNPPlK_wodfv_idPwOeVfsbgsB04YjUKfXfnUZvddSThmUspA_o5oqETWWFluP2o_
24 Yh-
tP64swtkdKoXl374Vd0zqTxRoapQChSzCt5dXToGlW6ESVGiUVQznk42YXs8U2lpzAwJmp99RXyrNW3fSYzU
25 cPopUKTNN-
KP7EBDNdje9UibYcP84111ipRk31bjIk5XrSRcU2rjmqzsd_KjoOwrpoHYKssQd5Vnwe6OvBXCSGW_4ctaQKX mwUcmaTA

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and the nighttime atmosphere and violence has led to increasingly

1

difficult circumstances for our businesses and residents. Most of

2

them supported protesters’ right to gather at the outset. They stand with them in solidarity. But the impacts have increased, and the

3

safety has decreased. Both on Saturday morning and last night there

were incidents of gun violence. And that escalating violence

4

concerns me, Chief Best, residents, businesses, and the greater

community. All of Capitol Hill has been impacted.

5

6

g. At the same June 22, 2020 press conference, Chief Best stated that reports

7

to the police demonstrate that some CHOP participants are “engaging in shootings, a rape,

8

assaults, burglary, arson, and property destruction, and I have their police reports right here.

9

I’m not making it up. These things have happened.”

10

h. At a press conference on June 29, 2020, the morning after yet another fatal

11

shooting in the CHOP area, Chief Best repeatedly emphasized how dangerous the situation

12

is within CHOP, stating:

13

[I]t’s very unfortunate that we have yet another murder in this area

14

identified as the CHOP. Two African American men dead at a place

where they claim to be working for Black Lives Matter. But they’re

15

gone. They’re dead now. And we’ve had multiple other incidents –

assaults, rape, robbery, and shootings. And so, you know, this is

16

something that is going to need to change. We’re asking people to

remove themselves from this area for the safety of the people. If they

17

care about people, they’re gonna have to try to help us to make it

safe. Not opposed to anybody’s issue or concern. They certainly can

18

demonstrate, you know, and peacefully any place, but they can’t

19

hostilely take over a neighborhood and cause the crime levels to go up like this. Two men are dead. Two men are dead. And a child, a

20

14-year-old, is hospitalized and we don’t know what is gonna

happen to that kid.

21 …
22

You know, at this point, the East Precinct, while important to us,

23

what’s much more important is that this neighborhood is not under

siege and that there are not people being victimized. You know, the

24

precinct is a building. The precinct is a building. But people dying,

25

rapes, robbery, assault – that is what we need to deal with. That’s what we need to deal with.

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1

…

2

I have said this multiple times, it is taking us three and a half times

3

longer to get here. We have a fire station that is less than two blocks

from here, they cannot go into this area. We have had so many issues

4

and problems. And, you know, I have the police reports, people have

identified as victims… we need to make sure that we are able to

5

provide public safety. That is what needs to happen.

6

…

7

As an African American woman, with uncles and brothers and stuff,

8

I wouldn’t want them to be in this area. We’ve had two men killed. And we have a child that’s injured from gunfire. So this is a real

9

problem. And I would question why we would continue to allow this

to happen.

10 …
11

I think everybody in city government has been talking about what

12

we can do to have a reasonable response, that limits any issue or

danger, but we also recognize that a place where we have seen now

13

two murders, multiple people injured, there needs to be some more

14

action for public safety. I think everybody can agree on that.

15

…

16

[T]his situation as you reporters are walking around, you can see

that it can be dangerous and unacceptable, and so we’re gonna have

17

to work through this. This is not safe for anybody. Not anybody.

Multiple cases. Two murders. And it’s not right. So, thank you for

18

your time. I think there will be other times we will get a chance to

talk and go over it. But, as you can see, this is not an acceptable

19

situation. Thank you.

20

21

i. At one point during this same press conference, in response to a question

22

about whether the City-provided barriers had saved lives by preventing a Jeep from

23

entering the CHOP area, Chief Best responded:

24

CHIEF BEST: Yeah, I don’t agree. I absolutely do not agree with

25

that. I think that is absolutely ludicrous. I’m not gonna let the

detractors and the naysayers and the agitators be the ones who are

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the voice here. There are people who live here, there are multiple

1

people who are being injured and hurt, and we need to do something

2

about it. It is absolutely irresponsible for this to continue.

3

j. On July 1, 2020, Chief Best stated in a press conference, “This order and

4

our police response comes after weeks of violence in and around the Capitol Hill Occupied

5

Protest zone, including multiple shootings resulting in many injuries and two deaths. …

6

Our job is to support peaceful demonstrations. But what has happened here on these streets

7

over the last two weeks – few weeks, that is – is lawless and it’s brutal and bottom line it

8

is simply unacceptable.”

9

175. The extent of the City’s knowledge of what was going on in CHOP is demonstrated

10 by the following from Mayor Durkan’s emergency order that went into effect on July 1, 2020:

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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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
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1

176. Despite having knowledge of exactly what was happening at CHOP by being there

2 every day and in apparently constant contact with area residents and business owners, the City

3 acted with deliberate indifference toward the safety and property interests of those residents and

4 businesses.

5

177. The City also enabled the blocking of ingress and egress for businesses and

6 residents in the area, without providing plaintiffs any notice of this deprivation or opportunity to

7 be heard on the matter. Reportedly, the City reached an informal agreement with CHOP

8 participants to allow limited one-way access on Eleventh and Twelfth Avenues starting on June

9 16, 2020 (Plaintiffs were not invited to participate in these negotiations). However, as part of that

10 agreement, the City actually fortified the rest of CHOP with new barriers (again without providing

11 Plaintiffs notice or an opportunity to be heard on the matter). And even the planned limited access

12 for some streets almost immediately broke down when CHOP participants reestablished

13 impediments. The City’s response to this was apparently to do nothing.

14

178. At the same time that the City has acted with deliberate indifference to property

15 owners and people who live and work in and near CHOP, the City physically aided, endorsed, and

16 actively encouraged CHOP participants to continue their occupation of public spaces.

17

179. The City physically aided CHOP participants in their occupation of the area in at

18 least the following ways:

19

a. When the City abandoned the East Precinct on June 8, 2020, it left behind

20

the barriers that had previously blocked street access and protected the East Precinct from

21

protesters. These barriers foreseeably served as the raw materials that allowed CHOP

22

participants to block streets and create CHOP within a very short time.

23

24

25

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1

b. On June 16, 2020, the City provided even more concrete barriers to CHOP

2

participants so that CHOP participants could replace wooden barriers and fortify their

3

blockages of streets.4

4

c. The City provided portable toilets and wash stations for CHOP participants.

5

d. The City has provided medical equipment, including beds and other

6

supplies, to the CHOP “medical tent.”

7

e. The City provided nighttime lighting at Cal Anderson Park.

8

180. As the City admitted in Mayor Durkan’s July 1, 2020 emergency order, the City

9 “facilitated” CHOP by:

10

“* Providing basic hygiene, water, litter, and garbage removal.

11

* Temporarily allowing obstructions of public parks, streets, and sidewalks

12

* Modifying SPD and SFD response protocols….

13

* Modifying streets and pedestrian access routes.

14

* Providing social services outreach and engagement….

15

* Facilitating modified city services delivery to local residents and businesses

16

impacted by events in this area.”

17

181. The City’s policies effectively authorized the actions of the CHOP participants. The

18 City communicated clearly to CHOP participants that they may indefinitely continue occupying

19 the streets in the area, maintaining their barricades, and blocking traffic, all without interference

20 from the City. The City has communicated this message in at least the following ways:

21

a. On June 11, 2020, during a joint press conference with the Chief of Police,

22

Mayor Durkan stated: “There’s not a specific date … because we are trying to do things

23

that are responsible.”

24

25
4 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

b. On June 12, 2020, in response to a direct question from CNN’s Chris

2

Cuomo about how long the City would allow CHOP participants to continue to occupy the

3

neighborhood, Mayor Durkan responded, “I don’t know. We could have the Summer of

4

Love.”

5

c. On June 16, 2020, the City announced through an official statement from

6

Mayor Durkan that it had negotiated with CHOP participants to adjust some but not all

7

their barriers to allow one-way traffic on Twelfth Avenue.5 This agreement was an

8

endorsement of CHOP participants’ other barriers and its overall occupation of the

9

neighborhood.

10

d. In announcing the supposed opening of a one-way corridor, the City made

11

clear in a statement from the Mayor that it was an active participant in maintaining and

12

solidifying CHOP barriers and boundaries:

13

The City is committed to maintaining space for community to come

14

together, protest and exercise their first amendment rights. Minor changes to the protest zone will implement safer and sturdier

15

barriers to protect individuals in this area, allow traffic to move

throughout the Capitol Hill neighborhood, ease access for residents

16

of apartment building in the surrounding areas, and help local

businesses manage deliveries and logistics. [emphasis added]6

17

18

e. Also on June 16, 2020, Mayor Durkan suggested that the City agreed that

19

police officers will only enter the occupied area for “significant life-safety issues.”7

20

f. On June 22, 2020, Mayor Durkan and Chief Best held a joint press

21

conference in which they expressed concern about the impacts of CHOP but also indicated

22

at that time there was no specific timeline or plan for lessening those impacts or removing

23

the blockades, barriers, and tents from CHOP.

24
25 5 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/
6 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/ 7 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

182. The City also made numerous statements indicating that it endorsed and would

2 continue to support what CHOP participants were doing in the area, thereby ensuring the continued

3 and indefinite occupation and blockading of the neighborhood, and all the damage it has caused

4 and will cause. The City’s statements include at least the following:

5

a. On June 11, 2020, Mayor Durkan posted following on her Twitter page:

6

“The Capitol Hill Autonomous Zone #CHAZ is not a lawless wasteland of anarchist

7

insurrection – it is a peaceful expression of our community’s collective grief and their

8

desire to build a better world.”

9

b. On June 11, 2020, Mayor Durkan also posted on her Twitter page: “For the

10

thousands of individuals who have been on Capitol Hill, I think you’ve seen what I’ve

11

seen: the painting of Black Lives Matter along Pine Street, food trucks, spaghetti potlucks,

12

teach-ins, and movies.”

13

c. On June 11, 2020, Mayor Durkan stated during a joint press conference with

14

the Chief of Police:

15

Lawfully gathering and expressing first Amendment rights, and

16

demanding we do better as a society, and providing true equity for communities of color, is not terrorism. It is patriotism. The right to

17

challenge government and authority is fundamental to who we are

as Americans. … And for the thousands of individuals who’ve been

18

on Capitol Hill, many of them, what you’ll see is a painting of

Black Lives Matter along Pine Street. Food trucks, spaghetti

19

potlucks, teach-ins, movies, free granola bars . . . .

20

d. During the same press conference on June 11, 2020, Mayor Durkan also

21

stated:

The Capitol Hill area—in fact, some of my family is up there right

22

now—… it is not an armed ANTIFA militia no-go zone. It is, a

number of people are there, we’ve had ongoing communications

23

with them, with the businesses, with the residents, and we will

24

make sure that we find some way for people to continue to protest peacefully while also getting ingress and egress. We’ve had blocks

25

of Seattle in Capitol Hill shut down every summer for everything

from Block Party to Pride. This is not really that much of an

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operational challenge. But we want to make sure that the businesses

1

and residents feel safe and we’ll continue to move that forward.

2

3

e. During her Facebook Live interview, Mayor Durkan also stated “I was up

4

there today, walking around, talking to people, and I think we just have to continue to

5

listen to people and figure out a way that there’s still a way for people to have that kind

6

of free expression, but we need to open up the streets, too, at least 12th so we can get

7

fire through, and like that, so we’re going to keep talking to people and listening to

8

them. But I heard a lot of great ideas and I heard a lot of community strength there.

9

That was cool.”

10

f. Also on June 12, 2020, during her interview with CNN’s Chris Cuomo,

11

Mayor Durkan said, “We’ve got four blocks in Seattle that just saw pictures of that is

12

more like a block party atmosphere. It’s not an armed takeover. It’s not a military junta.

13

We will – we will make sure that we can restore this. But we have block parties and

14

the like in this part of Seattle all the time. It’s known for that.”

15

g. On June 12, 2020, Mayor Durkan endorsed the gardens being planted in Cal

16

Anderson Park on Twitter: “Earlier today I visited the #CHAZ and met Marcus

17

Henderson, the person behind the new community garden popping up in Cal Anderson

18

Park. Read more about Marcus and the work that’s gone into creating the gardens:

19

thestanger.com/slog/2020/06/1.”

20

h. Mayor Durkan also tweeted on June 12, 2020: “For as long as I can

21

remember, Capitol Hill has been autonomous – it’s been a place where people go to

22

express themselves freely. Today at the #CHAZ, I spoke with organizers and

23

community about how we can move forward and keep our communities safe, together.”

24

25

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1

i. Mayor Durkan tweeted on June 16, 2020: “The #CHOP has emerged as a

2

gathering place for community to demand change of their local, state, and federal

3

government.”

4

j. On June 19, 2020, Mayor Durkan officially declared that there was no

5

longer a state of emergency in the City because “demonstrations since that day have

6

been and continue be largely peaceful.”

7

k. On June 21, 2020, after two people were shot in CHOP and one of them

8

died, Mayor Durkan issued a statement indicating that the City still had no plans to

9

cease supporting CHOP and that the City was instead acting to work with and preserve

10

CHOP.

11

183. The City changed its tone after it learned that this lawsuit would be filed, and

12 especially after Plaintiffs filed their first complaint. This included finally clearing CHOP of

13 barricades and CHOP participants on July 1, 2020, in the face of an impending motion for a

14 temporary restraining order. But the City’s earlier assistance and endorsement of CHOP and

15 CHOP participants caused, and continue to cause, harm to Plaintiffs and the Class that would not

16 have occurred absent the City’s actions.

17

184. The clearing of the area on July 1, 2020, was easily and accomplished without

18 violence on either side, demonstrating that the City could have and should have cleared the area

19 far earlier.

20

V. CLASS ALLEGATIONS

21

185. Plaintiffs seek to certify a class of similarly situated persons pursuant to Fed. R.

22 Civ. Proc. 23(b)(2) and/or 23(b)(3).

23

186. The Class is hereby defined as follows: All persons or entities who own property

24 in, have a business in, or reside in the area in the City of Seattle bounded by the following streets:

25 Denny Way, Union Street, Thirteenth Avenue, and East Broadway. This definition excludes the

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1 City of Seattle and any departments or agencies of the City of Seattle, including the Seattle Police

2 Department.

3

187. The definition of the Class is unambiguous. Plaintiffs are members of the Class,

4 and all members of the Class can be identified through public records and notified by mail or other

5 means of notification.

6

188. The number of Class members makes joinder impractical. Plaintiffs do not know

7 the exact number of members in the Class, but believe the total number of businesses, residents,

8 and property owners in the Class to be in the thousands.

9

189. There are numerous questions of law and fact common to the Class that

10 predominate over any individual issues. These issues include the following:

11

a. Whether the City has participated in, endorsed, or encouraged the creation,

12

maintenance, and continued existence of CHOP.

13

b. All facts regarding the existence and maintenance of CHOP including at least

14

the following:

15

i. The boundaries and nature of the SPD’s “no-go” zone in and

16

around CHOP.

17

ii. All facts and circumstances surrounding the City’s

18

participation in, endorsement of, or encouragement of the

19

creation, maintenance, and continued existence of CHOP.

20

iii. The nature and scope of activities of CHOP participants.

21

c. Whether Plaintiffs and the Class have legally protected constitutional property

22

rights.

23

d. Whether the City has infringed on those property rights by its actions with

24

regard to CHOP.

25

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1

e. Whether the City was required to provide notice and a hearing to Class

2

members before infringing on those property rights.

3

f. Whether CHOP and CHOP participants are a nuisance within the meaning of

4

RCW 7.48.010, et seq.

5

g. Whether the City has participated in the maintenance of that nuisance.

6

h. Whether the City has acted with deliberate indifference toward Plaintiffs and

7

the Class.

8

i. Whether the harm suffered by Plaintiffs and the Class was foreseeable and

9

obvious.

10

j. Whether the City’s actions constitute an unlawful gift within the meaning of

11

the Washington Constitution.

12

k. Whether Plaintiffs and the Class have suffered a taking without just

13

compensation.

14

l. Whether the City has treated the Class differently from others similarly

15

situated in violation of the Equal Protection Clause of the Fourteenth

16

Amendment to the United States Constitution.

17

m. Whether the City’s actions were pursuant to a City policy.

18

n. Whether the City’s actions were ratified by a City policymaker.

19

o. Whether Plaintiffs and the Class are entitled to injunctive relief.

20

190. The claims of the Plaintiffs are typical of the members of the Class. All Plaintiffs

21 reside in the Class and have been subject to the same course of conduct by the City.

22

191. The Plaintiffs will fairly and adequately represent the Class. Plaintiffs are all

23 members of the Class and have there are no conflicts between Plaintiffs and other Class members.

24 Plaintiffs are well-informed as to the nature of this case and the claims against the City and have

25 retained competent and experienced counsel that intend to prosecute this action vigorously.

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1

192. The City has acted or refused to act on grounds that apply generally to all Plaintiffs

2 and the Class such that injunctive relief is appropriate respecting the Class as a whole.

3

193. The issues that Class members have in common predominate over any individual

4 issues. The City engaged in a common course of conduct giving rise to the harms suffered by

5 Plaintiffs and the Class. A single, common policy is at issue in this case. Individual questions, if

6 any, pale by comparison to the numerous common questions that dominate. The injuries sustained

7 by the Class members flow, in each instance, from a common nucleus of operative facts.

8

194. A class action is superior to other available methods for the fair and efficient

9 adjudication of this controversy because joinder of all class members is impracticable. The

10 prosecution of separate actions by individual members of the Class would impose heavy burdens

11 upon the courts and the City and would create a risk of inconsistent or varying adjudications of the

12 questions of law and fact common to the Class. A class action would achieve substantial economies

13 of time, effort, and expense, and would assure uniformity of decision as to persons similarly

14 situated without sacrificing procedural fairness. Individual litigation of the legal and factual issues

15 raised by the conduct of the City would increase delay and expense to all parties and to the court

16 system. The class action device presents far fewer management difficulties and provides the

17 benefits of a single, uniform adjudication, economies of scale and comprehensive supervision by

18 a single court. Given the similar nature of the claims of the members of the Class and the uniform

19 application of Washington and federal law to the claims of Plaintiffs and the members of the Class,

20 the Class’s claims can and will be most effectively managed by a class action.

21

VI. CLAIM FOR RELIEF

22

FIRST CAUSE OF ACTION – PROCEDURAL DUE PROCESS

23

42 U.S.C. § 1983

24

U.S. Const. amend XIV § 1

25

On behalf of Plaintiffs and the Class

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1

195. Plaintiffs incorporate all other allegations in this complaint as if set forth herein.

2

196. Plaintiffs and the Class have constitutionally protected property interests, as

3 defined by Washington state law, to exclude others from their property, to the use and quiet

4 enjoyment of their property, and to access their property via public rights-of-way.

5

197. The City has infringed on those constitutionally protected interests, including by

6 (1) creating, assisting, endorsing, and encouraging an indefinite, unpermitted occupation and

7 blockade of the public streets, sidewalks, and parks in and around CHOP, thereby denying

8 Plaintiffs access to their properties, and (2) creating, assisting, endorsing, and encouraging the

9 pervasive vandalism and trespasses against Plaintiffs’ properties, thereby denying Plaintiffs the

10 ability to use their properties and exclude others from them.

11

198. Plaintiffs and the Class also have constitutionally protected liberty interests in the

12 fundamental right of free movement and the right to remain in a public place of one’s choosing.

13

199. The City has infringed on those constitutionally protected liberty interests through

14 its CHOP policies, including by, among other conduct as alleged throughout this Complaint,

15 granting de facto autonomy over the CHOP area to the CHOP participants and allowing them to

16 determine who could and could not travel through and within the CHOP area.

17

200. The City has infringed on Plaintiffs’ constitutionally protected interests without

18 providing Plaintiffs with any due process before depriving them of these interests, or providing

19 any recourse following the deprivation of the interests. In particular, the City provided Plaintiffs

20 with no notice or opportunity to be heard before or after depriving Plaintiffs of the freedom of

21 movement, the right to access their properties, the right to use their properties, and the right to

22 exclude others from their properties,

23

201. The City has done so pursuant to City policy as created, ratified, and authorized by

24 City policymakers, including Mayor Durkan, without any notice to Plaintiffs or opportunity for

25 them to be heard.

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1

202. As a direct result of the City’s actions, Plaintiffs and the Class have been denied

2 regular and customary use of, access to, and enjoyment of their property, including the ability to

3 drive or park in CHOP, the ability to walk to their homes or business without obstruction, the

4 ability to accept deliveries to their homes or business, the ability to prevent and remedy vandalism,

5 the ability to prevent trespasses and theft against their properties, the ability to freely move about,

6 and the ability to remain in a public place of one’s choosing.

7

203. Plaintiffs and the Class have been harmed by this deprivation, including through

8 loss of revenue, loss of property value, damages to property, and other damages.

9

SECOND CAUSE OF ACTION – SUBSTANTIVE DUE PROCESS

10

42 U.S.C. § 1983

11

U.S. Const. amend XIV § 1

12

On behalf of Plaintiffs and the Class

13

204. Plaintiffs incorporate all other allegations in this complaint as if set forth fully

14 herein.

15

205. Plaintiffs have a right pursuant to substantive due process to be protected from

16 state-created dangers.

17

206. The City‘s actions, assistance, endorsements, and encouragements of CHOP and

18 CHOP participants greatly increased the likelihood of property damage, loss of business revenue

19 and rental income, personal injury, loss of use of property, and other damages to Plaintiffs. This

20 subjected Plaintiffs and the Class to harm that they not would have suffered absent the City’s

21 actions.

22

207. All damages suffered, and still to be suffered, by Plaintiffs were and are

23 foreseeable, known, and obvious.

24

208. The City acted with deliberate indifference to the known and obvious harm that

25 would be suffered by Plaintiffs.

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1

209. The City did so pursuant to City policy as created and ratified by City policymakers,

2 including Mayor Durkan.

3

FOURTH CAUSE OF ACTION – TAKING

4

42 U.S.C. § 1983

5

U.S. Const. amends. V, XIV

6

On behalf of Plaintiffs and the Class

7

210. Plaintiffs incorporate all other allegations in this complaint.

8

211. Plaintiffs and the Class have constitutionally protected property rights to use and

9 enjoy their properties, to exclude others from their properties, and to access their properties via

10 public rights-of-way.

11

212. The City deprived Plaintiffs of those rights by affirmatively creating, assisting,

12 endorsing, and encouraging an indefinite, unpermitted invasion, occupation, and blockade of the

13 public rights-of-way that provide access to Plaintiffs’ private properties, as well as by affirmatively

14 creating, assisting, endorsing, and encouraging the physical invasion of Plaintiffs’ private

15 properties by CHOP participants.

16

213. The City did so pursuant to City policy as created and ratified by City policymakers,

17 including Mayor Durkan.

18

214. Plaintiffs have not received compensation for the deprivation of their property

19 rights.

20

215. The City’s actions constitute an unlawful taking for private use and/or an unlawful

21 taking for public use without just compensation, which has caused Plaintiffs economic harm,

22 including through a loss of property value, loss of business revenue, and a loss of investment-

23 backed expectations.

24

25

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1

FIFTH CAUSE OF ACTION – EQUAL PROTECTION

2

42 U.S.C. § 1983

3

U.S. Const. amend. XIV § 1

4

On behalf of Plaintiffs and the Class

5

216. Plaintiffs incorporate all other allegations in this complaint.

6

217. The City repeatedly expressed support for and endorsed the political message of

7 the CHOP participants, which includes calls for autonomy from City services like the police.

8

218. To further promote the political viewpoints of the CHOP participants, the City

9 endorsed the actions of the CHOP participants and provided support for the CHOP participants to

10 occupy the streets, sidewalks, and other public and private spaces throughout the CHOP area, even

11 though the CHOP participants lacked the permit that the City’s Municipal Code requires for events

12 of this type. See Seattle Municipal Code Chapter 15.52. Moreover, the City entirely ignored the

13 provisions of the Seattle Municipal Code that require the City to “designate an alternate proposal”

14 where, as here, a demonstration “would unreasonably disrupt the orderly or safe circulation of

15 traffic; would present an unreasonable danger to the health or safety, or present an unreasonable

16 risk of injury, to the public, the participants, or City employees; or would present an unreasonable

17 risk of damage to property.” See Seattle Municipal Code 15.52.060 (providing that the City “shall

18 designate an alternate proposal . . . .” (emphasis added).).

19

219. Moreover, in addition to providing material support and encouragement to the

20 CHOP participants, the City supported the CHOP participants by declining to provide police

21 protection in areas occupied by CHOP participants; declining to enforce criminal laws against

22 CHOP participants; declining to enforce zoning and nuisance laws against CHOP participants; and

23 refusing to respond to 9-1-1 calls or otherwise provide emergency services to areas occupied by

24 CHOP participants.

25

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1

220. Meanwhile, the City continued to provide police protection to areas not occupied

2 by CHOP participants; continued to enforce criminal laws outside of the CHOP area; continued to

3 enforce zoning and nuisance laws outside of the CHOP area; and continued to enforce protest-

4 permit requirements and other time, place, and manner restrictions outside of the CHOP area.

5

221. This difference between how the City treated areas occupied by CHOP versus other

6 areas of the City amounted to preferential treatment for the CHOP participants based on the

7 political viewpoints they were expressing.

8

222. In other words, because the City favored the CHOP participants’ viewpoints, the

9 City granted the CHOP participants de facto autonomy over the CHOP area and de facto immunity

10 from law enforcement, all while continuing to exercise governmental authority elsewhere in the

11 City and continuing to enforce the law against everyone else.

12

223. The City’s policy of granting the CHOP participants de facto autonomy and de

13 facto immunity from law enforcement amounts to discrimination on the basis of political speech,

14 and was not narrowly tailored to serve any substantial, legitimate government objective.

15

224. As a result of the City’s awarding the CHOP participants de facto autonomy over

16 the CHOP area, Plaintiffs’ rights to freely express their own viewpoints, including any viewpoints

17 contrary to those of the CHOP participants, were severely restricted. CHOP participants regularly

18 threatened, bullied, and even assaulted individuals whom they suspected might hold viewpoints

19 contrary to their own, and the City’s policies allowed them to do so with impunity. CHOP

20 participants even threatened violence against individuals taking pictures in public places and

21 property owners painting over graffiti on their own buildings.

22

225. Even if the City’s conduct and policies were not discriminatory on the basis of

23 political speech, the City’s policies and conduct were irrational and arbitrary.

24

226. For instance, the City’s policy of refusing to respond to 9-1-1 calls from the CHOP

25 area, while continuing to respond to 9-1-1 calls and provide emergency services elsewhere in the

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1 City, was irrational because any obstructions or dangers to providing services within CHOP were

2 created and maintained by the City’s own policy of supporting and endorsing the actions of the

3 CHOP participants.

4

227. Moreover, the policy was arbitrary because City continued to respond to 9-1-1 calls

5 and provide emergency services outside of the CHOP area, including in similarly dangerous

6 situations. For example, while CHOP was still ongoing, the City provided emergency response

7 services in the following dangerous situations, among many others:

8

a. In North Seattle on June 29, police reportedly responded to “[a] 911 call with

9

yelling in the background and a report of a man with a gun.”8 Medics

10

responded to the scene as well.

11

b. In Wallingford on June 24, Seattle Police Department officers responded to

12

reports of a man in crisis and armed with a knife and took the suspect into

13

custody.9

14

c. On June 24, the Seattle Fire Department responded to reports of a gas leak near

15

the 5000 block of 14th Avenue NW.10

16

d. On June 22, the Seattle Fire Department responded to reports of toxic fumes

17

in a building at the 10300 block of Meridian Ave N.11

18

228. Through the above-alleged conduct, the City has violated the Equal Protection

19 Clause of the Fourteenth Amendment to the U.S. Constitution.

20

229. The City did so pursuant to City policy as created and ratified by City policymakers,

21 including Mayor Durkan.

22

230. Plaintiffs and the Class have been harmed by this denial of equal protection,

23 including through loss of revenue, loss of property value, damages to property, and other damages.

24
8 https://spdblotter.seattle.gov/2020/06/29/man-kills-woman-in-domestic-violence-incident-in-north-seattle/
25 9 https://twitter.com/SeattlePD/status/1275883690229329920
10 https://twitter.com/SeattleFire/status/1275842278821523456
11 https://twitter.com/SeattleFire/status/1275122174630608897

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1

VII. JURY DEMAND

2

Plaintiffs demand a trial by jury.

3

VIII. PRAYER FOR RELIEF

4

WHEREFORE, Plaintiffs request the following relief:

5

A. Judgment in favor of Plaintiffs and against Defendant for actual damages in an

6 amount to be proven at trial;

7

B. Prejudgment interest at the maximum rate allowed by law;

8

C. Plaintiffs’ costs of investigation, costs of suit, and reasonable attorneys’ fees; and

9

D. All such other and further monetary, injunctive, and declaratory relief as the Court

10 may deem just and proper.

11

DATED this 10th day of July, 2020.

12

CALFO EAKES LLP

13

By_/s Patty A. Eakes_________________

14

Patty A. Eakes, WSBA #18888

Angelo J. Calfo, WSBA #27079

15

1301 Second Avenue, Suite 2800

Seattle, WA 98101

16

Phone: (206) 407-2200

Fax: (206) 407-2224

17

Email: pattye@calfoeakes.com

angeloc@calfoeakes.com 18

19

Attorneys for Plaintiffs

20

21

22

23

24

25

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 Case 2:20-cv-00983 Document 1 Filed 06/24/20 Page 1 of 56

1

2

3

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON

4

HUNTERS CAPITAL, LLC, a Washington

5 limited liability company, NORTHWEST

LIQUOR AND WINE LLC, a Washington 6 limited liability company, SRJ

7

ENTERPRISES, d/b/a CAR TENDER, a Washington corporation, THE RICHMARK

8 COMPANY d/b/a RICHMARK LABEL, a Washington company, SAGE PHYSICAL

9 THERAPY PLLC, a Washington professional limited liability company,

10 KATHLEEN CAPLES, an individual,

ONYX HOMEOWNERS ASSOCIATION, 11 a Washington registered homeowners

association, WADE BILLER, an individual, 12 MADRONA REAL ESTATE SERVICES

13

LLC, a Washington limited liability company, MADRONA REAL ESTATE

14 INVESTORS IV LLC, a Washington limited liability company, MADRONA

15 REAL ESTATE INVESTORS VI LLC, a Washington limited liability company, 12TH

16 AND PIKE ASSOCIATES LLC, a

Washington limited liability company, 17 REDSIDE PARTNERS LLC, a Washington

limited liability company, MAGDALENA 18 SKY, an individual, OLIVE ST

19

APARTMENTS LLC, a Washington limited liability corporation, and BERGMAN’S

20 LOCK AND KEY SERVICES LLC, a Washington limited liability company, on

21 behalf of themselves and others similarly

situated,

22

Case No. CLASS ACTION COMPLAINT JURY DEMAND

Plaintiffs, 23

vs. 24

25 CITY OF SEATTLE,

Defendant.

CLASS ACTION COMPLAINT - 1

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1

Plaintiffs hereby allege as follows:

2

I. OVERVIEW

3

1. The rights of free speech and to peaceably assemble are enshrined in our

4 constitutional tradition. Plaintiffs support free-speech rights and support the efforts of those like

5 Black Lives Matter who, by exercising such rights, are bringing issues such as systemic racism

6 and unfair violence against African Americans by police to the forefront of the national

7 consciousness. Specifically, Plaintiffs support the free speech rights of many of those who have

8 gathered on Capitol Hill to form what has been called “CHAZ,” standing for the “Capitol Hill

9 Autonomous Zone,” or “CHOP” for “Capitol Hill Organized Protest” or “Capitol Hill Occupying 10 Protest.”1

11

2. This lawsuit does not seek to undermine CHOP participants’ message or present a

12 counter-message. Rather, this lawsuit is about the constitutional and other legal rights of

13 Plaintiffs—businesses, employees, and residents in and around CHOP—which have been overrun

14 by the City of Seattle’s unprecedented decision to abandon and close off an entire city

15 neighborhood, leaving it unchecked by the police, unserved by fire and emergency health services,

16 and inaccessible to the public at large. The City’s decision has subjected businesses, employees,

17 and residents of that neighborhood to extensive property damage, public safety dangers, and an

18 inability to use and access their properties.

19

3. On June 8, 2020, the City of Seattle (“the City”) abruptly deserted the Seattle Police

20 Department’s East Precinct on the corner of Twelfth Avenue and E. Pine Street in Seattle’s Capitol

21 Hill neighborhood, leaving behind numerous barriers that had previously been used as a line

22 between police and protesters.

23

24

25
1 This complaint primarily refers to the area as “CHOP,” and the people who are participating in CHOP who are not businesses, employees, or residents of the area as “CHOP participants.”

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1

4. When the City abandoned the precinct and the nearby barriers, a number of

2 individuals who had been in the area took control of the barriers and used them to block off streets

3 in an area around the East Precinct.

4

5. In the days and weeks after the City abandoned the East Precinct, CHOP

5 participants have occupied the public streets, sidewalks, and parks in the area at all hours of the

6 day and night. Rather than seeking to restore order and protect the residents and property owners

7 within CHOP, the City instead chose to actively endorse, enable, and participate in the occupation

8 of CHOP.

9

6. The City has provided Cal Anderson Park, a public park located at the center of

10 CHOP, to CHOP for use as the staging ground supporting CHOP’s occupation of the surrounding

11 area. Supported by the City, countless CHOP participants now reside in the park at all times of day

12 and night, having turned it into a tent city. At any given time, hundreds of CHOP participants are

13 camped out in the park. Violence, vandalism, excessive noise, public drug use, and other crimes

14 are rampant within the park.

15

7. The City’s conduct has resulted in CHOP being blocked off from public access.

16 Among other conduct detailed below, the City recently provided the participants with concrete

17 barriers to use to block the streets, which CHOP participants have indeed used to barricade the

18 streets and create borders. These borders have, at times, been guarded by armed CHOP participants

19 who oversee who can or cannot enter CHOP. As a result, the streets are barred to most all vehicular

20 traffic, making it virtually impossible for residents and businesses to access their buildings, receive

21 deliveries, and provide goods and services to the few customers willing to enter CHOP.

22

8. The City’s conduct has also resulted in the elimination of basic public safety within

23 CHOP and nearby areas. For example, the City has enacted a policy under which police will not

24 enter the CHOP area except during life-and-death emergencies, and, even in those situations, the

25 response is, at best, muted and late. After a fatal shooting in the early morning of June 20, 2020,

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1 for example, officers did not even approach the area of the shooting until approximately 20 minutes

2 after the shooting, and no professional medical response was available for at least 15 minutes. At

3 other times, even during life-and-death emergencies, the police have acquiesced to demands from

4 CHOP participants that they abandon the area. The City has acknowledged the serious safety issues

5 it has created, in particular noting that there are “dangerous conditions” at night, but the City has

6 nonetheless chosen to maintain its policy of providing resources and support to the CHOP

7 occupiers.

8

9. The City’s conduct has enabled the widespread destruction and vandalism of

9 private property. Graffiti is pervasive throughout CHOP—it is not only on barriers, streets,

10 sidewalks, but also on nearly every private building within CHOP. Graffiti that is painted over

11 almost immediately returns, and property owners have been told by CHOP participants that if they

12 dare to paint over graffiti, their buildings will be more severely vandalized or even burned to the

13 ground. The City has done nothing to prevent this conduct, but, instead, has actively endorsed and

14 supported the ongoing occupation of the CHOP area and the destruction of property that

15 accompanies it. As a result, property owners and their tenants have not been able to fully use their

16 properties. Property owners and tenants have, for instance, had to lock and barricade their garages

17 and loading areas at risk of having CHOP participants entering and vandalizing them.

18

10. The property owners, businesses, and residents in the area suffer ever-increasing

19 property damage and economic loss every day that CHOP exists in their neighborhood, all because

20 of the City’s active support, encouragement, and endorsement of the occupation. In particular,

21 Seattle Mayor Jenny Durkan has provided the CHOP participants with not just tangible resources

22 but also a de facto stamp of approval. Her tweets, interviews, and other statements have made it

23 clear that the City is fully aware of what is happening, has no plan or timeline for remedying the

24 ongoing harm, and in fact views the occupation of Capitol Hill as something akin to a perpetual

25 block party.

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1

11. Plaintiffs and others have repeatedly pleaded with Mayor Durkan and others to

2 cease enabling the destruction of their property and the imminent dangers posed to them and their

3 neighborhood. But the City has not listened, or has not cared, and Plaintiffs have had to resort to

4 litigation to make themselves heard.

5

12. Again, this case is not about Plaintiffs’ agreement or disagreement with the

6 inspiration for CHOP, or the viewpoints expressed by the people occupying that area. Instead, it

7 is about the City’s active, knowing endorsement and support of a destructive occupation of a

8 neighborhood to the detriment of the well-being of those who live and work in that neighborhood.

9

II. PARTIES

10

13. Plaintiffs are residents, tenants, property owners, and small businesses in Seattle’s

11 Capitol Hill neighborhood that have been harmed by CHOP. Without an injunction restraining the

12 City from continuing its policies of supporting and enabling the occupation of the CHOP area,

13 each of the Plaintiffs will continue to suffer irreparable harm, by, among other things, being subject

14 to acts of violence, harassment, trespass and vandalism; denial of access to their property; loss of

15 police protection and public services, including trash, medical, and fire services; loss of business

16 revenue; loss of the use of public streets, sidewalks, and parks near or adjacent to their property,

17 residence, or premises; reduction in property value; destruction of property; and other economic

18 and non-economic injuries.

19

14. Plaintiff Hunters Capital LLC (“Hunters Capital”) is a Washington limited liability

20 company with its principal place of business in King County, Washington. Hunters Capital is a

21 real-estate development, investment, and management company, headquartered near Cal Anderson

22 Park in the Capitol Hill neighborhood with offices in the zone occupied by CHOP at 1620

23 Broadway Seattle, Washington. Hunters Capital owns and manages a portfolio of commercial,

24 multi-family residential, and mixed-use properties in the Capitol Hill neighborhood within and

25 around CHOP, including 500 E. Pike Street, 1517 12th Avenue, 401 E. Pine Street, 1000 E. Pike

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1 Street, 900 E. Pine Street, 426 15th Avenue East, 415 18th Avenue South, 523 15th Avenue East,

2 1641 Nagle Place, and 501 E. Pike Street, in addition to other properties in the area it manages.

3 Hunters Capital has suffered, and continues to suffer, economic loss from CHOP. Additionally, its

4 property has been damaged and its tenants and employees have been harassed.

5

15. Plaintiff SRJ Enterprises, Inc. d/b/a Car Tender (“Car Tender”) is a Washington

6 corporation with its principal place of business in King County, Washington. Car Tender is an 7 automotive repair business. Car Tender’s shop is located at 1706 12th Avenue in Seattle,

8 Washington, in the heart of Seattle’s Capitol Hill neighbor and directly bordering the zone

9 occupied by CHOP. Car Tender has been a small business since 1971 and currently has 10

10 employees. Car Tender’s shop has been vandalized and broken into by CHOP participants and its

11 employees have been assaulted. With access for customers cut off by CHOP, it has suffered a loss

12 of business.

13

16. Plaintiff The Richmark Company d/b/a Richmark Label (“Richmark Label”) is a

14 family-owned Washington company with its principal place of business in King County,

15 Washington. Richmark Label is a label printing and manufacturing business located at 1110 E.

16 Pine Street, Seattle, Washington. Richmark Label is one of the largest manufacturing employers

17 on Capitol Hill, with over 70 employees working at its facilities on Pine Street. Due to street

18 blockages and barricades, trucks and delivery vehicles have been unable to access Richmark

19 Label’s manufacturing facility. In addition to its manufacturing facility, Richmark Label also owns

20 property, portions of which it leases to other tenants, in or near CHOP.

21

17. Plaintiff Northwest Liquor and Wine LLC (“Northwest Liquor and Wine”) is a

22 Washington limited liability company with its principal place of business in King County,

23 Washington. Northwest Liquor and Wine operates a specialty liquor, beer, and wine store in the 24 Capitol Hill neighborhood, located on the corner of 12th Avenue and Pine Street at 1605 12th

25 Avenue, Seattle, Washington, directly across from the East Precinct and wholly within CHOP.

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1 Customers cannot access Northwest Liquor and Wine because of CHOP and since the occupation

2 began in early June, the company’s sales have been down approximately 70%.

3

18. Sage Physical Therapy PLLC (“Sage Physical Therapy”) is a Washington

4 professional limited liability company with its principal place of business in King County,

5 Washington. Sage Physical Therapy provides rehabilitative and therapeutic physical therapy to

6 patients from its sole offices on Capitol Hill located at 1125 E. Olive Street, near CHOP. With

7 access for clients cut off by CHOP, it has suffered and continues to suffer a loss of business, in

8 addition to other injuries. Plaintiff Kathleen Caples is the owner of Sage Physical Therapy.

9

19. The Onyx Homeowners Association (“Onyx HOA”) is a Washington registered

10 homeowners association in King County, Washington. Onyx HOA is an association of, and

11 represents, the residents of the Onyx Condominiums located at 1125 E. Olive Street, Seattle,

12 Washington. Onyx Condominiums, located near the area occupied by CHOP participants on

13 Capitol Hill, has 65 units. The building has suffered property damage and theft because of CHOP,

14 the value of the owners’ property has been greatly reduced, and the owners have been harassed

15 and threatened.

16

20. Plaintiff Wade Biller is the president of Onyx HOA. He is also a condominium

17 owner in the Onyx building. In addition to the injuries he has suffered as a resident and property

18 owner in CHOP, Mr. Biller has been physically assaulted by a CHOP participant while attempting

19 to negotiate with CHOP participants in his capacity as President of the HOA.

20

21. Plaintiff Madrona Real Estate Services LLC (“Madrona Real Estate Services”) is a

21 Washington limited liability company with its principal place of business in King County,

22 Washington. Madrona Real Estate Services is a real-estate development and full-service real-estate

23 management company for both commercial and residential properties. Madrona Real Estate

24 Services owns or manages over 250,000 square feet of real estate in Capitol Hill, including

25

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1 property on Pine street and properties in and around CHOP. Madrona Real Estate Services has

2 suffered, and continues to suffer, economic loss from CHOP, among other injuries.

3

22. Plaintiff Madrona Real Estate Investors IV LLC (“Madrona Real Estate Investors

4 IV”) is a Washington limited liability company with its principal place of business in King County,

5 Washington. Madrona Real Estate Investors IV is a real-estate investment company, whose

6 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

7 on Pike and Pine streets. Madrona Real Estate Investors IV has suffered, and continues to suffer,

8 economic loss from CHOP, among other injuries.

9

23. Plaintiff Madrona Real Estate Investors VI LLC (“Madrona Real Estate Investors

10 VI”) is a Washington limited liability company with its principal place of business in King County,

11 Washington. Madrona Real Estate Investors VI is a real-estate investment company, whose

12 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

13 on Pike and Pine streets. Madrona Real Estate Investors VI has suffered, and continues to suffer,

14 economic loss from CHOP, among other injuries.

15

24. 12th and Pike Associates LLC (“12th and Pike Associates”) is a Washington limited

16 liability company with its principal place of business in King County, Washington. 12th and Pike

17 Associates is a real-estate investment company, whose holdings include properties located in the 18 Capitol Hill neighborhood, including in or near CHOP on Pike and Pine streets. 12th and Pike

19 Associates has suffered, and continues to suffer, economic loss from CHOP, among other injuries.

20

25. Plaintiff Redside Partners LLC (“Redside Partners”) is a Washington limited

21 liability company with its principal place of business in King County, Washington. Redside

22 Partners is a real-estate investment and management company, with headquarters in CHOP at 1620

23 Broadway, Seattle, Washington. Redside Partners holds investments in and manages numerous

24 properties in the Capitol Hill neighborhood, including properties in or near CHOP such as 915 E

25

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1 Pine Street. Redside Partners has suffered, and continues to suffer, economic loss from CHOP,

2 among other injuries.

3

26. Plaintiff Magdalena Sky is a small business owner who owns and operates Tattoos

4 and Fortune. Tattoos and Fortune is a tattoo parlor and Tarot studio with a sole location at 1605 5 12th Avenue Seattle, Washington, within CHOP. Ms. Sky is the sole proprietor of Tattoos and

6 Fortune. With access for clients cut off by CHOP, Ms. Sky, through her business, has suffered and

7 continues to suffer a loss of business, in addition to other injuries.

8

27. Plaintiff Olive ST Apartments LLC (“Olive ST Apartments”) is a Washington

9 limited liability company with its principal place of business in King County, Washington. Olive

10 ST Apartments owns two apartment complexes within and right on the boarder of CHOP, located

11 near Cal Anderson Park at 1703 12th Avenue and 1114 East Olive Street, Seattle, Washington.

12 Olive ST Apartments has suffered, and continues to suffer, economic loss from the CHOP, among

13 other injuries.

14

28. Plaintiff Bergman’s Lock and Key Services LLC (“Bergman’s Lock and Key”) is

15 a Washington limited liability corporation with its principal place of business in King County, 16 Washington. Bergman’s Lock and Key’s offices are located at 1714 12th Avenue, Seattle,

17 Washington, in the immediate vicinity of CHOP. Bergman’s Lock and Key provides lock and key

18 services for residential and commercial properties, normally attracting customers from around the

19 Puget Sound area to its Capitol Hill locations. Like other small business, Bergman’s Lock and Key

20 has suffered, and continues to suffer, economic loss from CHOP, among other injuries.

21

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

22 State of Washington. The Seattle Police Department (“SPD”) is a division of the City. Jenny

23 Durkan is the Mayor and chief executive of the City, and a policymaker for the City.

24

25

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III. JURISDICTION AND VENUE

2

30. This Court has subject-matter jurisdiction over this case under 28 U.S.C. §1331

3 because this action presents federal questions and seeks to redress deprivations of rights under

4 the United States Constitution pursuant to 42 U.S.C. § 1983.

5

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

6 giving rise to these claims arose in the Western District of Washington.

7

IV. FACTUAL ALLEGATIONS

8

A. The Creation of CHOP

9

32. On June 8, 2020, with protests ongoing near the East Precinct, the City emptied the

10 East Precinct of all weapons and valuables, and then abandoned it.

11

33. The City left behind at the precinct and in the surrounding areas large barriers that

12 had been used in previous days to try to limit the movements of protesters.

13

34. Predictably, almost immediately after the SPD abandoned the precinct and the

14 barriers, CHOP participants used the barriers to block off streets in the area and create a “no-cop”

15 zone. Initially, the blocked-off area extended to all streets within one block from the precinct.

16

35. Without any police presence, the CHOP participants organized themselves,

17 declared the area “Free Capitol Hill,” and stationed guards by the barriers that the City had

18 abandoned, thereby creating borders for the occupied area. The area later expanded, was referred

19 to as CHAZ for several days, and eventually became known as CHOP.

20

36. CHOP’s unofficial boundaries stretch north to East Denny Way, east to 13th

21 Avenue, south to East Pike Street, and west to Broadway. It encompasses the entirety of Cal

22 Anderson Park and sixteen city blocks in all.

23

B. The Activities of CHOP Participants

24

37. Ever since the SPD vacated Capitol Hill, the CHOP participants have claimed the

25 area as their own with a physical presence and a loose form of governance and justice.

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38. CHOP participants have maintained borders with barriers and people patrolling the

2 perimeter, as well as vehicles parked in the middle of rights-of-way.

3

39. Many CHOP participants live on the streets and sidewalks and in Cal Anderson

4 Park, in tents such as the following:

5

6

7

8

9

10

11

12

13

40. They have painted graffiti on most available surfaces, and if a property owner paints

14 over the graffiti, the graffiti is typically replaced within a few hours. CHOP participants have even

15

16

17

18

19

20

21

22

23

24

25

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1 threatened business owners with retaliation if they paint over graffiti. Examples of this pervasive 2 graffiti include the following: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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41. CHOP participants have created various unpermitted, ad hoc food dispensaries and

2 stores on public property in front of and near private residences and businesses.

3

42. CHOP participants have created a “medical tent” in a private parking lot corner

4 under a festival tent.

5

43. On occasion, CHOP participants have acted as a replacement police force,

6 including by demanding that business owners release individuals who were caught committing

7 crimes and by attempting to perform their own crime investigations

8

44. CHOP participants occupy the streets and sidewalks 24 hours a day, and have

9 speeches, debates, movies, music, and various other activities—including, in some instances,

10 illegal fireworks shows—on the streets and sidewalks. Disturbances and noise pollution extend

11 well past 10 p.m. and typically into the early morning of the next day.

12

45. CHOP participants have been observed carrying guns in the public streets and parks

13 in broad daylight.

14

46. Cal Anderson Park is one of the focal points of CHOP. The approximately 7-acre

15 park, which is ostensibly owned by the City, has been entirely handed over to the CHOP

16 participants. The City has supported and enabled CHOP’s occupation of the park through

17 providing washing/sanitation facilities, portable toilets, and other material support.

18

47. As a result of the City’s actions, Cal Anderson Park has been transformed into a

19 massive tent city for CHOP participants, as shown here:

20

21

22

23

24

25

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48. Members of the public can no longer use Cal Anderson Park. CHOP’s control of

2 the park has not abated, as shown in the below pictures taken the afternoon of June 23, 2020 (local

3 residents attempting to take pictures too close to Cal Anderson Park have been threatened by

4 CHOP participants, who have said they will steal their smartphones):

5

6

7

8

9

10

11

12

13

49. CHOP participants have even built makeshift gardens on the park’s lawn to grow

14 food for CHOP. The City has handed over public property in the park for this use, as shown here:

15

16

17

18

19

20

21

22

50. CHOP’s control of Cal Anderson Park is a central nuisance to local residents and

23 businesses. Many of the Plaintiffs’ properties overlook, border, or are adjacent to the park. Not

24 only are those residents deprived of their use of the park, but problems from CHOP’s encampments

25 in the park spill over into the entire neighborhood. The hundreds of CHOP participants in the park

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1 create excessive noise, even late into the night, in violation of the City’s ordinances. Participants

2 set off fireworks at all hours of the day and night. Trash, feces, and other refuse have built up in

3 the park, affecting the whole area. Worst of all, Cal Anderson Park has been one of the most violent

4 areas of CHOP. Local residents have seen individuals in Cal Anderson Park carrying firearms.

5

C. The Effects of CHOP on Plaintiffs and the Class

6

51. The impacts on Plaintiffs and the Class have been extensive. The experiences of

7 each Plaintiff are described in detail below. However, all Plaintiffs and Class members have in

8 common at least the following harms: a lack of public safety assistance and substantially impaired

9 access to and use of their properties.

10

1. Lack of public-safety assistance even in life-threatening circumstances

11

52. The City’s endorsement and recognition of CHOP has gone so far that the SPD has

12 adopted a policy and practice of not entering the area except in the case of life-threatening crimes,

13 and even then, the SPD response is weak and delayed.

14

53. On information and belief, the SPD considers the area from Denny Way to Union

15 Street and Thirteenth Avenue to Broadway to be a “no response” zone where the SPD will not

16 respond to anything but the most serious crimes.

17

54. And even in the most serious situations, the SPD’s response is unconscionably

18 delayed. As SPD Chief Carmen Best explained on June 11, 2020, as she stood next to Mayor

19 Durkan:

20

SPD has a responsibility to provide public safety services to the

21

entire East precinct and the City. The actions of a small group cannot and should not deprive an entire segment of our community from

22

public-safety services. In the first day of the SPD not having access

to the precinct, response times for crimes in progress were over

23

fifteen minutes, about three times as long as the average …. If that

is your mother, or your sister, your cousin, your neighbor’s kid that

24

is being raped, robbed, assaulted, and otherwise victimized, you’re

not going to want to have to report that it took the police three times

25

longer to get there to provide services to them. The difference in the

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amount of time could protect someone’s life and prevent a violent

1

attack.

2

55. Recent events in CHOP demonstrate that if anything, Chief Best was being

3 conservative in her description of the public-safety emergency in CHOP.

4

56. At approximately 2:20 a.m. on June 20, 2020, there were two people shot in CHOP.

5 At least one of the shootings happened at or near the intersection of Tenth Avenue and Pine Street,

6 around the corner from the abandoned East Precinct. One of the victims died before reaching the

7 hospital. The second was admitted with life-threatening injuries. No suspects have been identified

8 or taken into custody.

9

57. Raw video streamed from the area shortly after that shooting demonstrates the

10 enormity of the risk created by the City for anyone who lives or works in CHOP. That video clearly

11 captured the following:2

12

a. The video appears to start a couple of minutes after the shooting.

13

b. One shooting victim was taken to the CHOP “medic tent” located in a

14

parking lot under a festival tent.

15

c. No professional medics arrived until approximately 15 minutes into the

16

video to tend to the first shooting victim.

17

d. No police were in the area until approximately 18 minutes into the video,

18

when cars and lights and can be seen several blocks away, and police can be heard on

19

megaphones demanding that barriers be moved to allow the police to enter.

20

e. Approximately 19 minutes into the video, a small phalanx of approximately

21

8 police officers entered the area on foot and arrived in the area of the medical tent,

22

apparently for the purpose of trying to locate and extract the first shooting victim.

23

f. The phalanx of officers was immediately surrounded, yelled at, and

24

pursued by CHOP participants.

25
2 https://www.facebook.com/WWConverge/videos/297548387941384/?v=297548387941384

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g. One police car finally entered the area approximately 20 minutes into the

2

video.

3

h. The police did not engage with the crowd and promptly left the area, after

4

which CHOP participants created a human chain across the street to bar any further

5

entry.

6

i. There was a second shooting victim in CHOP located a couple of blocks

7

away. It appears that no medics or police responded at all to the location of the second

8

victim.

9

j. Approximately 35 minutes into the livestream video, the second victim was

10

placed into a plain white cargo van and presumably taken to the hospital. A voice can

11

be heard explaining that Medic One drove by but did not come to the assistance of the

12

person who ended up in the white van.

13

k. Shortly after the second victim was driven away, private citizens began

14

looking for bullet casings. No police were on the scene to perform any investigation in

15

the immediate aftermath of the shooting.

16

58. On June 21, 2020, another shooting occurred in the area at approximately 11:00 at

17 night. There was no police or medic response, and the shooting victim was transported to the

18 emergency room by private vehicle.

19

59. In a press conference with Mayor Durkan on June 22, 2020, Chief Best reiterated

20 the seriousness of the public-safety situation, stating:

21

there are countless individuals who are in the CHOP that are

22

there to engage, as the Mayor said earlier, in peaceful demonstrations. But there are also groups of individuals

23

engaging in shootings, a rape, assaults, burglary, arson, and

property destruction, and I have their police reports right

24

here. [*Holding up a stack of papers*] I’m not making it up.

These things have happened. We cannot walk away from the

25

truth of what is happening there. This is not about politics

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and I’m not a politician. This isn’t a debate about First

Amendment rights. This is about life or death. So we need a

2

plan.

3

2. Impeded access to and use of property

4

60. All Plaintiffs and Class members have not had the ability to use public rights of

5 way, including streets and sidewalks, to access their homes, businesses, and properties.

6

61. CHOP participants regularly move the City-provided barriers and other large

7 objects wherever they wish to block traffic, sidewalks, and all other manner of ingress and egress.

8

62. In many cases, this has meant people cannot use public streets and rights-of-way to

9 enter or exit their homes or businesses, clients cannot visit businesses, and businesses cannot get

10 deliveries. The difficulties are magnified for the elderly and the disabled.

11

63. The barriers and the constant presence of CHOP participants has also meant that

12 residents, property owners, and businesses do not have full use of their property. If they can access

13 their property, safety necessitates that many of them have to keep their doors locked. Many

14 portions of property that are normally freely accessible—such as garages—have to be shut at all

15 hours or else CHOP participants will vandalize them.

16

64. Garbage and recycling cannot enter the area due to the myriad barricades and

17 CHOP border guards, forcing residents and businesses to pile up refuse without any idea when

18 they might be able to discard it.

19

65. Residents and businesses in the area are unable to receive deliveries at their homes

20 because delivery companies cannot or will not enter CHOP and the surrounding area because of

21 barriers and safety concerns.

22

66. Residents in and near CHOP are forced to endure loud noises, music, and even

23 fireworks at all times of the day and night.

24

67. Residents in and near CHOP do not have free and safe access in or out of their

25 homes.

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68. Businesses are unable to operate normally, or even open, because of blocked access

2 and concerns for the safety of their suppliers, employees, and customers.

3

69. All of this is causing extensive economic and other harm to Plaintiffs and all other

4 members of the Class.

5

3. Plaintiffs’ individual stories

6

70. The impact of CHOP on residents, businesses, and property owners is best seen

7 through the stories of Plaintiffs, who are suffering from the City’s policies every day.

8

71. Each Plaintiff and the Class has suffered—and continues to suffer— irreparable

9 economic and non-economic injury as a direct result of CHOP participants’ presence on Capitol

10 Hill. The City’s support for CHOP enables, aids, and abets the ongoing harm to each of the

11 Plaintiffs and members of the Class. Each Plaintiff and Class member will continue to suffer

12 irreparable harm unless restrained by this Court.

13

72. Plaintiff Car Tender. Plaintiff Car Tender—a local small business with one

14 location— has suffered a dramatic drop off in its auto-repair business since the establishment of

15 CHOP. Since early June 2020, business revenues have declined around 40% from the prior months

16 of April and May 2020. This drop in sales actually understates Car Tender’s losses, however, as

17 April and May’s revenues were already lower due to the height of COVID-19 pandemic. In late

18 May 2020, Car Tender’s revenues began an upswing coming out of the shutdown, which was

19 suddenly interrupted by the sharp drop in customers caused by CHOP.

20

73. Car Tender’s loss of business revenue is a direct result of CHOP. Access to the

21 shop has at times been substantially impeded due to barricaded streets. Further, customers have

22 told Car Tender that they will not bring their cars into the shop, out of fear of CHOP located just

23 down the street from Car Tender’s location. Customers have even come to the shop only to

24 immediately turn around and leave, because they were fearful to leave their cars at Car Tender’s

25 location. Because of the City’s enablement of CHOP, Car Tender is struggling to make ends meet.

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74. Car Tender’s premises have also been vandalized by CHOP participants. CHOP

2 participants tore down the fence around Car Tender’s car lot, permanently damaging the cement

3 post such that an entire new fence will need to be constructed. They have also painted and

4 vandalized with graffiti the side of Car Tender’s building. Car Tender is fearful that if the company

5 tries to cover up the graffiti they will face reprisals from CHOP participants, as CHOP participants

6 have threatened to burn down other properties in the area when owners have attempted to cover or

7 clean up graffiti.

8

75. Car Tender’s customers are understandably concerned for their safety, and with

9 good reason. Indeed, Car Tender’s shop was recently broken into by a man who assaulted the son

10 of one of Car Tender’s owners with a knife. The details of the incident demonstrate the extreme

11 risk of harm to which the City has exposed Plaintiffs and the Class.

12

76. On June 14th at around 9:30 p.m., a person broke into Car Tender’s building, armed

13 himself with a knife and a spike that he found inside the building, and lit a fire in the shop. After

14 receiving a call from a neighbor alerting them to the break-in, Car Tender’s owner and son called

15 9-1-1 and then went to the premises themselves, where they found the shop’s garage had been

16 broken into. They found that the property had also been vandalized with Purell hand sanitizer,

17 which the intruder had dumped everywhere to use as fuel for the fire he had started. That fire was

18 still burning when the owner and his son arrived, but they were able to extinguish it. The intruder

19 was still on the premises, however, and he accosted the owner’s son with the knife and spike and

20 abruptly assaulted him by hitting him in the chest.

21

77. Although blindsided by the intruder’s sudden unprovoked attack, the owner and his

22 son were able to wrestle the intruder to the floor in a scuffle. The intruder meanwhile tried to cut

23 the son’s femoral artery and landed two large cuts to his clothing on the side of his leg. He also

24 repeatedly attempted to stab the son with the spike.

25

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78. After subduing the intruder, Car Tender’s owner called 9-1-1 again, reporting the

2 arson, burglary, and assault, requesting police assistance at the scene. Other neighbors also called

3 9-1-1. But, despite the multiple 9-1-1 calls. the police never responded to the scene that evening.

4

79. Several CHOP participants on the street who witnessed the incident approached the

5 shop and demanded the release of the apprehended intruder. Car Tender’s owner at first insisted

6 that he was waiting for the police to come to the scene. An angry mob of CHOP participants,

7 perhaps as many as 500 although possibly more, gathered around Car Tender’s fence and broke it

8 down, insisting on the release of the intruder. Members of CHOP mob insisted that the police

9 would never dare respond. Faced with a threat of mob violence, Car Tender’s owner and son

10 handed the intruder over to CHOP participants.

11

80. Because the police refused to protect Car Tender’s property from burglary and

12 arson, Car Tender’s owner now is forced to sleep at the shop in an effort to protect it. Car Tender’s

13 owner has tried to contact Mayor Durkan’s office to report his concerns as a resident and small

14 business owner, but has received no response.

15

81. Car Tender’s experience is not unique. Other local businesses are also suffering

16 from the City’s actions.

17

82. Plaintiff Richmark Label. Plaintiff Richmark Label is a local family-owned

18 business on Capitol Hill that runs label-printing operations out of a manufacturing facility on Pine

19 Street, directly adjacent to CHOP. Richmark Label’s business has been negatively affected as a

20 direct consequence of CHOP.

21

83. CHOP has frequently blocked access to the 11th Avenue side of Richmark Label’s

22 building, where Richmark Label maintains a loading dock for receiving and shipping. Richmark

23 Label must receive deliveries on an ongoing basis in order to maintain its business as well as make

24 shipment of its products. Richmark Label’s ability to use its loading dock is substantially impeded,

25 as the 11th Avenue access has frequently been blocked by barricades, participants engaged in

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1 intimidation tactics, or other CHOP activities. Some delivery drivers have reported to Richmark

2 Label that they will not even attempt delivery to their building, because it is unsafe. Several

3 delivery drivers who have attempted delivery have been stopped and accosted by CHOP

4 participants. Richmark Label’s usual shippers have refused to deliver and UPS recently elected

5 not to come and pick up a pallet of wine labels for shipment, one of Richmark Label’s largest

6 sources of business. On other occasions, labels have been shipped late, incurring costs and

7 straining Richmark Label’s business relationships with its customers.

8

84. Unable to timely supply its customers, Richmark Label will permanently lose its

9 customers unless public safety and regular access on public streets is promptly restored. The City’s

10 support of CHOP is putting Richmark Label’s business at risk, as well as the livelihood of its over

11 70 employees.

12

85. This loss to business is not the only harm Richmark Label is suffering due to CHOP.

13 Richmark Label owns its facilities, a historic building from 1927, on which the company paid to

14 have an artistic mural painted as a gift to the whole Capitol Hill community. That mural has now

15 been vandalized by CHOP participants beyond repair, whereas before CHOP’s occupation there

16 had only been minor instances of occasional graffiti. Now the wall will have to be repaired and

17 repainted, but Richmark Label is fearful of doing so while it is under a continued threat of

18 vandalism.

19

86.

Richmark Label also owns a parking lot on the 11th Avenue side of the building. It

20 rents the parking spaces during non-business hours. Richmark Label has been forced by CHOP to

21 shut the parking lot down because the roads for accessing the parking lot have frequently been

22 blocked and customers are afraid of entering the area. The company is therefore receiving none of

23 the usual rental income it typically receives from the parking spaces. The parking lot also typically

24 serves as customer parking for Richmark Label and several of its tenants who rent space in the

25

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1 company’s building. But, due to CHOP, both Richmark Label and its tenants are now being

2 deprived of customer parking.

3

87. Unauthorized cars have also parked in Richmark Label’s lot. Richmark Label has

4 contacted towing companies, but all have refused to tow the cars because CHOP makes the area

5 unsafe. Richmark Label has called the police on multiple occasions regarding the unauthorized

6 cars parked on their property, but the police have not acted. Richmark Label has called 9-1-1

7 regarding the unauthorized cars trespassing on their property, only to be told at least twice that

8 SPD is not responding to calls in the area.

9

88. Like Plaintiff Car Tender, Richmark Label has also been threatened with violence

10 by CHOP participants. When CHOP first arose, Richmark Label allowed a local news crew to

11 access its roof to film the protests and CHOP. SPD officers then also accessed Richmark Label’s

12 roof to assess the situation, where they were photographed by CHOP participants. Those

13 photographs were then posted online, leading to a social media frenzy against the company.

14 Subsequently, Richmark Label’s employees have reported that they do not feel safe coming to

15 work, because of the threat of harassment and violence from CHOP participants. CHOP 16 participants have set up cones across 11th Avenue, which must be crossed to access Richmark

17 Label’s building. CHOP participants have been stopping people and requiring them to answer

18 questions about who they are and what they are doing in the area before letting them pass. The

19 result is that customers, shippers, and employees are scared to even enter the area.

20

89. Richmark Label has been in contact with the Mayor’s office, but the office has not

21 been returning the company’s calls, offering any assistance, or providing any opportunity to

22 challenge the City’s decision to authorize the ongoing occupation of the CHOP area. The City’s

23 support of CHOP through encouragement and material support has enabled CHOP’s threat to

24 Richmark Label’s business.

25

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90. Plaintiff Northwest Liquor and Wine. Northwest Liquor and Wine—a one-location

2 store specializing in high-end wine, beer, and spirits—is yet another local small business that has

3 suffered since CHOP occupation began in early June. After record sales in May 2020, the store is

4 having its worst month in June 2020 since opening at that location in 2012. In June 2020, the

5 company’s sales have been down approximately 70% from average and sales are continuing to

6 sink, threatening the company’s ability to pay its rent.

7

91. Customers are unable to visit the store because the surrounding streets have been

8 blocked off to traffic. Northwest Liquor and Wine has access to an adjacent parking garage, but

9 they have been forced to close it to prevent CHOP participants from camping out in it and even

10 starting fires. CHOP barricades have also meant that suppliers have been unable to make

11 deliveries.

12

92. The owners and employees do not feel safe, as there have been disturbances in the

13 store and people on the streets nearby carrying guns. Northwest Liquor and Wine normally

14 maintains around 4 to 6 employees. Since CHOP started, its employees have understandably been

15 too scared to come to work out of concern for their safety.

16

93. Plaintiff Sage Physical Therapy. Plaintiff Sage Physical Therapy (“Sage”) is

17 another small business suffering losses because of CHOP. When CHOP started in early June,

18 clients immediately stopped coming, saying that they are scared to come near CHOP. Additionally,

19 the few clients willing to venture near CHOP have found Sage’s offices to be inaccessible, as many

20 of the nearby streets have been blocked, and even on the few streets in the area that have not been

21 blocked, the City has ceased enforcing parking restrictions, allowing vehicles to remain parked

22 indefinitely. As a result, there is no parking and Sage’s offices are therefore not accessible to its

23 clients. The lack of access if is especially hard on Sage’s clientele, as many are seeking therapy

24 for injury and are unable to walk far. Sage’s clients have been canceling their appointments,

25 because of CHOP.

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94. Even one of Sage’s patients who resides within walking distance of Sage’s offices

2 has been unable to access Sage’s building due to CHOP. Sage has a patient who resides in an

3 apartment building inside CHOP. The patient is on crutches from traumatic leg injury. She resides

4 only a short distance from Sage, but the City has enabled CHOP to place barriers across sidewalks,

5 and different barricades pop up near Sage every day. Sage’s injured patient is not able to navigate

6 around the barriers and the patient has reported to Sage that she upset about not being able to get

7 to her much-needed therapy appointments.

8

95. Sage’s owner also fears violence from the presence of CHOP. After CHOP arose,

9 she observed a van parked outside Sage’s office with an automatic weapon in the front seat and a

10 plywood barrier and padlock so that the back of the van was not visible. Sage’s owner is aware

11 that CHOP participants nearby have reportedly highjacked vehicles. Sage’s owner is also aware of

12 an incident involving another local business owner known to Sage’s owner. After that business

13 owner’s store was closed for the day, a CHOP participant demanded to use the store’s restroom,

14 exposed himself to the female owner, and then attempted to assault the business owner, who

15 fortunately was able to flee the scene. These incidents of violence against local businesses,

16 compounded with a loss of business revenue, have caused Sage’s owner physical stress, forced her

17 to keep the office door locked at all time making business impossible, and acerbated her

18 hypertension.

19

96. One of Sage’s clients reported that he was scared to come to his appointment

20 because of CHOP, but decided that because he was in so much physical pain, he needed his therapy

21 treatment. He parked near 11th Avenue for his appointment. He ended his appointment early,

22 however, because he was concerned about a passing protest of CHOP participants. Upon returning

23 to his car, he found that all four tires had been slashed by CHOP participants. He reported to Sage

24 that, even though he suffers from pain and needs treatment, he will not attempt to come to future

25 appointments because of CHOP.

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97. Adding to Sage’s difficulties, Sage’s internet cable has been cut, and Sage has been

2 unable to schedule an appointment for a Wave Cable technician to come fix the internet access

3 because of the presence of CHOP. This has put Sage at imminent risk, as Sage’s security

4 cameras—much needed under the current circumstances—require internet access and are therefore

5 currently inoperable.

6

98. To date, Sage has lost considerable revenue from patient cancellations due to

7 CHOP, which places considerable strain on a small business like Sage. Around 60% of patients

8 have canceled their appointments.

9

99. Sage employs three physical therapists and one personal trainer. Their livelihoods

10 are now threatened by CHOP. Sage’s company motto is: “Unapologetically fighting for good.” All

11 of its employees are supporters of Black Lives Matter and pride themselves on providing a place

12 of inclusivity and respect. The City has not listened to their concerns.

13

100. Sage’s owner has written to Mayor Durkan to complain about the current situation,

14 as well as the difficulties CHOP has caused for many of Sage’s disabled clients. That letter reads:

15 “My business Sage Physical Therapy is located at the corner of 12th Ave & E. Olive St within the

16 CHAZ footprint. I have patients that live in the CHAZ neighborhood that are on crutches due to

17 their injuries. They need physical therapy but they can’t get to my office because they can’t

18 navigate the barricades. The sidewalks are blocked with heavy barricades. My patients aren’t able

19 to access the disabled parking and loading zones because non-disabled people are parking there.

20 People aren’t able to receive the care they deserve. The roads and sidewalks need to be cleared. I

21 would like to remind you about the Americans with Disabilities Act. Blocking the road and

22 sidewalk is against the ADA. This current environment on Capitol Hill is unacceptable!!! Let’s

23 not forget about people with disabilities. As a business owner, I feel abandoned by the city. This

24 is unacceptable. The City of Seattle is violating ADA regulations.” The Mayor has not responded.

25

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101. Plaintiff Magdalena Sky (Tattoos and Fortune). Plaintiff Magdalena Sky is an

2 activist and supporter of Black Lives Matter. Ms. Sky is the sole proprietor of Tattoos and Fortune.

3 Ms. Sky is autistic and has worked tirelessly for years using her unique artistic skills to support

4 and grow her business. Her business is her own safety net and primary source of income. Now,

5 CHOP is ripping that business out from under her feet.

6

102. Like many other local businesses, Tattoos and Fortune is sinking because of the

7 City’s support of CHOP. Ms. Sky’s tattoo and fortune telling services depend on regular client

8 access to its Capitol Hill studio. Tattoo and Fortune’s studio is within CHOP, which has made

9 client access impossible. The barricades and encampments have blocked both vehicle and foot

10 access to the studio, as well as delivery of vital business supplies, just as they have blocked the

11 roads, parking, doorways, and driveways of many local businesses. As a result, Ms. Sky has been

12 forced to close Tattoos and Fortune’s doors. Without clients, Tattoos and Fortune cannot generate

13 any revenue. In addition, Tattoos and Fortune is suffering from the lack of trash service, access for

14 emergency services, and police protection. Even if Ms. Sky’s clients had access to the studio, many

15 would be fearful to come because of CHOP. To reach her business, her clients would need to cross

16 barricades that CHOP participants have set up, where they might be stopped, questioned, and/or

17 harassed by CHOP participants, as others have been.

18

103. Ms. Sky herself has witnessed theft and looting from other local businesses and

19 fears CHOP participants might steal and loot from her business, should she even try to open her

20 studio’s doors. On one occasion, Ms. Sky was followed and harassed, like so many others have

21 been due to the rise in harassment and sexual assault in the area since CHOP began. The fear of

22 violence has caused Ms. Sky stress, exacerbated by her autism. The City has ignored her concerns,

23 as with the mental health of many local residents and business owners. Her business—her primary

24 means of livelihood—is losing all its revenue. Some of her clients may never return, as they have

25 already canceled appointments and gone to other businesses.

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104. Capitol Hill is a diverse neighborhood, known for its minority presence and as a

2 center for Seattle’ LGBTQ residents. Many small business owners in the area are minority-owned

3 and suffering loss of property and business from CHOP, just as Tattoos and Fortune is. The City

4 and CHOP have not responded to concerns of small businesses like Ms. Sky’s Tattoos and Fortune.

5 Ms. Sky, along with other local business owners, has no forum in which to voice her concerns and

6 try to stem her businesses losses, accruing each day CHOP continues.

7

105. Plaintiff Bergman’s Lock and Key. Plaintiff Bergman’s Lock and Key is a small

8 business that has operated on Capitol Hill since 1956.

9

106. Bergman’s Lock and Key’s employees are not safe to come to work due to CHOP.

10 Several on their way to or from work have been followed by CHOP participants wielding baseball

11 bats, who threatened them not to come into the area. To protect its property from CHOP

12 participants, Bergman’s Lock and Key has been forced to board up its premises. Its building has

13 been tagged with graffiti and vandalized. Because CHOP becomes more dangerous as the day

14 progresses, the company closes around 3:00 p.m., two and half hours before its normal 5:30 p.m.

15 closing time.

16

107. Bergman’s Lock and Key is suffering financially. Its customers cannot access the

17 store due to roadblocks, barricades, and lack of parking caused by the City’s support of CHOP.

18 Other customers are simply too scared to come, because of Bergman’s Lock and Key’s proximity

19 to the CHOP zone. Customers have called citing their fears and the company has been forced to

20 refer them to competitor businesses outside of the CHOP area. Bergman’s Lock and Key’s

21 revenues have already declined this month by 60%, due to CHOP. Bergman’s Lock and Key was

22 able to maintain working as an essential business during the COVID-19 shutdown, but now CHOP

23 has stopped nearly all customers from coming in. Business deliveries and shipments are also

24 routinely delayed.

25

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108. The City has been actively supporting CHOP participants near Bergman’s Lock

2 and Key. The City has provided cleaning stations for CHOP participants, large stainless-steel

3 sinks, and portable toilets.

4

109. Bergman’s Lock and Key has tried to complain to the City, but has received no

5 response.

6

110. Plaintiff Onyx HOA. Plaintiff Onyx HOA is an association of Capitol Hill residents

7 and condo owners in the Onyx Condominium building. The HOA and its residents have suffered

8 harm from CHOP. The Onyx Condominium’s residents feel unsafe and are constantly barraged by

9 excessive noise, fireworks, and other nuisances. The building has been subject to graffiti and other

10 acts of vandalism at the hands of CHOP participants. The HOA and its residents have called 9-1-

11 1, but have received no response or direction from the City. The HOA’s insurer has threatened to

12 raise rates and premiums soon if CHOP is not disbanded. Tenants are already planning to leave,

13 which will only make it harder for the tenants that do remain to fund the HOA. All tenants have

14 lost value in terms of property values as a direct result of the City’s support of CHOP.

15

111. The Onyx Condominiums are on the border of CHOP. As a result, Onyx

16 Condominium residents’ access to their own homes has been impeded, due to barricades on the

17 public streets. For example, the president of Onyx HOA, individual Plaintiff Wade Biller, has been

18 stopped by CHOP participants at the barricades and told he is not allowed to drive through. He has 19 also been stopped by a CHOP participant while trying to drive down 12th Avenue to access his

20 home. At other times, so-called “security” for CHOP has come to the barricades and offered to

21 escort him into the area to access his home so that CHOP participants do not vandalize his car.

22

112. CHOP participants recently stole an expensive compact dumpster bin belonging to

23 Onyx HOA. Onyx HOA’s president, Mr. Biller, demanded the bin back, but CHOP participants

24 refused to return it. During negotiations for return of the bin, Mr. Biller was assaulted by a CHOP

25 participant who violently kicked him in the back as he tried to leave the scene. The HOA president

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1 called the police, but the police did not respond to the incident of battery and assault for more than

2 90 minutes, by which point the perpetrator was long gone. Eventually, when CHOP participants

3 had access to city-owned barricades to encircle CHOP, the compactor bin was returned.

4

113. Onyx HOA has been forced to hire additional security to protect the property and

5 its residents from the CHOP participants. At any time, two to four armed guards must be present,

6 as some CHOP participants in the area have been violent and are themselves armed with guns. The

7 HOA’s residents live under constant fear and threat to their wellbeing and property.

8

114. Mr. Biller, in his capacity as Onyx HOA’s president, wrote to Mayor Durkan on

9 June 11, 2020, about the plight of the building’s residents. He wrote: “We are fending for ourselves

10 as residents and businesses in the Capitol Hill neighborhood. We have had to hire private security

11 to help keep tabs on the escalating issues . . . . I ask that you take a strong stance and allow the

12 police to reclaim our streets for the residents who live here and don’t [want] to become part of this

13 anti-police and anti-government movement.” Mayor Durkan has not responded or provided any

14 opportunity to challenge the City’s policies supporting the occupation of the CHOP area.

15

115. Madrona Real Estate Plaintiffs. Plaintiffs Madrona Real Estate Services, Madrona

16 Real Estate Investors IV, Madrona Real Estate Investors VI, and 12th and Pike Associates LLC

17 (collectively “Madrona Real Estate”) are suffering economic loss from CHOP, including in the

18 form of reduced rents, property damage, and a decline in property values. Their tenants—Capitol

19 Hill’s local residents and businesses—are also being harmed and harassed.

20

116. Madrona Real Estate owns and/or manages multiple residential and commercial

21 buildings on Capitol Hill in and around CHOP. The presence of CHOP is greatly reducing the

22 value or property in what was, until recently, one of the most popular and expensive neighborhoods

23 in Seattle.

24

117. A resident in a building managed by Madrona Real Estate recently called 9-1-1 to

25 respond to an incident of violence near Madrona Real Estate’s building at 1414 12th Avenue. The

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1 resident had witnessed from her condo’s patio a fight in the street occurring at or near the 2 intersection of 12th Avenue and Union. The resident saw what appeared to be a man and a woman

3 fighting over a child, causing the woman to run into a nearby building and barricading the door to

4 block the assaulting man. The resident called 9-1-1, who took her name and number. She waited

5 for hours, but police never responded to the incident or called her back. This is just one example

6 of the lawlessness the City has enabled in the area. The same resident has normally walked her

7 dog in the neighbor, but now is hesitant to leave her residence. She has witnessed CHOP

8 participants openly doing hard drugs on the street around her building with impunity due to the

9 lack of any SPD presence.

10

118. The same building at 1414 12th Avenue managed and owned by Madrona Real

11 Estate has been broken into by CHOP participants, who have vandalized the building, pulled out

12 pipes, and even pulled the fire alarm and set off the sprinkler system (causing evacuation of the

13 building’s over 100 residents and flooding in the building garage). Residents have also reported

14 that CHOP participants have stolen boxes and other items from residents. CHOP participants have

15 trespassed on the property and defecated in building’s lobby.

16

119. At other locations in the area, Madrona Real Estate’s residents have reported that

17 their condos have been broken into or burglarized by CHOP participants. CHOP participants have

18 harassed residents, vandalized the Madrona Real Estate’s property, and left human feces on

19 multiple premises.

20

120. SPD has refused to help Madrona Real Estate to protect private property or

21 otherwise to help address these problems. At considerable expense, Madrona Real has had to hire

22 increased private security to protect its residents and property. At the building where the fire

23 system was vandalized, Madrona Real Estate has incurred considerable expense in fixing the

24 damage to property and has even had to pay for a fire watch to be instituted.

25

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121. On the morning of June 23, 2020, one of Madrona Real Estate’s commercial

2 tenants, a restaurant located at 12th Avenue and Pike Street, near but not directly in the CHOP

3 blockaded area, was attempting to access its location in an effort to try to reopen. However, the

4 entrances and stoop area in front of the restaurant were entirely blocked by an encampment erected

5 by a CHOP participant. The tenant called the police, asking for assistance in removing trespassers

6 from its private property, so that it could access and open up the property. The police said that they

7 would not respond because they “are not allowed to come within two blocks of CHOP”.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

122. Clearly, the City’s refusal to even respond to assaults in the neighborhood, let alone

22 take any measures to ensure public order and access, is detracting from the area’s desirability for

23 current and potential residents and businesses. At a new property Madrona Real Estate has opened

24 in the area with 45 residential units, only 3 have been leased. Up until the emergence of CHOP the

25 area was among the trendiest location for residents, but, since the emergence of CHOP, Madrona

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1 Real Estate has suddenly had no interest in the 42 unleased units, because no one is interested in

2 moving near CHOP.

3

123. Madrona Real Estate’s residents and tenants face other hardships as well. Many of

4 the area’s millennial residents regularly shop online, but, according to Madrona Real Estate’s

5 residents and tenants, Amazon will not deliver packages in area, due the barricaded streets and

6 presence of CHOP participants. The inability to purchase or ship through Amazon is even more

7 acutely felt now in the midst of the COVID-19 pandemic, when many people rely on deliveries to

8 safely deliver food, medicine, and other essential items.

9

124. Most of Madrona Real Estate’s commercial tenants want to open but are unable to

10 do so, because they are fearful of CHOP, have no way of attracting customers, and/or cannot be

11 accessed due to blocked streets. Unable to generate revenue, many of these tenants are asking

12 Madrona Real Estate for rent relief. Many are small, locally owned stores. Madrona Real Estate

13 has been giving concessions in the form of free rent, resulting in economic loss, but even so many

14 of the small commercial tenants are still facing bankruptcy.

15

125. The City’s policies with respect to CHOP have resulted in other sources of

16 economic loss to Madrona Real Estate. For example, Madrona Real Estate operates a parking

17 garage near CHOP. But, since the occupation of the CHOP area started, nearly no one is coming

18 to the area to shop or dine. Parking revenue this month is only a small fraction of the average.

19

126. Madrona Real Estate has complained to the City and even sent a letter to Mayor

20 Durkan. Mayor Durkan has not responded or even acknowledged the plight of the many residents

21 Madrona Real Estate services, let alone provided any recourse to challenge the City’s policies and

22 conduct.

23

127. Plaintiff Hunters Capital. Plaintiff Hunters Capital is a real-estate company that

24 owns or manages multiple residential, commercial, and mixed-use buildings on Capitol Hill in and

25 around CHOP. Like Madrona Real Estate, the presence of CHOP is causing economic injury to

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1 Hunters Capital, including loss of revenue, damage to property, and decline in property value.

2 Hunters Capital has recently had investors back out of Capitol Hill development projects, citing

3 CHOP as the reason to withdraw. Every day the City supports the ongoing occupation of CHOP,

4 Hunters Capital incurs further irreparable harm.

5

128. Hunters Capital property and employees have also been threatened by CHOP

6 participants. For example, a Hunters Capital maintenance employee was recently attempting to 7 clean up CHOP graffiti at a Hunters Capital building located near 10th Avenue and Pike Street at

8 around 7:00 am in the morning. As he started to paint over the graffiti, the worker was accosted

9 by a group of CHOP participants. The participants ordered him to stop removing the graffiti and

10 threatened to burn the building down if he did not comply. Because of the threats, the maintenance

11 worker left without painting over the graffiti, emotionally distraught due to the threats of violence

12 and arson.

13

129. Hunters Capital’s residential tenants are finding that the area around CHOP is now

14 unlivable. For example, they have reported numerous noise and safety concerns. Although the City

15 has a noise ordinance, it is not enforced in and around CHOP. CHOP participants are violating the

16 ordinance late into every night, even setting off fireworks into the early hours of the morning.

17 Hunters Capital’s residential tenants simply cannot sleep and are being deprived of their right to

18 quiet enjoyment of their homes. Hunters Capital has repeatedly written to the City, but the City

19 has not responded to the concerns or provided any recourse or ability to challenge the City’s

20 policies or conduct with respect to CHOP.

21

130. Hunters Capital’s residential tenants have also reported concern for their physical

22 safety. Many who used the local Cal Anderson Park for recreation or to walk their pets no longer

23 do so because of safety concerns and rampant public drug use. Incidents of assault and harassment

24 have occurred in the area. Hunters Capital’s residents recently witnessed a peaceful individual

25 forcefully removed from the area by CHOP mobs. Female renters in particular have reported

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1 concerns about their personal safety, in light of numerous reported instances of sexual assault

2 within CHOP. Some residential tenants have threatened to break their leases at properties owned

3 by Hunters Capital because of the extensive problems created by CHOP.

4

131. Hunters Capital’s commercial tenants are also suffering. Many report that they

5 cannot open, because they fear doing so will expose them to looting and arson. Many tenants have

6 themselves witnessed assault, theft, and looting. These commercial tenants have been forced by

7 CHOP to close and board up their stores in order to protect them. Some commercial tenants

8 physically could not open under any circumstances, as CHOP participant have blocked the store

9 entrances, including by setting up residential areas for CHOP participants on public streets and

10 sidewalks with tents. Unable to open, Hunters Capital’s commercial tenants are struggling. Many

11 are small businesses and storefronts that depend on visitors coming to Capitol Hill. Many currently

12 cannot pay their rent as a direct consequence of CHOP.

13

132. Other Hunters Capital commercial tenants with office space in the area have

14 reported that they are unable to come to work at their office space, because of blocked access and

15 fear of CHOP participants. Additionally, the commercial office tenants have reported that the noise

16 issues are so serious that they and their employees are unable to use their office space for work.

17 Loud speeches and chanting at all hours of the day simply make normal working conditions

18 impossible. The vast majority of Hunters Capital commercial-office tenants report that they and

19 their employees are simply unable to come to work at all.

20

133. Hunters Capital’s tenants have already begun to leave because of CHOP, and others

21 cannot pay rent. Every day that passes more of the company’s tenants leave the area, at

22 considerable loss to Hunters Capital. Further, there is no interest from prospective tenants. As long

23 as CHOP remains, nearly no one is interested in relocating to the Capitol Hill neighborhood.

24

134. Plaintiff Olive ST Apartments. Olive ST Apartments is another small business on

25 Capitol Hill that is struggling because of CHOP. Olive ST Apartments owns two apartment

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1 buildings close to Cal Anderson Park. Previously a desirable location for renters, life for Olive ST

2 Apartments’ tenants has now become unlivable. The tenants have been terrified by CHOP

3 participants carrying guns, in additional to the rampant violence, harassment, and vandalism in the

4 area caused by CHOP. Olive ST Apartments’ owner has been videotaped and harassed while trying

5 to move a garbage dumpster several blocks outside of CHOP just so the garbage could get picked

6 up.

7

135. Due to safety concerns, Olive ST Apartments has been forced to hire private

8 security. Nevertheless, Olive ST Apartments’ buildings have been covered with graffiti multiple

9 times. The company has tried cleaning the graffiti off, only for its buildings to be vandalized again.

10 On several occasions, CHOP participants have attempted to break into its buildings, once breaking

11 the lock box for mail. Olive ST Apartments has called the police, but the police told Olive ST

12 Apartments’ security guard that they would not send anyone to the area.

13

136. The noise, including from Cal Anderson Park, has also made conditions for Olive

14 ST Apartments’ tenants unlivable. The company receives constant complaints about the noise at

15 all times of day and night, including gun shots. Tenants have left to avoid the noise.

16

137. In addition to ceding the nearby Cal Anderson Park to CHOP, the City has

17 supported the CHOP participants near Olive ST Apartments by providing them with barricades,

18 lights, toilets, handwashing stations, and fire extinguishers. The City allows CHOP participants to

19 use bright lights at Cal Anderson Park to facilitate CHOP activities there, causing a nuisance to

20 Olive ST Apartments’ tenants.

21

138. Given the unlivable conditions, it is impossible for the company to rent its

22 apartments. Tenants are already moving out because of the nearby presence of CHOP. No new

23 renters have interest in moving to the area. Each day CHOP continues, Olive ST Apartments incurs

24 further harm and economic loss.

25

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1

139. Plaintiff Redside Partners. Plaintiff Redside Partners performs real-estate

2 management services to buildings near CHOP. Its business is also being hurt by CHOP. Redside

3 Partners employees have reported that they do not feel safe coming to work, as the company’s

4 offices are near Cal Anderson Park. The company’s employees report widespread lawlessness,

5 including vandalism, graffiti, and public drug use affecting the buildings the company manages.

6 CHOP participants have trespassed on Redside Partners’s properties, including climbing up fire

7 escapes to get on building roof tops. Redside Partners has complained to the City but has received

8 no response.

9

140. Capitol Hill’s real-estate companies like Plaintiffs Madrona Real Estate, Hunters

10 Capital, and Redside Partners have invested millions of dollars over the years to turn Capitol Hill

11 into a desirable location, with modern condos, restaurants, and shops. They have made investments

12 in new, state-of-the-art buildings and the restoration of many historic buildings. Over the last

13 several decades, they have helped transform Capitol Hill into one of the nation’s most vibrant and

14 architecturally attractive neighborhoods, a diverse melting pot for both local residents as well as

15 tourists, with the City’s best boutique shopping, dining, socializing, and urban living. It has

16 fostered a livable community for many new residents and a superstructure for many thriving small

17 businesses, which employ thousands of employees from a diverse set of backgrounds. The

18 immense value and wealth this has created, for Plaintiffs, the Capitol Hill community, and Seattle

19 more generally is actively being destroyed by the City’s actions.

20

D. The City Has Actively Supported and Encouraged CHOP the CHOP Participants.

21

141. In the face of all this destruction, City leaders, including Mayor Durkan, have

22 embraced the existence, message, and methods of CHOP and CHOP Participants. They have done

23 this with physical support and extensive verbal support and encouragement that has expressly

24 endorsed the barricading and occupation of City streets and parks.

25

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1

142. Since the day that the City abandoned the East Precinct, the City has had full

2 knowledge of the problems created for businesses and residents in and around CHOP, including

3 property damage, lack of police response, the inability for workers and residents to enter and leave

4 the area, the inability for businesses to receive deliveries, and other adverse impacts on residents,

5 businesses, and property owners in the area. The City has nevertheless adopted a policy supporting

6 the CHOP occupation, acting with deliberate indifference toward those suffering harms from it.

7 Evidence of the City’s knowledge includes the following:

8

a. At a June 11, 2020 press conference with Mayor Durkan, Chief Best made

9

it clear that the City was fully aware that its 9-1-1 response times had tripled and that

10

there was a serious public-safety crisis for anyone who lives or works in CHOP.

11

b. On June 16, 2020, the City stated, via a press release from the Mayor’s

12

office:

13

Beginning last Tuesday, City officials have been on site on Capitol

14

Hill to work [to] meet community needs including hygiene, sanitation and safety. Utilities including Puget Sound

15

Energy and SPU have been able to respond to the area for service.

Seattle Police Chief Carmen Best has visited the site multiple

16

times. Over the past week, conversations continued between City

officials, organizers onsite for the CHOP, residents and

17

businesses. … Every day, Seattle Fire Chief Harold Scoggins,

Seattle Department of Transportation Director Sam Zimbabwe,

18

and Seattle Public Utilities General Manager Mami Hara have

been on site. On Sunday, they held a meeting with onsite

19

organizers, small businesses, and residents to discuss proposed

20

changes to the protest zone.

c. On information and belief, Mayor Durkan and the SPD have been inundated 21

with complaints about CHOP that describe in detail the extensive property damage, 22

restricted access, and economic loss that residents, businesses, and property owners are 23

suffering. 24

d. In response to at least some requests from desperate businesses and 25

residents for her to cease her support of CHOP, Mayor Durkan’s office has provided a

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1

stock response acknowledging that the City is “maintaining” a space for CHOP,

2

including by, for example, providing a “sturdier concrete barrier” to help CHOP block

3

a public street. The stock response states in part as follows:

4

Thank you for reaching out.

5

The Capitol Hill Organized Protest has emerged as a gathering

6

place where community members can demand change of their

local, state, and federal government. Capitol Hill and Cal

7

Anderson Park have long been a gathering place for justice. While

there have been inaccurate and misleading depictions of the CHOP

8

from the President and some national media, the City believes first

amendment activities can continue while also maintaining public

9

safety and allowing access for residents and businesses who

operate in the area. Mayor Durkan believes these changes can help

10

ensure any focus of the CHOP and Cal Anderson will allow for

11

peaceful demonstrations to continue.

12

Beginning last Tuesday, City officials have been on site on Capitol

Hill to work [to] meet community needs including hygiene,

13

sanitation and safety. Utilities including Puget Sound Energy and

SPU have been able to respond to the area for service. Seattle

14

Police Chief Carmen Best has visited the site multiple times. Over

the past week, conversations continued between City officials,

15

organizers onsite for the CHOP, residents and businesses. The

City is committed to maintaining space for community to come to

16

together, protest and exercise their first amendment rights. Minor

17

changes to the protest zone will implement safer and sturdier barriers to protect individuals in this area, allow traffic to move

18

throughout the Capitol Hill neighborhood, ease access for

residents of apartment building in the surrounding areas, and help

19

local businesses manage deliveries and logistics. Additionally all

plans have been crafted with the goal of allowing access for

20

emergency personnel including fire trucks.

21

Every day, Seattle Fire Chief Harold Scoggins, Seattle

Department of Transportation Director Sam Zimbabwe, and

22

Seattle Public Utilities General Manager Marni Hara have been on

23

site. On Sunday, they held a meeting with onsite organizers, small

businesses, and residents to discuss proposed changes to the

24

protest zone. In coordination with protesters onsite, work began at

6:30 a.m. on Tuesday to remove a tent barrier at 10th and Pine and

25

replace it with a sturdier concrete barrier to improve public safety.

The City has successfully worked with protesters onsite to

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reconfigure the CHOP to allow for public safety and better access

1

for the local community. That has involved rerouting traffic,

2

freeing up alley access, opened streets, and replacing makeshift barriers with heavy concrete barriers that can be painted.

3

4

e. In addition to the numerous City officers listed above, Mayor Durkan

5

herself has personally visited CHOP and has seen what is happening. In an interview given

6

in her City offices on Facebook Live on June 12, 2020, Mayor Durkan made clear that she

7

had seen the barriers and talked to CHOP participants and apparently approved of them

8

using an individual with behavioral health issues to enforce the perimeter: “It’s interesting,

9

when I was at the CHAZ, walking around, similar kind of philosophy, because there’s this

10

one guy, some behavioral health issues, and it was like, look, he has some hard times, and

11

he helps on that barricade over there, and then when he starts having a hard time, we just

12

bring him over here, take care of him, feed him. And that’s what you gotta do, right?”3

13

f. On June 22, 2020, Mayor Durkan stated at a press conference:

14

Over the days, tens of thousands of people have peacefully gathered

or visited Capitol Hill. During the day, there have been no major

15

incidents. But we know it is very different at night, particularly in

16

recent nights. The cumulative impacts of the gatherings and protests and the nighttime atmosphere and violence has led to increasingly

17

difficult circumstances for our businesses and residents. Most of

them supported protesters’ right to gather at the outset. They stand

18

with them in solidarity. But the impacts have increased, and the

safety has decreased. Both on Saturday morning and last night there

19

were incidents of gun violence. And that escalating violence

concerns me, Chief Best, residents, businesses, and the greater

20

community. All of Capitol Hill has been impacted.

21 3 https://www.facebook.com/WWConverge/videos/250593506242797/?__tn__=kC-
R&eid=ARBT9Zl4Zd0BnqFUyG1bgaapWeIo6meLrp9YI7QgilK36tLAFfNcpij4zHFTEwP0wNzoVQK7O1LPtpa8
22 &hc_ref=ARTeZJ-
MVhRABE0ZxnSxzApxaoAJVsmqCzhgB7vaP0wwkcuhf0CtwXnjqpvqfAIKLQk&__xts__[0]=68.ARDhXBScmD
23 _P9GnI4X2NL4z0eUgRkuV8hj_BUWpBgtqxg133nAdZz00w2pqmYlrfVrVanpZgUlgy2rw9hbGAwTWLjcxp1fAP
AVjYhDHpvEOpeSmJavdPNPPlK_wodfv_idPwOeVfsbgsB04YjUKfXfnUZvddSThmUspA_o5oqETWWFluP2o_
24 Yh-
tP64swtkdKoXl374Vd0zqTxRoapQChSzCt5dXToGlW6ESVGiUVQznk42YXs8U2lpzAwJmp99RXyrNW3fSYzU
25 cPopUKTNN-
KP7EBDNdje9UibYcP84111ipRk31bjIk5XrSRcU2rjmqzsd_KjoOwrpoHYKssQd5Vnwe6OvBXCSGW_4ctaQKX
mwUcmaTA

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1

g. At the same June 22, 2020 press conference, Chief Best stated that reports

2

to the police demonstrate that some CHOP participants are “engaging in shootings, a rape,

3

assaults, burglary, arson, and property destruction, and I have their police reports right here.

4

I’m not making it up. These things have happened.”

5

143. Despite having knowledge of exactly what is happening at CHOP by being there

6 every day and in apparently constant contact with area residents and business owners, the City has

7 acted with deliberate indifference toward the safety and property interests of those residents and

8 businesses.

9

144. The City has not restored regular policing to the area in or around CHOP or

10 improved 9-1-1 response in or around CHOP.

11

145. The City has also enabled the blocking of ingress and egress for businesses and

12 residents in the area, without providing plaintiffs any notice of this deprivation or opportunity to

13 be heard on the matter. Reportedly, the City reached an informal agreement with CHOP

14 participants to allow limited one-way access on Eleventh and Twelfth Avenues starting on June

15 16, 2020 (Plaintiffs were not invited to participate in these negotiations). However, as part of that

16 agreement, the City actually fortified the rest of CHOP with new barriers (again without providing

17 Plaintiffs notice or an opportunity to be heard on the matter). And even the planned limited access

18 for some streets almost immediately broke down when CHOP participants reestablished

19 impediments. The City’s response to this was apparently to do nothing.

20

146. At the same time that the City has acted with deliberate indifference to property

21 owners and people who live and work in and near CHOP, the City has physically aided, endorsed,

22 and actively encouraged CHOP participants to continue their occupation of public spaces.

23

147. The City has physically aided CHOP participants in their occupation of the area in

24 at least the following ways:

25

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1

a. When the City abandoned the East Precinct on June 8, 2020, it left behind

2

the barriers that had previously blocked street access and protected the East Precinct from

3

protesters. These barriers foreseeably served as the raw materials that allowed CHOP

4

participants to block streets and create CHOP within a very short time.

5

b. On June 16, 2020, the City provided even more concrete barriers to CHOP

6

participants so that CHOP participants could replace wooden barriers and fortify their

7

blockages of streets.4

8

c. The City has provided portable toilets for CHOP participants that are

9

regularly serviced.

10

d. The City has provided medical equipment, including beds and other

11

supplies, to the CHOP “medical tent.”

12

148. The City’s policies have effectively authorized the actions of the CHOP

13 participants. The City has communicated clearly to CHOP participants that they may indefinitely

14 continue occupying the streets in the area, maintaining their barricades, and blocking traffic, all

15 without interference from the City. The City has communicated this message in at least the

16 following ways:

17

a. On June 11, 2020, during a joint press conference with the Chief of Police,

18

Mayor Durkan stated: “There’s not a specific date … because we are trying to do things

19

that are responsible.”

20

b. On June 12, 2020, in response to a direct question from CNN’s Chris

21

Cuomo about how long the City would allow CHOP participants to continue to occupy the

22

neighborhood, Mayor Durkan responded, “I don’t know. We could have the Summer of

23

Love.”

24

25
4 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

c. On June 16, 2020, the City announced through an official statement from

2

Mayor Durkan that it had negotiated with CHOP participants to adjust some but not all

3

their barriers to allow one-way traffic on Twelfth Avenue.5 This agreement was an

4

endorsement of CHOP participants’ other barriers and its overall occupation of the

5

neighborhood.

6

d. In announcing the supposed opening of a one-way corridor, the City made

7

clear in a statement from the Mayor that it was an active participant in maintaining and

8

solidifying CHOP barriers and boundaries:

9

The City is committed to maintaining space for community to come

10

together, protest and exercise their first amendment rights. Minor changes to the protest zone will implement safer and sturdier

11

barriers to protect individuals in this area, allow traffic to move

throughout the Capitol Hill neighborhood, ease access for residents

12

of apartment building in the surrounding areas, and help local

businesses manage deliveries and logistics. [emphasis added]6

13

14

e. Also on June 16, 2020, Mayor Durkan suggested that the City agreed that

15

police officers will only enter the occupied area for “significant life-safety issues.”7

16

f. On June 22, 2020, Mayor Durkan and Chief Best held a joint press

17

conference in which they expressed concern about the impacts of CHOP but also suggested

18

that there was no specific timeline or plan for lessening those impacts or removing the

19

blockades, barriers, and tents from CHOP.

20

149. The City has also made numerous statements indicating that it endorses and will

21 continue to support what CHOP participants are doing in the area, thereby ensuring the continued

22 and indefinite occupation and blockading of the neighborhood, and all the damage it has caused

23 and will cause. The City’s statements include at least the following:

24
25 5 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/
6 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/ 7 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

a. On June 11, 2020, Mayor Durkan posted following on her Twitter page:

2

“The Capitol Hill Autonomous Zone #CHAZ is not a lawless wasteland of anarchist

3

insurrection – it is a peaceful expression of our community’s collective grief and their

4

desire to build a better world.”

5

b. On June 11, 2020, Mayor Durkan also posted on her Twitter page: “For the

6

thousands of individuals who have been on Capitol Hill, I think you’ve seen what I’ve

7

seen: the painting of Black Lives Matter along Pine Street, food trucks, spaghetti potlucks,

8

teach-ins, and movies.”

9

c. On June 11, 2020, Mayor Durkan stated during a joint press conference with

10

the Chief of Police:

11

Lawfully gathering and expressing first Amendment rights, and

demanding we do better as a society, and providing true equity for

12

communities of color, is not terrorism. It is patriotism. The right to

13

challenge government and authority is fundamental to who we are

as Americans. … And for the thousands of individuals who’ve been

14

on Capitol Hill, many of them, what you’ll see is a painting of

Black Lives Matter along Pine Street. Food trucks, spaghetti

15

potlucks, teach-ins, movies, free granola bars . . . .

16

d. During the same press conference on June 11, 2020, Mayor Durkan also

17

stated:

The Capitol Hill area—in fact, some of my family is up there right

18

now—… it is not an armed ANTIFA militia no-go zone. It is, a

number of people are there, we’ve had ongoing communications

19

with them, with the businesses, with the residents, and we will

20

make sure that we find some way for people to continue to protest peacefully while also getting ingress and egress. We’ve had blocks

21

of Seattle in Capitol Hill shut down every summer for everything

from Block Party to Pride. This is not really that much of an

22

operational challenge. But we want to make sure that the businesses

and residents feel safe and we’ll continue to move that forward.

23 e. During her Facebook Live interview, Mayor Durkan also stated “I was up

24 there today, walking around, talking to people, and I think we just have to continue to

25 listen to people and figure out a way that there’s still a way for people to have that kind

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1

of free expression, but we need to open up the streets, too, at least 12th so we can get

2

fire through, and like that, so we’re going to keep talking to people and listening to

3

them. But I heard a lot of great ideas and I heard a lot of community strength there.

4

That was cool.”

5

f. Also on June 12, 2020, during her interview with CNN’s Chris Cuomo,

6

Mayor Durkan said, “We’ve got four blocks in Seattle that just saw pictures of that is

7

more like a block party atmosphere. It’s not an armed takeover. It’s not a military junta.

8

We will – we will make sure that we can restore this. But we have block parties and

9

the like in this part of Seattle all the time. It’s known for that.”

10

g. On June 12, 2020, Mayor Durkan endorsed the gardens being planted in Cal

11

Anderson Park on Twitter: “Earlier today I visited the #CHAZ and met Marcus

12

Henderson, the person behind the new community garden popping up in Cal Anderson

13

Park. Read more about Marcus and the work that’s gone into creating the gardens:

14

thestanger.com/slog/2020/06/1.”

15

h. Mayor Durkan also tweeted on June 12, 2020: “For as long as I can

16

remember, Capitol Hill has been autonomous – it’s been a place where people go to

17

express themselves freely. Today at the #CHAZ, I spoke with organizers and

18

community about how we can move forward and keep our communities safe, together.”

19

i. Mayor Durkan tweeted on June 16, 2020: “The #CHOP has emerged as a

20

gathering place for community to demand change of their local, state, and federal

21

government.”

22

j. On June 19, 2020, Mayor Durkan officially declared that there was no

23

longer a state of emergency in the City because “demonstrations since that day have

24

been and continue be largely peaceful.”

25

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1

k. On June 21, 2020, after two people were shot in CHOP and one of theme

2

died, Mayor Durkan issued a statement indicating that the City still had no plans to

3

cease supporting CHOP and that the City was instead acting to work with and preserve

4

CHOP.

5

V. CLASS ALLEGATIONS

6

150. Plaintiffs seek to certify a class of similarly situated persons pursuant to Fed. R.

7 Civ. Proc. 23(b)(2) and/or 23(b)(3).

8

151. The Class is hereby defined as follows: All persons or entities who own property

9 in, have a business in, or reside in the area in the City of Seattle bounded by the following streets:

10 Denny Way, Union Street, Thirteenth Avenue, and East Broadway. This definition excludes the

11 City of Seattle and any departments or agencies of the City of Seattle, including the Seattle Police

12 Department.

13

152. The definition of the Class is unambiguous. Plaintiffs are members of the Class,

14 and all members of the Class can be identified through public records and notified by mail or other

15 means of notification.

16

153. The number of Class members makes joinder impractical. Plaintiffs do not know

17 the exact number of members in the Class, but believe the total number of businesses, residents,

18 and property owners in the Class to be in the thousands.

19

154. There are numerous questions of law and fact common to the Class that

20 predominate over any individual issues. These issues include the following:

21

a. Whether the City has participated in, endorsed, or encouraged the creation,

22

maintenance, and continued existence of CHOP.

23

b. All facts regarding the existence and maintenance of CHOP including at least

24

the following:

25

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1

i. The boundaries and nature of the SPD’s “no-go” zone in and

2

around CHOP.

3

ii. All facts and circumstances surrounding the City’s

4

participation in, endorsement of, or encouragement of the

5

creation, maintenance, and continued existence of CHOP.

6

iii. The nature and scope of activities of CHOP participants.

7

c. Whether Plaintiffs and the Class have legally protected constitutional property

8

rights.

9

d. Whether the City has infringed on those property rights by its actions with

10

regard to CHOP.

11

e. Whether the City was required to provide notice and a hearing to Class

12

members before infringing on those property rights.

13

f. Whether CHOP and CHOP participants are a nuisance within the meaning of

14

RCW 7.48.010, et seq.

15

g. Whether the City has participated in the maintenance of that nuisance.

16

h. Whether the City has acted with deliberate indifference toward Plaintiffs and

17

the Class.

18

i. Whether the harm suffered by Plaintiffs and the Class was foreseeable and

19

obvious.

20

j. Whether the City’s actions constitute an unlawful gift within the meaning of

21

the Washington Constitution.

22

k. Whether Plaintiffs and the Class have suffered a taking without just

23

compensation.

24

l. Whether the City’s actions were pursuant to a City policy.

25

m. Whether the City’s actions were ratified by a City policymaker.

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1

n. Whether Plaintiffs and the Class are entitled to injunctive relief.

2

155. The claims of the Plaintiffs are typical of the members of the Class. All Plaintiffs

3 reside in the Class and have been subject to the same course of conduct by the City.

4

156. The Plaintiffs will fairly and adequately represent the Class. Plaintiffs are all

5 members of the Class and have there are no conflicts between Plaintiffs and other Class members.

6 Plaintiffs are well-informed as to the nature of this case and the claims against the City and have

7 retained competent and experienced counsel that intend to prosecute this action vigorously.

8

157. The City has acted or refused to act on grounds that apply generally to all Plaintiffs

9 and the Class such that injunctive relief is appropriate respecting the Class as a whole.

10

158. The issues that Class members have in common predominate over any individual

11 issues. The City engaged in a common course of conduct giving rise to the harms suffered by

12 Plaintiffs and the Class. A single, common policy is at issue in this case. Individual questions, if

13 any, pale by comparison to the numerous common questions that dominate. The injuries sustained

14 by the Class members flow, in each instance, from a common nucleus of operative facts.

15

159. A class action is superior to other available methods for the fair and efficient

16 adjudication of this controversy because joinder of all class members is impracticable. The

17 prosecution of separate actions by individual members of the Class would impose heavy burdens

18 upon the courts and the City and would create a risk of inconsistent or varying adjudications of the

19 questions of law and fact common to the Class. A class action would achieve substantial economies

20 of time, effort, and expense, and would assure uniformity of decision as to persons similarly

21 situated without sacrificing procedural fairness. Individual litigation of the legal and factual issues

22 raised by the conduct of the City would increase delay and expense to all parties and to the court

23 system. The class action device presents far fewer management difficulties and provides the

24 benefits of a single, uniform adjudication, economies of scale and comprehensive supervision by

25 a single court. Given the similar nature of the claims of the members of the Class and the uniform

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1 application of Washington and federal law to the claims of Plaintiffs and the members of the Class,

2 the Class’s claims can and will be most effectively managed by a class action.

3

VI. CLAIM FOR RELIEF

4

FIRST CAUSE OF ACTION – PROCEDURAL DUE PROCESS

5

42 U.S.C. § 1983

6

On behalf of Plaintiffs and the Class

7

160. Plaintiffs incorporate all other allegations in this complaint as if set forth herein.

8

161. Plaintiffs and the Class have constitutionally protected property rights, as defined

9 by Washington state law, to exclude others from their property, to the use and quiet enjoyment of

10 their property, and to access their property via public rights-of-way.

11

162. The City has infringed on those rights, including by (1) creating, assisting,

12 endorsing, and encouraging an indefinite, unpermitted occupation and blockade of the public

13 streets, sidewalks, and parks in and around CHOP, thereby denying Plaintiffs access to their

14 properties, and (2) creating, assisting, endorsing, and encouraging the pervasive vandalism and

15 trespasses against Plaintiffs’ properties, thereby denying Plaintiffs the ability to use their properties

16 and exclude others from them.

17

163. The City has infringed on Plaintiffs’ constitutionally protected rights without

18 providing Plaintiffs with any due process before depriving them of these rights, or providing any

19 recourse following the deprivation of the rights. In particular, the City provided Plaintiffs with no

20 notice or opportunity to be heard before or after denying the Plaintiffs of their rights to access their

21 properties, use their properties, and exclude others from their properties.

22

164. The City has done so pursuant to City policy as created, ratified, and authorized by

23 City policymakers, including Mayor Durkan, without any notice to Plaintiffs or opportunity for

24 them to be heard.

25

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165. As a direct result of the City’s actions, Plaintiffs and the Class have been denied

2 regular and customary use of, access to, and enjoyment of their property, including the ability to

3 drive or park in CHOP, the ability to walk to their homes or business without obstruction, the

4 ability to accept deliveries to their homes or business, the ability to prevent and remedy vandalism,

5 and the ability to prevent trespasses and theft against their properties.

6

166. Plaintiffs and the Class have been harmed by this deprivation, including through

7 loss of revenue, loss of property value, damages to property, and other damages.

8

SECOND CAUSE OF ACTION – NUISANCE

9

RCW 7.48.010 et seq.

10

For injunctive relief only

11

On behalf of Plaintiffs and the Class

12

167. Plaintiffs incorporate all other allegations in this complaint as if set forth fully

13 herein.

14

168. As a direct result of the City’s actions, foot and vehicular traffic on the public

15 streets, sidewalks, and other right of ways surrounding Plaintiffs’ businesses and residences are

16 physically blocked and/or impeded.

17

169. The blocking and impeding of foot and vehicular traffic has substantially and

18 unreasonably interfered with Plaintiffs’ use and enjoyment of their properties, including by

19 blocking access to those properties, and has caused harm to Plaintiffs, including by reducing

20 property values and resulting in lost revenues.

21

170. The City has directly participated in the creation and maintenance of this nuisance,

22 including by providing concrete barriers to be used for this specific purpose to the CHOP

23 participants.

24

171. In addition to blocking public rights-of-way, the City’s actions have created and

25 maintained a series of unlawful and/or unreasonable conditions throughout the CHOP area,

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1 including excessive noise, public safety hazards, vandalism, and poor health and sanitation

2 conditions.

3

172. These conditions have annoyed, injured, and endangered the comfort, repose,

4 health, and safety of Plaintiffs, and rendered Plaintiffs insecure in the use of their properties.

5

173. These conditions have substantially and unreasonably interfered with Plaintiffs’ use

6 and enjoyment of their properties, including by creating a reasonable fear among Plaintiffs of using

7 their properties, and have caused harm to Plaintiffs, including by reducing property values,

8 inflicting property damage, and resulting in lost revenues.

9

174. Plaintiffs seek to enjoin the City to remove these nuisances on behalf of themselves

10 and the Class.

11

THIRD CAUSE OF ACTION – SUBSTANTIVE DUE PROCESS

12

42 U.S.C. § 1983

13

On behalf of Plaintiffs and the Class

14

175. Plaintiffs incorporate all other allegations in this complaint as if set forth fully

15 herein.

16

176. Plaintiffs have a right pursuant to substantive due process to be protected from

17 state-created dangers.

18

177. The City ‘s actions, assistance, endorsements, and encouragements of CHOP and

19 CHOP participants have greatly increased the likelihood of property damage, loss of business

20 revenue and rental income, personal injury, loss of use of property, and other damages to Plaintiffs.

21

178. All damages suffered, and still to be suffered, by Plaintiffs were and are

22 foreseeable.

23

179. The City has acted with deliberate indifference to the known and obvious harm that

24 would be suffered by Plaintiffs.

25

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1

180. The City has done so pursuant to City policy as created and ratified by City

2 policymakers, including Mayor Durkan.

3

FOURTH CAUSE OF ACTION – UNLAWFUL GIFT

4

Article VIII, Section 7 of Washington State Constitution

5

On behalf of Plaintiffs and the Class

6

181. Article VIII, Section 7 of the Washington State Constitution provides: “No county,

7 city, town or other municipal corporation shall hereafter give any money, or property, or loan its

8 money, or credit to or in aid of any individual, association, company or corporation, except for the

9 necessary support of the poor and infirm, or become directly or indirectly the owner of any stock

10 in or bonds of any association, company or corporation.”

11

182. In direct violation of Article VIII, Section 7, the City has given away an interest in

12 public property without consideration and with donative intent to CHOP participants.

13

183. In particular, the City has ceded to CHOP the public’s property interests in Cal

14 Anderson Park, the Seattle Police Department East Precinct building, multiple concrete barriers,

15 and the public streets and thoroughfares of the area occupied by CHOP participants.

16

184. The City has granted CHOP participants the right to occupy and use these public

17 properties without interference and to the exclusion of others, in direct contradiction to local law

18 and ordinances. For example, CHOP participants have established themselves in tent encampments

19 and have set up permanent occupation on public premises, including Cal Anderson Park. The City

20 has also given control of the former Seattle Police Department East Precinct, which CHOP

21 participants have renamed. Further CHOP participants have excluded members of the public from

22 public use of Cal Anderson Park and has excluded, even under the threat of violence, SPD from

23 making use of the East Precinct to provide police services in the area.

24

185. They City and the Mayor have actively supported and abetted the takeover of public

25 property by CHOP, through active encouragement, endorsement, and material support to CHOP

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1 participants. The City’s actions have resulted in the effective transfer of the public’s property right

2 to CHOP, through granting CHOP exclusive use of this property. Further, the City and Mayor’s

3 active encouragement indicates the intent of gifting this public property indefinitely for CHOP’s

4 solely private use, without any rent or benefit to the City or public.

5

186. The purpose of Article VIII, Section 7 is to prevent public property from being used

6 to benefit private interests where the public interest is not primarily served. The CHOP movement

7 is a private movement with private ideological motives, distinct from the public at large. Indeed,

8 CHOP participants stationed at the boundaries of the CHOP zone have actively prevented some

9 members of the public from entering.

10

187. On information and belief, the City has received no remuneration or other benefit

11 in exchange for ceding the right to exclusively occupy public property to CHOP. The City has

12 therefore ceded interest in public property to private individuals without any consideration.

13

188. Because the City has received no consideration or remuneration from CHOP

14 participants for the rights to use public property, the intent of the City has been to donate to CHOP

15 participants a private benefit, not conferred on other members of the public more broadly.

16

189. Not only is the public interest not served, the City’s gift of public property has

17 actively harmed the public, especially the residents of Capitol Hill. CHOP participants have used

18 their newly gifted rights in public property ceded to them by the City as a staging ground for acts

19 of vandalism and trespass against adjacent private property, including the properties of the

20 Plaintiffs. The CHOP encampments in Cal Anderson Park have also facilitated acts of assault,

21 violence, and harassment against private residents and business employees in the surrounding area.

22 The presence of CHOP on public property ceded by the City has also had a negative economic

23 impact, in the form of reduced property values and lost business revenues, in the Capital Hill

24 neighborhood.

25

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1

190. As a direct and foreseeable result of the City gifting an interest in public property

2 to CHOP, Plaintiffs’ injuries include but are not limited to: (i) deprivation of their use of that public

3 property in Capitol Hill; (ii) the loss of police protection previously provided through the East

4 Precinct; (iii) limitation on access to their private property; (iv) vandalism and trespass to their

5 private property by CHOP participants; (v) damage to property; (vi) a loss in property value; (vii)

6 a loss of business revenue; (viii) and/or other economic loss. These harms have been caused by

7 CHOP participants residing in Cal Anderson Park and other public property ceded to them by the

8 City.

9

191. Plaintiffs have standing to assert a violation of Article VIII, Section 7 because

10 Plaintiffs are property owners, residents, and/or business owners in the areas near Cal Anderson

11 Park and the East Precinct. The City’s gift of public property has adversely affected their interest

12 in their adjacent private property, businesses, and/or residences, as described above. Alternatively,

13 Plaintiffs have standing to assert a violation of Article VIII, Section 7 because Plaintiffs are all

14 taxpayers of the City of Seattle.

15

192. Plaintiffs are currently being adversely affected, and will continue to be adversely

16 affected, by the City’s gift of public property to CHOP in violation of Article VIII, Section 7 of

17 the Washington State Constitution, unless that unlawful gifting is restrained by this Court.

18

FIFTH OF ACTION – TAKING

19

42 U.S.C. § 1983

20

On behalf of Plaintiffs and the Class

21

193. Plaintiffs incorporate all other allegations in this complaint.

22

194. Plaintiffs and the Class have constitutionally protected property rights to use and

23 enjoy their properties, to exclude others from their properties, and to access their properties via

24 public rights-of-way.

25

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1

195. The City has deprived Plaintiffs of those rights by affirmatively creating, assisting,

2 endorsing, and encouraging an indefinite, unpermitted invasion, occupation, and blockade of the

3 public rights-of-way that provide access to Plaintiffs’ private properties, as well as by affirmatively

4 creating, assisting, endorsing, and encouraging the physical invasion of Plaintiffs’ private

5 properties by CHOP participants.

6

196. The City has done so pursuant to City policy as created and ratified by City

7 policymakers, including Mayor Durkan.

8

197. Plaintiffs have not received compensation for the deprivation of their property

9 rights.

10

198. The City’s actions constitute an unlawful taking for private use and/or an unlawful

11 taking for public use without just compensation, which has caused Plaintiffs economic harm,

12 including through a loss of property value, loss of business revenue, and a loss of investment-

13 backed expectations.

14

VII. JURY DEMAND

15

Plaintiffs demand a trial by jury.

16

VIII. PRAYER FOR RELIEF

17

WHEREFORE, Plaintiffs request the following relief:

18

A. Judgment in favor of Plaintiffs and against Defendant for actual damages in an

19 amount to be proven at trial;

20

B. Prejudgment interest at the maximum rate allowed by law;

21

C. Plaintiffs’ costs of investigation, costs of suit, and reasonable attorneys’ fees; and

22

23

24

25

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1

D. All such other and further monetary, injunctive, and declaratory relief as the Court

2 may deem just and proper.

3

DATED this 24th day of June, 2020.

4

CALFO EAKES LLP

5

6 By_/s Patty A. Eakes_________________

7

Patty A. Eakes, WSBA #18888

Angelo J. Calfo, WSBA #27079

8

1301 Second Avenue, Suite 2800

Seattle, WA 98101

9

Phone: (206) 407-2200

Fax: (206) 407-2224

10

Email: pattye@calfoeakes.com

11

angeloc@calfoeakes.com

12

Attorneys for Plaintiffs

13

14

15

16

17

18

19

20

21

22

23

24

25

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 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 1 of 21

1 Hon. Thomas S. Zilly

2

Note on Motion Calendar: August 21, 2020

(Oral Argument Requested)

3

4

5

6

7

UNITED STATES DISTRICT COURT

8

WESTERN DISTRICT OF WASHINGTON

9 HUNTERS CAPITAL, LLC, a Washington
10 limited liability company, NORTHWEST LIQUOR AND WINE LLC, a Washington
11 limited liability company, SRJ ENTERPRISES, d/b/a CAR TENDER, a
12 Washington corporation, THE RICHMARK COMPANY d/b/a RICHMARK LABEL, a
13 Washington company, SAGE PHYSICAL THERAPY PLLC, a Washington professional
14 limited liability company, KATHLEEN CAPLES, an individual, ONYX
15 HOMEOWNERS ASSOCIATION, a Washington registered homeowners
16 association, WADE BILLER, an individual, MADRONA REAL ESTATE SERVICES
17 LLC, a Washington limited liability company, MADRONA REAL ESTATE INVESTORS
18 IV LLC, a Washington limited liability company, MADRONA REAL ESTATE
19 INVESTORS VI LLC, a Washington limited liability company, 12TH AND PIKE
20 ASSOCIATES LLC, a Washington limited liability company, REDSIDE PARTNERS
21 LLC, a Washington limited liability company, MAGDALENA SKY, an individual, OLIVE
22 ST APARTMENTS LLC, a Washington limited liability corporation, and
23 BERGMAN’S LOCK AND KEY SERVICES

No. 2:20-CV-00983
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 1 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 2 of 21

1 LLC, a Washington limited liability company, on behalf of themselves and others similarly
2 situated,

3

Plaintiffs,

4

vs.

5 CITY OF SEATTLE,

6

Defendant.

7

8

Under Federal Rules of Civil Procedure 12(b)(6) and 23, the City moves to dismiss plaintiffs’

9 Complaint for failure to state a claim upon which relief can be granted and to deny class certification.

10

I. INTRODUCTION

11

Plaintiffs seek to hold the City responsible for the acts of private parties in and around the

12 Capitol Hill Organized Protest (“CHOP”).1 However, the City is not liable for those private acts and

13 the complaint fails to state a claim as a matter of law. The City took measured, appropriate steps to

14 rapidly unfolding events in responding to the CHOP. As has been widely reported, the City supported

15 the exercise of First Amendment rights by peaceful protesters in public streets and a park in the 16 Capitol Hill neighborhood of Seattle following the killing of George Floyd in Minneapolis.2 Plaintiffs

17 expressly “support the free-speech rights of many of those who gathered on Capitol Hill” but are

18 unclear about whose free-speech rights they do not support. Complaint at ¶1. As the amended

19

1 The CHOP has also been referred to as the Capitol Hill Occupied Protest and the Capitol Hill Autonomous Zone
20 (“CHAZ”).

2 “The protections afforded by the First Amendment are nowhere stronger than in streets and parks, both categorized for

21 First Amendment purposes as traditional public fora. In such fora, the government's right ‘to limit expressive activity [is]
sharply circumscribed.’ Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. Among traditional public fora, public parks …

22

are especially important locales for communication among the citizenry, as they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between

citizens, and discussing public questions.” Berger v. City of Seattle, 569 F.3d 1029, 1035–36 (9th Cir. 2009) (some

23 citations, quotations, and footnotes omitted).

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 2 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 3 of 21

1 complaint acknowledges, when opportunistic criminal and other activity in and around the CHOP

2 overshadowed important free speech activity, the City cleared the CHOP.

3

Plaintiffs allege they were deprived of their rights to due process and equal protection and that

4 they suffered takings of their property because the City did not act sooner to clear the CHOP. They

5 bring federal claims under 42 USC §1983. However, plaintiffs fail to state any claims upon which

6 relief may be granted.

7

Governments are not required to prevent third-party conduct, including criminal conduct,

8 absent rare exceptions to the rule not presented here. Although they attempt to blame the City for

9 private acts, the conduct that the plaintiffs complain of is that of private parties who plaintiffs have

10 not named in this suit. Their complaint also fails to comply with requirements for a damages class

11 under FRCP 23. This Court should dismiss plaintiffs’ complaint with prejudice. If the Court does not

12 dismiss the Complaint outright, it should deny class certification.

13

II. FACTS

14

As a purported class, plaintiffs allege that the City violated their civil rights by leaving the

15 East Precinct building and not clearing the CHOP sooner. Complaint at ¶¶3, 35-38.3 As required in a

16 Rule 12(b)(6) motion, all well-pled factual allegations in the Complaint are treated as true for

17 purposes of this motion. They note that City barriers were used by protesters to block City streets

18 and vehicular access to residences and buildings. Id. at ¶¶4, 7. They allege that the City is responsible

19 for the acts of those they allege are “CHOP participants” because the City “endorse[d], enable[d], and

20

21

22

3 Plaintiffs suggest that the City cleared the CHOP in response to a threatened TRO motion from Plaintiffs. Although it has no bearing on the motion before the Court, the City feels compelled to note that plaintiffs are mistaken. The City made

its decision to clear the CHOP based on events in the CHOP, not this lawsuit. That the clearing of the CHOP was a success

23 speaks to the City’s careful approach and operational planning and provides no support for the contention that there was

undue delay on the City’s part.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 3 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 4 of 21

1 participate[d] in the occupation of CHOP.” E.g., id. at ¶5.4 Generally, plaintiffs complain that they

2 were harmed by the criminal and other acts of CHOP participants, not City actors. Id. ¶¶8-9, 40-48,

3 51-53.

4

Plaintiffs complain that the City’s non-enforcement of laws led to pervasive crimes of

5 vandalism by non-City actors. Id. at ¶9. They allege that the City’s support for the Black Lives Matter

6 movement and attempts to find a peaceful resolution to the CHOP amounts to an endorsement of

7 criminal and other activity. Id. at ¶10.

8

As a group, plaintiffs complain of a variety of harm, including graffiti, different provision of

9 emergency services inside the CHOP than outside it, and loss of vehicular access to their property

10 stemming from CHOP participants’ use of barriers. They complain that the City did not engage in

11 regular policing within CHOP and declined to enforce criminal laws. Id. at ¶174, 219. They allege

12 the City “enabled” CHOP participants to block vehicular access and physically aided CHOP

13 participants by leaving barriers in the area, providing more barriers, and providing portable toilets

14 and other equipment. ¶¶177, 179. They further contend that the City “effectively authorized” the

15 actions of CHOP participants by allowing CHOP to exist for weeks. Id. at ¶181.

16

Individual members of the purported class make other complaints, including that the “police

17 refused to protect… property.” Id. at ¶91. They also allege lost revenue, lost access, feeling unsafe,

18 decreased property values, physical property damage, reduced rents, criminal activity of CHOP

19 participants, non-response to 911 calls, inability to receive deliveries, and harassment by CHOP

20 participants. Id. at ¶¶85, 91, 99, 104-106, 135, 143, 149.

21

22
4 Although the City uses the term “CHOP participants” to match up with the amended complaint here and elsewhere, it
23 does not agree that it is appropriate to lump the many peaceful protesters who participated or visited the CHOP into a
group with those committing crimes and the other acts identified in the amended complaint.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 4 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 5 of 21

1

III. ARGUMENT AND AUTHORITIES

2 A. Motion to Dismiss Standard

3

Dismissal under Rule 12(b)(6) requires a court to determine “whether the complaint's factual

4 allegations, together with all reasonable inferences, state a plausible claim for relief.” Cafasso, U.S.

5 ex rel. v. Gen. Dynamics C4 Sys. Inc., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v.

6 Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 1949–50 (2009)). “A claim has facial plausibility when

7 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

8 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citation

9 omitted). When determining the sufficiency of a claim, a court must “accept factual allegations in the

10 complaint as true and construe the pleadings in the light most favorable to the non-moving

11 party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks

12 omitted). The court, however, need “not assume the truth of legal conclusions merely because they

13 are cast in the form of factual allegations.” Id. “[C]onclusory allegations of law and unwarranted

14 inferences are insufficient to defeat a motion to dismiss.” Id.; see also Iqbal, 556 U.S. at 678, 129

15 S.Ct. at 1949 (“A pleading that offers labels and conclusions or a formulaic recitation of the elements

16 of a cause of action will not do.”) (Citations and internal quotation marks omitted).

17 B.

§1983 claims require allegations that the government directly caused harm: plaintiffs’ complaint does not allege such harm

18 A municipality cannot be liable under §1983 on a respondeat superior theory. Rather, liability

19 only attaches where the municipality itself causes the constitutional violation through a “policy or

20 custom, whether made by its lawmakers or those whose edicts or acts may be fairly said to represent

21 official policy.” Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56

22 L.Ed.2d 611 (1978). Thus, municipal liability in a section 1983 case may be premised upon (1) an

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 5 2:20-CV-00983

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

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1 official policy; (2) a “longstanding practice or custom which constitutes the standard operating

2 procedure of the local government entity; (3) the act of an “official whose acts fairly represent official

3 policy such that the challenged actions constituted official policy; or (4) where “an official with final

4 policy making authority delegated that authority to, or ratified the decision of, a subordinate.” Price

5 v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).

6

To maintain a claim under §1983, a Plaintiff must show that (1) the conduct complained of

7 was committed by a person acting under color of state law, and that (2) the conduct deprived a person

8 of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v.

9 Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other

10 grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “The state-

11 action element in § 1983 excludes from its reach merely private conduct, no matter how

12 discriminatory or wrongful.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th

13 Cir. 2010)(internal quotation marks and citations omitted ). It exists to “avoid[ ] imposing on the

14 State, its agencies or officials, responsibility for conduct for which they cannot fairly be

15 blamed.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

16 Here, while City officials were unmistakably supportive of peaceful protected speech and seriously

17 concerned about accompanying criminal activity, even had they exhibited the total nonchalance about

18 CHOP activities which Plaintiffs’ claim, “[a]ction taken by private entities with the mere approval or

19 acquiescence of the State is not state action.” Caviness, 590 F.3d at 817. Regarding alleged failures

20 to act, such omissions are not actionable under section 1983 unless they involve a failure to perform

21 a legally required act. Lacey v. Maricopa County, 693 F.3d 896, 917 (9th Cir. 2012).

22

Generally, a municipality is liable under Monell only if a municipal policy or custom was the

23 “moving force” behind the constitutional violation. See Galen v. County of Los Angeles, 477 F.3d

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 7 of 21

1 652, 667 (9th Cir. 2007). There must be “a direct causal link between a municipal policy or custom

2 and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct.

3 1197, 103 L.Ed.2d 412 (1989). In other words, there must be proximate cause. The Supreme Court

4 has noted that “[p]roximate cause is often explicated in terms of foreseeability or the scope of the risk

5 created by the predicate conduct.” Paroline v. United States, 572 U.S. 464, 134 S.Ct. 1710, 1719, 188

6 L.Ed.2d 714 (2014). “A requirement of proximate cause thus serves, inter alia, to preclude liability

7 in situations where the causal link between conduct and result is so attenuated that the consequence

8 is more aptly described as mere fortuity.” Id.

9

Plaintiffs’ attempt to draw connections between City acts and CHOP participant activity is

10 not supported by the facts or the law. The City did nothing that directly exposed plaintiffs to harms.

11 The harms that the plaintiffs allege occurred over a period of weeks, and plaintiffs have alleged “mere

12 acquiescence” inadequate to support their claim. See, e.g. Caviness, 590 F.3d at 812. There are no

13 allegations that the City directly interacted with plaintiffs and left them in a worse position than the

14 one they were in before the City interacted with them.

15

The plaintiffs simply do not, and cannot, allege that any City action directly injured them.

16 Rather, they complain of City inaction. Under well-established case law, their Complaint falls short

17 of raising any legally viable claim. Plaintiffs were not directly harmed by the City’s allowance of

18 first-amendment activity, provision of sanitation services to protesters, attempts to improve safety in

19 the area with barriers, and temporary departure from the East Precinct building. Rather, the harm they

20 identify was caused by private actors, and Plaintiffs allege the City violated their rights by (1) not

21 preventing such harm from occurring in the first place and (2) not preventing additional harm once

22 the City was on notice such harm was occurring. As explained below, the City is not liable where it

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 7 2:20-CV-00983

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

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1 does not act to prevent private conduct. Were it otherwise, the City would face liability for all crime

2 that occurred within the City.

3 C. 4 5 6 7

The Due Process Clause does not require governments to exercise discretion to prevent private actors from harming others
“[N]othing in the language of the Due Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors. The Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security. It forbids the State itself to deprive individuals of life, liberty, or property without “due process of law,” but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means.”

8 DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S. Ct. 998, 1003, 103 L.

9 Ed. 2d 249 (1989)(emphasis added). “As a general rule, members of the public have no constitutional

10 right to sue [public] employees who fail to protect them against harm inflicted by third parties.” L.W.

11 v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (citing DeShaney 489 U.S. at 197). This rule is rooted

12 in the discretionary nature of law enforcement activity:

13 The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly

14

mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U.S. 41, 119 S.Ct.

1849, 144 L.Ed.2d 67 (1999), which involved an ordinance that said a police officer “ ‘shall

15

order’ ” persons to disperse in certain circumstances, id., at 47, n. 2, 119 S.Ct. 1849. This

Court rejected out of hand the possibility that “the mandatory language of the ordinance ...

16

afford[ed] the police no discretion.” Id., at 62, n. 32, 119 S.Ct. 1849. It is, the Court

proclaimed, simply “common sense that all police officers must use some discretion in

17

deciding when and where to enforce city ordinances.” Ibid. (emphasis added).

18 Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 761, 125 S. Ct. 2796, 2806, 162 L. Ed. 2d 658

19 (2005). The “benefit that a third party may receive from having someone else arrested for a crime

20 generally does not trigger protections under the Due Process Clause, neither in its procedural nor in

21 its ‘substantive’ manifestations.” Id. at 768; 125 S.Ct. at 2810. The Fourteenth Amendment and Civil

22 Rights Act of 1871 “did not create a system by which police departments are generally held

23 financially accountable for crimes that better policing might have prevented.” Id. Again, plaintiffs

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 8 2:20-CV-00983

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

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1 complain not of direct harm from City action, but that the City failed to stop private actors from

2 causing harm. Absent an exception to the general rule that no claim arises from an alleged failure to

3 exercise discretion to enforce laws—none applies here—the claim fails as a matter of law.

4

Perhaps in an effort to avoid the rule that failing to take discretionary acts cannot support

5 liability, plaintiffs identify a municipal code provision, claim with no factual support that it applies

6 here, and then allege that the statute required a single mandatory action that the City failed to take.

7 This allegation is defeated on the face of the pleadings because Plaintiffs admit the protesters “lacked

8 a permit”, Complaint at ¶218. They attempt to argue that the City was required to “designate an

9 alternative proposal” i.e. impose conditions on the CHOP by permit to reduce its impacts on the

10 neighborhood. However, by the plain terms of SMC 15.52.060, the City is only required to take the

11 action plaintiffs suggest when it denies a permit application that meets certain statutory criteria. See

12 SMC 15.52.060(B) (If the Special Events Committee denies an application for a special event permit

13 for a “free speech” event, “the City shall designate an alternative proposal and may impose

14 conditions….”). The City did not fail to take any mandatory action.

15 D.

The “state-created danger” exception does not apply here: the City did not directly place plaintiffs in danger

16 Again, “[t]he general rule is that a state is not liable for its omissions and the Due Process

17 Clause does not impose a duty on the state to protect individuals from third parties.” Martinez v. City

18 of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (citations and quotations omitted). The Due Process

19 Clause does not provide a baseline level of protection against the acts of private parties that the City

20 must provide to persons or property. The City anticipates that plaintiffs will argue the “state-created

21 danger” exception applies here. This exception only applies, however, when government employees

22 affirmatively place a plaintiff in a position of danger which the plaintiff would not have otherwise

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 9 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 10 of 21

1 faced. DeShaney, 489 U.S. at 197, 109 S.Ct. 998. A plaintiff must prove three elements to prevail on

2 a “state-created danger” argument. “First, she must show that the officers’ affirmative actions created

3 or exposed her to an actual, particularized danger that she would not otherwise have faced. Second,

4 she must show that the injury she suffered was foreseeable. Third, she must show that the officers

5 were deliberately indifferent to the known danger.” Martinez, 943 F.3d at 1271. The City discusses 6 how the complaint fails to allege facts supporting the first and third elements of this test below.5

7

1. The City did not expose plaintiffs to actual or particularized danger that plaintiffs

would not have faced but for City action.

8 Plaintiffs simply do not plead a single circumstance where City action exposed them to an

9 actual, particularized danger. In Johnson v. City of Seattle, 474 F.3d 634, 635 (9th Cir. 2007) the

10 Ninth Circuit rejected the argument that by failing to engage in more aggressive policing in response

11 to civil unrest, the City placed Johnson and others in “a position of enhanced danger.” The court

12 rejected that argument because: “the more passive operational plan that the police ultimately

13 implemented did not violate substantive due process because it ‘placed [the Pioneer Square Plaintiffs]

14 in no worse position than that in which [they] would have been had [the Defendants] not acted at

15 all.’ DeShaney, 489 U.S. at 201, 109 S.Ct. 998.).” See also Munger v. City of Glasgow Police Dep't,

16 227 F.3d 1082, 1086 (9th Cir. 2000) (relevant inquiry is “whether the officers left the person in a

17 situation that was more dangerous than the one in which they found him.”).

18 In Hernandez v. City of San Jose, 897 F.3d 1125, 1129, 1133-35 (9th Cir. 2018) the Ninth

19 Circuit considered whether the created-danger exception applied to police officers who affirmatively

20 directed political rally attendees into a “crowd of violent anti-Trump protesters” and the attendees

21 were beaten, robbed and/or targeted by protesters throwing objects like eggs and bottles. Because the

22

23 5 While the City’s position is that Plaintiff cannot establish any of the three elements of the test, for the purposes of the
Rule 12 motion, the City will limit its discussion to two of the three.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 10 2:20-CV-00983

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

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1 rally attendees alleged that they would have made it to safety but for being affirmatively directed into

2 the crowd of protesters, they satisfied this element of the state-created danger test. Id.

3

Plaintiffs do not allege a particularized danger. Rather, they generally complain about private

4 criminal conduct, and the City’s knowledge of such crime. It is well-established, however, that these

5 types of complaints are not enough to state a viable cause of action. This matter is controlled by

6 Johnson v. City of Seattle and Munger.

7

2. Plaintiffs complaint fails to allege facts sufficient to show deliberate indifference.

8

Plaintiffs similarly cannot establish the third required element of a “state created danger”

9 exception. “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal

10 actor disregarded a known or obvious consequence of his action. It requires a culpable mental state,

11 and the standard [the Court] appl[ies] is even higher than gross negligence.” Hernandez 897 at 1135.

12 To meet the culpable mental state requirement, a plaintiff must demonstrate that governmental actors

13 both recognized and intended to expose plaintiff to an unreasonable risk, and that the exposure was

14 likely to lead to injury. Id.

15

For reasons discussed above, plaintiffs do not come close to alleging facts needed to support

16 an argument the City intended to expose plaintiffs to an unreasonable risk. They argue that the City

17 should have known generalized increased criminal activity would result from City acts. That is not

18 enough, even if it were true that City acts were the causal factor in any complained-of criminal

19 activity, which it is not. Plaintiffs have simply not pled any facts that support an inference that the

20 City took action for the purpose of exposing the plaintiffs to a particularized unreasonable risk of

21 harm.

22

23

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

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1 E.

A partial and temporary loss of access to property is not, as a matter of law, a governmental taking

2 The federal and state constitutions require compensation when public use results in private

3 property being taken or damaged. U.S. Const., Fifth Amendment, WA Const. Art. I Section 16.

4 Washington law controls whether a property interest exists on a Fifth Amendment takings claim. See,

5 e.g. Pande Cameron & Co. of Seattle, Inc. v. Cent. Puget Sound Reg’l Transit Auth., 610 F. Supp. 2d

6 1288, 1303–06 (W.D. Wash. 2009), aff’d, 376 F. App’x 672 (9th Cir. 2010) (considering and rejecting

7 a temporary loss of access claim). “The term inverse condemnation is used to describe an action

8 alleging a governmental taking brought to recover the value of property which has been appropriated

9 in fact, but with no formal exercise of the power.” Bodin v. City of Stanwood, 79 Wash.App. 313,

10 320, 901 P.2d 1065 (1995), aff'd, 130 Wash.2d 726, 927 P.2d 240 (1996) (quotation and citation

11 omitted). “An inverse condemnation plaintiff must prove a ‘taking’ greater than mere tortious

12 interference.” Id. (quotation and citation omitted). Plaintiffs allege their property access was

13 impaired, but not eliminated, for three weeks.

14 Under Washington law, “temporary interferences with a property right are not constitutional

15 takings of property.” Id. at 1301-02 (citing Northern Pacific Railway Co. v. Sunnyside Valley

16 Irrigation Dist., 85 Wash.2d 920, 924, 540 P.2d 1387 (Wash.1975)). “[T]here is no authority under

17 Washington law for a temporary ‘right of access’ takings claim. While there is authority for a

18 ‘temporary taking’ claim in Washington, that is only in the context of governmental regulation of

19 property that has deprived the owner of all economical use of his or her property.” Pande Cameron

20 & Co. of Seattle, Inc., 610 F. Supp 2d at 1305 (citing Guimont v. Clarke, 121 Wash.2d 586, 598, n.

21 3, 854 P.2d 1 (1993) and City of Seattle v. McCoy, 101 Wash.App. 815, 829, 4 P.3d 159 (2000)).

22 Here, none of the plaintiffs even allege they lost the entire economical use of property, and certainly

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 12 2:20-CV-00983

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

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1 not because of governmental action or regulation. Such government action is clearly distinguishable

2 from the actions of CHOP participants.

3

Analogous takings claims made during periods of civil unrest have been rejected. For

4 example, in Citoli v. City of Seattle, 115 Wn. App. 459, 465–66, 61 P.3d 1165, 1169 (2002), the court

5 rejected the claim that the City and Puget Sound Energy inversely condemned property by shutting

6 off services to a building for a week in response to occupation by protesters. Claims of failure to

7 prevent damage and affirmative damage to buildings by government during civil unrest and war were

8 also rejected in National Bd. of Young Men's Christian Ass'ns v. United States, 395 U.S. 85, 89 S.Ct.

9 1511, 23 L.Ed.2d 117 (1969) and United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S.Ct.

10 200, 97 L.Ed. 157 (1952). Notably, plaintiffs do not allege that the government engaged in any

11 conduct that directly damaged their property.

12

In Citoli, the court quoted Justice Harlan’s concurrence in National Bd. of Young Men's

13 Christian Ass'ns, 395 U.S. at 95-96, 89 S. Ct. 1511 with approval:

14

“If courts were required to consider whether the military or police protection afforded a

particular property owner was ‘adequate,’ they would be required to make judgments which

15

are best left to officials directly responsible to the electorate. In the present case, for example,

petitioners could argue that it was possible for the troops to maintain their position in front of

16

the buildings if they had been willing to kill a large number of rioters. In rebuttal, the

Government could persuasively argue that the indiscriminate use of deadly force would have

17

enraged the mob still further and would have increased the likelihood of future disturbances.

Which strategy is a court to accept? Clearly, it is far sounder to defer to the other duly

18

constituted branches of government in this regard.

19 Citoli v. City of Seattle, 115 Wn. App. at 491, 61 P.3d at 1182 (2002). In another case, the District

20 Court for the District of Columbia rejected similar allegations to those made here:

21

Plaintiff's allegations that the riot control program formulated and adopted by officials of the

United States and the District of Columbia intentionally sacrificed private property in

22

disturbance zones in order to further the public purpose of disturbance control, likewise do

not establish a Fifth Amendment taking of property for public use without just compensation.

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 13 2:20-CV-00983

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

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1 Monarch Ins. Co. of Ohio v. D.C., 353 F. Supp. 1249, 1255-1256 (D.D.C. 1973), aff’d sub nom Aetna

2 Insurance Co. v. U.S. 497 F.2d 683 (1974).

3

Notwithstanding the same argument being considered and rejected by courts, as in Citoli,

4 National Bd. of Young Men's Christian Ass'ns, and Monarch Ins., the plaintiffs propose that if the

5 government had used a different strategy in response to civil unrest, plaintiffs might have suffered

6 less damage from private parties. Such proposals do not support legally viable takings or other claims.

7 F.

Plaintiffs arguments under the Equal Protection Clause also fail: the City did not discriminate against them, nor violate their free speech rights

8 Plaintiffs allege that the City violated the Equal Protection clause by expressing support for

9 the political message of some CHOP participants, providing support for CHOP participants even

10 though the participants lacked a permit, declining to enforce criminal and civil laws against CHOP

11 participants, and not providing more police services inside the CHOP. Complaint at ¶¶217-219. They

12 allege that because the City engaged in different policing, other law enforcement and provision of

13 governmental services outside the CHOP, the City violated the Plaintiffs’ civil rights by expressing a

14 preference for the CHOP participants’ speech. Id. at ¶¶220-223. They further contend that CHOP

15 participants took action against the plaintiffs based on speech, but do not allege the City did anything

16 because of the plaintiffs’ speech. Id. at ¶224. Plaintiffs appear to argue that the City violates the Equal

17 Protection clause of the Fourteenth Amendment if it does not provide the same level of policing in

18 different parts of the City, duplicating their due process arguments. Plaintiffs again fail to delineate

19 between peaceful, law-abiding protesters and others who then came to the CHOP area, and between

20 affirmative acts by the City such as provision of sanitation services (which decreased some harms

21 about which Plaintiffs’ complain, like feces in the area) and times when the City did not act as

22 Plaintiffs would have preferred.

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 14 2:20-CV-00983

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

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1

1. Plaintiffs do not allege that the City acted with an intent to discriminate against

them, and their equal protection claim therefore fails.

2 “[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every

3 person within the State's jurisdiction against intentional and arbitrary discrimination, whether

4 occasioned by express terms of a statute or by its improper execution through duly constituted

5 agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074–75, 145 L. Ed. 2d

6 1060 (2000) (citations and quotations omitted). To state an equal protection violation under the

7 Fourteenth Amendment, a plaintiff must usually allege a government acted with an intent or purpose

8 to discriminate against the plaintiff based on membership in a protected class. Lee v. City of Los

9 Angeles, 250 F.3d 668, 686 (9th Cir. 2001). “‘Discriminatory purpose’ ... implies more than intent as

10 volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or

11 reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse

12 effects upon an identifiable group.” Id. at 687 (citation and quotation omitted). An equal protection

13 claim will not lie by “conflating all persons not injured into a preferred class receiving better

14 treatment” than the plaintiff. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)

15 (citing Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir. 1986)). Similarly, “evidence of different

16 treatment of unlike groups does not support an equal protection claim.” Id. at 1168. Here, the Plaintiffs

17 complaint alleges no facts sufficient to support the notion that the City responded to the CHOP with

18 an intent to discriminate against Plaintiffs. The businesses say they supported the protesters message,

19 as the City did. Complaint at ¶1. No facts in the complaint support the notion that the City acted as it

20 did because of some animus towards plaintiffs.6

21

22 6 If Plaintiffs are intending to advance a claim based on viewpoint discrimination, they clearly cannot do so when,
according to the facts alleged in the Complaint, all of the parties involved (the city, the peaceful protesters, and the
23 plaintiffs) share a similar viewpoint about the relevant matter of public concern. Plaintiffs do not say they the City
retaliated against them because of their speech, but that “CHOP participants regularly threatened, bullied, and assaulted

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 15 2:20-CV-00983

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

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1

Although unclear from the Amended Complaint, it is possible plaintiffs make a novel “class

2 of one” argument as to each purported class member. See Engquist v. Oregon Department of

3 Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Such claims require

4 discriminatory intent and cannot be supported by an alleged failure to take a discretionary act alone.

5 See Engquist, 553 U.S. at 601-09, 128 S.Ct. at 2152-2157; Hanes v. Zurick, 578 F.3d 491, 496 (7th

6 Cir. 2009) (An “officer motivated by malice alone is not exercising discretion and is not weighing the

7 factors relevant to the officer's duties to the public.”); Le Fay v. Le Fay, 1:13-CV-1362 AWI MJS,

8 2015 WL 106262, at *7 (E.D. Cal. Jan. 7, 2015), aff'd sub nom. LeFay v. LeFay, 673 Fed. Appx. 722

9 (9th Cir. 2016) (malice required to support class of one theory in case involving class of one equal

10 protection theory based on discretionary law enforcement decision). Critically, plaintiffs do not allege

11 that the City was motived by malice and therefore took discriminatory action against them. Rather,

12 they allege that the City failed to stop private actors from conduct which the plaintiffs (often

13 understandably) disliked. Plaintiffs’ complaint fails to allege the basic factual elements required to

14 support an equal protection claim. The court’s analysis need go no further than this to determine that

15 their equal protection claim fails.

16

2. To the extent the Plaintiffs make a First Amendment claim under the Equal

Protection clause, it fails because they do not allege (1) the City took retaliatory

17

action against them because of their speech (2) that would have chilled a person of

ordinary firmness from participating in First Amendment speech or (3) that they

18

were injured by government retaliation.

19

Government action that suppresses protected speech in a discriminatory manner may violate

20 both the First Amendment and the Equal Protection Clause. R.A.V. v. City of St. Paul, 505 U.S. 377,

21 384 n. 4, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (noting that the Supreme Court “has occasionally

22

23 individuals whom they suspected might hold viewpoints contrary to their own[.]” Complaint at ¶224 (emphasis added).
This is not enough to establish governmental retaliation based on an expressed viewpoint.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 16 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 17 of 21

1 fused the First Amendment into the Equal Protection Clause in this fashion, but ... with the

2 acknowledgment ... that the First Amendment underlies its analysis.”). Where plaintiffs allege

3 violations of the Equal Protection Clause relating to expressive conduct, courts analyze those

4 arguments using the framework applicable to alleged content or viewpoint discrimination under the

5 First Amendment. Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764, 779–80 (9th Cir. 2014).

6

To demonstrate a First Amendment violation, a plaintiff must (1) provide evidence of

7 retaliatory governmental action motivated by an intention to interfere with First Amendment rights;

8 (2) that defendant’s conduct “would chill or silence a person of ordinary firmness from future First

9 Amendment activity,” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)

10 (citation omitted) and (3) that but for the government’s retaliatory acts an injury to the plaintiff would

11 not have occurred. Lacey v. Maricopa Cty., 693 F.3d 896, 917 (9th Cir. 2012). In the First Amendment

12 context, there is no right to a response or any particular action when a citizen petitions the government

13 for redress of a grievance, including filing a police report. See, e.g.. Mancini v. City of Cloverdale

14 Police Dep't, 15-CV-02804-JSC, 2015 WL 4512274, at *6 (N.D. Cal. July 24, 2015); Doe v. County

15 of San Mateo, 2009 WL 735149 at *6 (N.D. Cal. March 19, 2009).

16

Here, plaintiffs allege no facts that the City’s response to the CHOP was motivated by a desire

17 to suppress plaintiffs’ speech. They do not identify what speech plaintiffs engaged in or even desired

18 to engage in, when the City heard it, nor how the City retaliated against it. The allegedly retaliatory

19 acts they complain—threats of violence, for example—are not City actions, but that of private actors.

20 In short, plaintiffs’ complaint satisfies none of the elements of a First Amendment claim, and their

21 First Amendment claim under the Equal Protection clause is properly dismissed as a matter of law.

22

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 17 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 18 of 21

1 G. Class certification is unavailable because plaintiffs complain of distinct harms occurring at different times and differing damages
2 FRCP 23(c)(1)(A) addresses the timing of a district court's class certification determination,
3 and states: “Time to Issue: At an early practicable time after a person sues or is sued as a class
4 representative, the court must determine by order whether to certify the action as a class action.”
5 FRCP 23(c)(1)(A). Preemptive motions by the defense to deny class certification are properly
6 considered by the trial court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 940 (9th Cir.
7 2009). Whether to permit discovery prior to considering a motion to deny certification is within the
8 discretion of the trial court, and discovery is properly denied where plaintiffs do not make a prima
9 facie showing of Rule 23's prerequisites or that discovery measures were “likely to produce
10 persuasive information substantiating the class action allegations.” Doninger v. Pac. Nw. Bell,
11 Inc., 564 F.2d 1304, 1313 (9th Cir. 1977).
12 Class certification is not appropriate in civil rights cases involving varied incidents that
13 produced differing harms allegedly caused by third parties and governments. Plaintiffs in such cases
14 cannot satisfy Rule 23(a)(2)’s commonality requirement. In a recent, and directly comparable,
15 Northern District of California case, the court denied class certification in a case involving a “created
16 danger” theory where police officers were alleged to have directed plaintiffs into a dangerous crowd.
17 Hernandez v. City of San Jose, 16-CV-03957-LHK, 2019 WL 4450930, at *15 (N.D. Cal. Sept. 17,
18 2019). The court noted that causation “doomed” plaintiffs’ class certification motion. Id. Each alleged
19 incident would require a causation analysis, and because the incidents involved “third-party attackers”
20 there were unique proximate cause arguments as to each plaintiff: each would be required to show
21 that they would not have been injured by private parties but for the governmental action. Id. The same
22 analysis holds true here, and it warrants denial of class certification on this ground alone.
23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 18 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 19 of 21

1

The Hernandez court also noted that damages issues in cases like this one pose an

2 insurmountable predominance problem under Rule 23(b)(3). Id. (citing and quoting Lambert v.

3 Nutraceutical Corp., 870 F.3d 1170, 1182 (9th Cir. 2017), rev'd and remanded on other grounds,

4 139 S. Ct. 710 (2019)(“[a] Rule 23(b)(3) plaintiff must show a class wide method for damages

5 calculations as a part of the assessment of whether common questions predominate over individual

6 questions.”)). Hernandez noted that each plaintiff was alleging different injuries that would not be

7 susceptible to calculation using a damages model, as required by Rule 23. In cases like Hernandez

8 and this one “[q]uestions of individual damage calculations will inevitably overwhelm questions

9 common to the class.” Comcast Corp. v. Behrend, 569 U.S. 27, 34, 133 S. Ct. 1426, 1433, 185 L.

10 Ed. 2d 515 (2013) (cited and quoted in Hernandez at *17).

11

As in Hernandez, for multiple reasons, there is no class here that can be properly certified.

12 The City therefore respectfully requests the Court deny class certification, in the event that the

13 City’s Rule 12 motion is not granted in full.

14

IV. CONCLUSION

15

Plaintiffs complain of private action, not discriminatory governmental action. Their

16 allegations that the City knew of ongoing criminal and other activity and failed to stop it cannot

17 support their due process and equal protection claims. Similarly, their allegation that property access

18 was temporarily impaired (but never eliminated) by private parties cannot establish a viable takings

19 claim. Similarly, their purported class cannot satisfy basic Rule 23 requirements.

20

Pursuant to Rule 12, because Plaintiffs fail to state a claim upon which relief can be granted,

21 the City requests plaintiffs’ complaint be dismissed with prejudice. In the alternative, the City requests

22 //

23 //

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 19 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 20 of 21

1 that class certification be denied.

2

DATED this 23rd day of July, 2020.

3

PETER S. HOLMES

Seattle City Attorney

4 By: /s/ Joseph Groshong

5

Joseph Groshong, WSBA# 41593

Assistant City Attorney

6

E-mail: Joseph.Groshong@seattle.gov

Seattle City Attorney’s Office

7

701 Fifth Avenue, Suite 2050

Seattle, WA 98104

8

Phone: (206) 684-8200

9

Attorneys for Defendant City of Seattle

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 20 2:20-CV-00983

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

Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 21 of 21

1

CERTIFICATE OF SERVICE

2

I hereby certify that on July 23rd, 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

4

Patty A. Eakes, WSBA #18888

Angelo J. Calfo, WSBA #27079

5

LAW OFFICES

CALFO EAKES, LLP

6

1301 Second Avenue, Suite 2800

Seattle, WA 98101

7

pattye@calfoeakes.com

angeloc@calfoeakes.com

8

9

s/ Daviana Kadiyan

Daviana Kadiyan, Legal Assistant

10

11

12

13

14

15

16

17

18

19

20

21

22

23

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS CERTIFICATION - 21 2:20-CV-00983

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

 
 Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 1 of 62

1

2

THE HONORABLE THOMAS S. ZILLY

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF WASHINGTON 7

8 HUNTERS CAPITAL, LLC, a Washington limited liability company, NORTHWEST

9 LIQUOR AND WINE LLC, a Washington limited liability company, SRJ

10 ENTERPRISES, d/b/a CAR TENDER, a

Washington corporation, THE RICHMARK

11 COMPANY d/b/a RICHMARK LABEL, a

Washington company, ONYX 12 HOMEOWNERS ASSOCIATION, a

13

Washington registered homeowners association, WADE BILLER, an individual,

14 MADRONA REAL ESTATE SERVICES LLC, a Washington limited liability

15 company, MADRONA REAL ESTATE INVESTORS IV LLC, a Washington

16 limited liability company, MADRONA

REAL ESTATE INVESTORS VI LLC, a

17 Washington limited liability company, 12TH

AND PIKE ASSOCIATES LLC, a 18 Washington limited liability company,

19

REDSIDE PARTNERS LLC, a Washington limited liability company, MAGDALENA

20 SKY, an individual, OLIVE ST APARTMENTS LLC, a Washington limited

21 liability corporation, BERGMAN’S LOCK

AND KEY SERVICES LLC, a Washington

22 limited liability company, MATTHEW

PLOSZAJ, an individual, ARGENTO LLC, 23 a Washington limited liability company,

RANCHO BRAVO, INC., a Washington 24 corporation, SWAY AND CAKE LLC, a

25

Washington limited liability company, SHUFFLE LLC d/b/a Cure Cocktail, a

Case No. 2:20-cv-00983 TSZ
SECOND AMENDED CLASS ACTION COMPLAINT
JURY DEMAND

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 1

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 2 of 62

Washington limited liability company, on 1 behalf of themselves and others similarly 2 situated,

3

Plaintiffs,

4

vs.

5 CITY OF SEATTLE, 6

Defendant.

7

8

Plaintiffs hereby allege as follows:

9

I. OVERVIEW

10

1. The rights of free speech and to peaceably assemble are enshrined in our

11 constitutional tradition. Plaintiffs support free-speech rights and support the efforts of those like

12 Black Lives Matter who, by exercising such rights, are bringing issues such as systemic racism

13 and unfair violence against African Americans by police to the forefront of the national

14 consciousness. Specifically, Plaintiffs support the free-speech rights of many of those who

15 gathered on Capitol Hill to form what has been called “CHAZ,” standing for the “Capitol Hill

16 Autonomous Zone,” or “CHOP” for “Capitol Hill Organized Protest” or “Capitol Hill Occupying 17 Protest.”1

18

2. This lawsuit does not seek to undermine CHOP participants’ message or present a

19 counter-message. Rather, this lawsuit is about the constitutional and other legal rights of

20 Plaintiffs—businesses, employees, and residents in and around CHOP—which were overrun by

21 the City of Seattle’s unprecedented decision to abandon and close off an entire city neighborhood,

22 leaving it unchecked by the police, unserved by fire and emergency health services, and

23 inaccessible to the public at large. The City’s decision subjected businesses, employees, and

24

25
1 This complaint primarily refers to the area as “CHOP,” and the people who participated in CHOP who are not businesses, employees, or residents of the area as “CHOP participants.”

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 2

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 3 of 62

1 residents of that neighborhood to extensive property damage, public safety dangers, and an

2 inability to use and access their properties.

3

3. On June 8, 2020, the City of Seattle (“the City”) abruptly deserted the Seattle Police

4 Department’s East Precinct on the corner of Twelfth Avenue and E. Pine Street in Seattle’s Capitol

5 Hill neighborhood, leaving behind numerous barriers that had previously been used as a line

6 between police and protesters.

7

4. When the City abandoned the precinct and the nearby barriers, a number of

8 individuals who had been in the area took control of the barriers and used them to block off streets

9 in an area around the East Precinct.

10

5. In the days and weeks after the City abandoned the East Precinct, CHOP

11 participants occupied the public streets, sidewalks, and parks in the area at all hours of the day and

12 night. Rather than seeking to restore order and protect the residents and property owners within

13 CHOP, the City instead chose to actively endorse, enable, and participate in the occupation of

14 CHOP.

15

6. The City provided Cal Anderson Park, a public park located at the center of CHOP,

16 to CHOP for use as the staging ground supporting CHOP’s occupation of the surrounding area.

17 Supported by the City, countless CHOP participants resided in the park at all times of day and

18 night, having turned it into a tent city. At any given time, hundreds of CHOP participants camped

19 out in the park. Violence, vandalism, excessive noise, public drug use, and other crimes were

20 rampant within the park.

21

7. The City’s conduct resulted in CHOP being blocked off from public access. Among

22 other conduct detailed below, the City provided the participants with concrete barriers to use to

23 block the streets, which CHOP participants indeed used to barricade the streets and create borders.

24 These borders, at times, were guarded by armed CHOP participants who oversaw who could or

25 could not enter CHOP. As a result, the streets were barred to most all vehicular traffic, making it

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 3

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 4 of 62

1 virtually impossible for residents and businesses to access their buildings, receive deliveries, and

2 provide goods and services to the few customers willing to enter CHOP.

3

8. The City’s conduct also resulted in the elimination of basic public safety within

4 CHOP and nearby areas. For example, the City enacted a policy under which police would not

5 enter the CHOP area except during life-and-death emergencies, and, even in those situations, the

6 response was, at best, muted and late. After a fatal shooting in the early morning of June 20, 2020,

7 for example, officers did not even approach the area of the shooting until approximately 20 minutes

8 after the shooting, and no professional medical response was available for at least 15 minutes. At

9 other times, even during life-and-death emergencies, the police acquiesced to demands from

10 CHOP participants that they abandon the area. The City acknowledged the serious safety issues it

11 created, in particular noting that there were “dangerous conditions” at night, but the City

12 nonetheless chose to maintain its policy of providing resources and support to the CHOP occupiers.

13

9. The City’s conduct enabled the widespread destruction and vandalism of private

14 property. Graffiti was and is pervasive throughout the area—it is not only on barriers, streets,

15 sidewalks, but also on nearly every private building within CHOP. Graffiti that was painted over

16 almost immediately returned, and property owners were told by CHOP participants that if they

17 dared to paint over graffiti, their buildings would be more severely vandalized or even burned to

18 the ground. The City did nothing to prevent this conduct from June 8, 2020 to July 1, 2020, but,

19 instead, actively endorsed and supported the ongoing occupation of the CHOP area and the

20 destruction of property that accompanied it. As a result, property owners and their tenants were

21 not able to fully use their properties. Property owners and tenants, for instance, had to lock and

22 barricade their garages and loading areas at risk of having CHOP participants entering and

23 vandalizing them.

24

10. The property owners, businesses, and residents in the area suffered ever-increasing

25 property damage and economic loss every day that CHOP existed in their neighborhood, all

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 4

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 5 of 62

1 because of the City’s active support, encouragement, and endorsement of the occupation. In

2 particular, Seattle Mayor Jenny Durkan provided the CHOP participants with not just tangible

3 resources but also a de facto stamp of approval. Her tweets, interviews, and other statements made

4 it clear that the City was fully aware of what is happening, had no plan or timeline for remedying

5 the ongoing harm, and in fact viewed the occupation of Capitol Hill as something akin to a

6 perpetual block party, which the City wanted to support because of the viewpoints of CHOP

7 participants.

8

11. Plaintiffs and others repeatedly pleaded with Mayor Durkan and others to cease

9 enabling the destruction of their property and the imminent dangers posed to them and their

10 neighborhood. But the City did not listen, or did not care, and it was only after Plaintiffs had to

11 resort to litigation to make themselves heard that the City finally took action to disband CHOP

12

12. Again, this case is not about Plaintiffs’ agreement or disagreement with the

13 inspiration for CHOP, or the viewpoints expressed by the people occupying that area. Instead, it

14 is about the City’s active, knowing endorsement and support of a destructive occupation of a

15 neighborhood to the detriment of the well-being of those who live and work in that neighborhood.

16

II. PARTIES

17

13. Plaintiffs are residents, tenants, property owners, and small businesses in Seattle’s

18 Capitol Hill neighborhood that have been harmed by CHOP.

19

14. Plaintiff Hunters Capital LLC (“Hunters Capital”) is a Washington limited liability

20 company with its principal place of business in King County, Washington. Hunters Capital is a

21 real-estate development, investment, and management company, headquartered near Cal Anderson

22 Park in the Capitol Hill neighborhood with offices in the zone occupied by CHOP at 1620

23 Broadway Seattle, Washington. Hunters Capital owns and manages a portfolio of commercial,

24 multi-family residential, and mixed-use properties in the Capitol Hill neighborhood within and

25 around CHOP, including 500 E. Pike Street, 1517 12th Avenue, 401 E. Pine Street, 1000 E. Pike

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 5

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 6 of 62

1 Street, 900 E. Pine Street, 426 15th Avenue East, 415 18th Avenue South, 523 15th Avenue East,

2 1641 Nagle Place, and 501 E. Pike Street, in addition to other properties in the area it manages.

3 Hunters Capital has suffered economic loss from CHOP. Additionally, its property was damaged

4 and its tenants and employees were harassed.

5

15. Plaintiff SRJ Enterprises, Inc. d/b/a Car Tender (“Car Tender”) is a Washington

6 corporation with its principal place of business in King County, Washington. Car Tender is an

7 automotive repair business. Car Tender’s shop is located at 1706 12th Avenue in Seattle,

8 Washington, in the heart of Seattle’s Capitol Hill neighborhood and directly borders the zone

9 occupied by CHOP. Car Tender has been a small business since 1971 and currently has 10

10 employees. Car Tender’s shop was vandalized and broken into by CHOP participants and its

11 employees were assaulted. With access for customers cut off by CHOP, it suffered a loss of

12 business.

13

16. Plaintiff The Richmark Company d/b/a Richmark Label (“Richmark Label”) is a

14 family-owned Washington company with its principal place of business in King County,

15 Washington. Richmark Label is a label printing and manufacturing business located at 1110 E.

16 Pine Street, Seattle, Washington. Richmark Label is one of the largest manufacturing employers

17 on Capitol Hill, with over 70 employees working at its facilities on Pine Street. Due to street

18 blockages and barricades, and drivers’ fear for safety, trucks and delivery vehicles were unable on

19 multiple occasions to access Richmark Label’s manufacturing facility. In addition to its

20 manufacturing facility, Richmark Label also owns property, portions of which it leases to other

21 tenants, in or near CHOP.

22

17. Plaintiff Northwest Liquor and Wine LLC (“Northwest Liquor and Wine”) is a

23 Washington limited liability company with its principal place of business in King County,

24 Washington. Northwest Liquor and Wine operates a specialty liquor, beer, and wine store in the

25 Capitol Hill neighborhood, located on the corner of 12th Avenue and Pine Street at 1605 12th

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 6

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 7 of 62

1 Avenue, Seattle, Washington, directly across from the East Precinct and wholly within CHOP.

2 Customers could access Northwest Liquor and Wine because of CHOP and after the occupation

3 began in early June, the company’s sales were down approximately 70%.

4

18. The Onyx Homeowners Association (“Onyx HOA”) is a Washington registered

5 homeowners association in King County, Washington. Onyx HOA is an association of, and

6 represents, the residents of the Onyx Condominiums located at 1125 E. Olive Street, Seattle,

7 Washington. Onyx Condominiums, located near the area occupied by CHOP participants on

8 Capitol Hill, has 65 units. The building suffered property damage and theft because of CHOP, the

9 value of the owners’ property has been greatly reduced, and the owners were harassed and

10 threatened.

11

19. Plaintiff Wade Biller is the president of Onyx HOA. He is also a condominium

12 owner in the Onyx building. In addition to the injuries he has suffered as a resident and property

13 owner in CHOP, Mr. Biller was physically assaulted by a CHOP participant while attempting to

14 negotiate with CHOP participants in his capacity as President of the HOA.

15

20. Plaintiff Madrona Real Estate Services LLC (“Madrona Real Estate Services”) is a

16 Washington limited liability company with its principal place of business in King County,

17 Washington. Madrona Real Estate Services is a real-estate development and full-service real-estate

18 management company for both commercial and residential properties. Madrona Real Estate

19 Services owns or manages over 250,000 square feet of real estate in Capitol Hill, including

20 property on Pine street and properties in and around CHOP. Madrona Real Estate Services suffered

21 economic loss from CHOP, among other injuries.

22

21. Plaintiff Madrona Real Estate Investors IV LLC (“Madrona Real Estate Investors

23 IV”) is a Washington limited liability company with its principal place of business in King County,

24 Washington. Madrona Real Estate Investors IV is a real-estate investment company, whose

25 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 7

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 8 of 62

1 on Pike and Pine streets. Madrona Real Estate Investors IV suffered economic loss from CHOP,

2 among other injuries.

3

22. Plaintiff Madrona Real Estate Investors VI LLC (“Madrona Real Estate Investors

4 VI”) is a Washington limited liability company with its principal place of business in King County,

5 Washington. Madrona Real Estate Investors VI is a real-estate investment company, whose

6 holdings include properties located in the Capitol Hill neighborhood, including in or near CHOP

7 on Pike and Pine streets. Madrona Real Estate Investors VI suffered economic loss from CHOP,

8 among other injuries.

9

23. 12th and Pike Associates LLC (“12th and Pike Associates”) is a Washington limited

10 liability company with its principal place of business in King County, Washington. 12th and Pike

11 Associates is a real-estate investment company, whose holdings include properties located in the 12 Capitol Hill neighborhood, including in or near CHOP on Pike and Pine streets. 12th and Pike

13 Associates suffered economic loss from CHOP, among other injuries.

14

24. Plaintiff Redside Partners LLC (“Redside Partners”) is a Washington limited

15 liability company with its principal place of business in King County, Washington. Redside

16 Partners is a real-estate investment and management company, with headquarters in CHOP at 1620

17 Broadway, Seattle, Washington. Redside Partners holds investments in and manages numerous

18 properties in the Capitol Hill neighborhood, including properties in or near CHOP such as 915 E

19 Pine Street. Redside Partners suffered economic loss from CHOP, among other injuries.

20

25. Plaintiff Magdalena Sky is a small business owner who owns and operates Tattoos

21 and Fortune. Tattoos and Fortune is a tattoo parlor and Tarot studio with a sole location at 1605 22 12th Avenue Seattle, Washington, within CHOP. Ms. Sky is the sole proprietor of Tattoos and

23 Fortune. With access for clients cut off by CHOP, Ms. Sky, through her business, suffered a loss

24 of business, in addition to other injuries.

25

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 8

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Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 9 of 62

1

26. Plaintiff Olive ST Apartments LLC (“Olive ST Apartments”) is a Washington

2 limited liability company with its principal place of business in King County, Washington. Olive

3 ST Apartments owns two apartment complexes within and right on the boarder of CHOP, located

4 near Cal Anderson Park at 1703 12th Avenue and 1114 East Olive Street, Seattle, Washington.

5 Olive ST Apartments suffered economic loss from the CHOP, among other injuries.

6

27. Plaintiff Bergman’s Lock and Key Services LLC (“Bergman’s Lock and Key”) is

7 a Washington limited liability corporation with its principal place of business in King County, 8 Washington. Bergman’s Lock and Key’s offices are located at 1714 12th Avenue, Seattle,

9 Washington, in the immediate vicinity of CHOP. Bergman’s Lock and Key provides lock and key

10 services for residential and commercial properties, normally attracting customers from around the

11 Puget Sound area to its Capitol Hill locations. Like other small business, Bergman’s Lock and Key

12 suffered economic loss from CHOP, among other injuries.

13

28. Plaintiff Matthew Ploszaj is a Seattle resident who resides in an apartment at 1210

14 E. Pine Street. He was often blocked from accessing his apartment because of CHOP and the

15 actions of CHOP participants and was forced to live elsewhere at various times during CHOP’s

16 existence.

17

29. Plaintiff Argento LLC (“Argento”) is a Washington limited liability company with

18 its principal place of business in King County. Argento owns and operates Café Argento at 1125

19 Olive Street. Argento has suffered economic loss from CHOP, among other injuries.

20

30. Plaintiff Rancho Bravo, Inc. (“Rancho Bravo”) is a Washington corporation with

21 its principal place of business in King County, Washington. Rancho Bravo is a restaurant serving

22 Mexican food and is located at 1001 E. Pine St, Seattle, Washington. The location where Rancho

23 Bravo operates its restaurant was inhabited by CHOP participants who operated a makeshift

24 medical center. Access to its parking lot and the streets surrounding Rancho Bravo was obstructed

25

27 SECOND AMENDED CLASS ACTION
COMPLAINT
28 Case No. 2:20-cv-00983 TSZ - 9

LAW OFFICES CALFO EAKES LLP 1301 SECOND AVENUE, SUITE 2800 SEATTLE, WASHINGTON 98101 TEL, (206) 407-2200 FAX, (206) 407-2224

Case 2:20-cv-00983-TSZ Document 28 Filed 10/30/20 Page 10 of 62

1 by CHOP participants. CHOP participants operated an unpermitted food stand on the street near

2 to Rancho Bravo’s restaurant.

3

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

4 State of Washington. The Seattle Police Department (“SPD”) is a division of the City. Jenny

5 Durkan is the Mayor and chief executive of the City, and a policymaker for the City.

6

III. JURISDICTION AND VENUE

7

32. This Court has subject-matter jurisdiction over this case under 28 U.S.C. §1331

8 because this action presents federal questions and seeks to redress deprivations of rights under

9 the United States Constitution pursuant to 42 U.S.C. § 1983.

10

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

11 giving rise to these claims arose in the Western District of Washington.

12

IV. FACTUAL ALLEGATIONS

13

A. The Creation of CHOP

14

34. On June 8, 2020, with protests ongoing near the East Precinct, the City emptied the

15 East Precinct of all weapons and valuables, and then abandoned it.

16

35. The City left behind at the precinct and in the surrounding areas large barriers that

17 had been used in previous days to try to limit the movements of protesters.

18

36. Predictably, almost immediately after the SPD abandoned the precinct and the

19 barriers, CHOP participants used the barriers to block off streets in the area and create a “no-cop”

20 zone. Initially, the blocked-off area extended to all streets within one block from the precinct.

21

37. Without any police presence, the CHOP participants organized themselves,

22 declared the area “Free Capitol Hill,” and stationed guards by the barriers that the City had

23 abandoned, thereby creating borders for the occupied area. The area later expanded, was referred

24 to as CHAZ for several days, and eventually became known as CHOP.

25

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1

38. CHOP’s unofficial boundaries stretched north to East Denny Way, east to 13th

2 Avenue, south to East Pike Street, and west to Broadway. It encompassed the entirety of Cal

3 Anderson Park and sixteen city blocks in all.

4

B. The Activities of CHOP Participants

5

39. After the SPD vacated Capitol Hill, the CHOP participants claimed the area as their

6 own with a physical presence and a loose form of governance and justice.

7

40. CHOP participants have maintained borders with barriers and people patrolling the

8 perimeter, as well as vehicles parked in the middle of rights-of-way.

9

41. Many CHOP participants lived on the streets and sidewalks and in Cal Anderson

10 Park, in tents such as the following:

11

12

13

14

15

16

17

18

19

42. They painted graffiti on most available surfaces, and if a property owner painted

20 over the graffiti, the graffiti was typically replaced within a few hours. CHOP participants even

21

22

23

24

25

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1 threatened business owners with retaliation if they painted over graffiti. Examples of this pervasive 2 graffiti include the following: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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1

43. CHOP participants created various unpermitted, ad hoc food dispensaries and

2 stores on public property in front of and near private residences and businesses.

3

44. CHOP participants created a “medical tent” at the Rancho Bravo restaurant under

4 a festival tent.

5

45. On occasion, CHOP participants acted as a replacement police force, including by

6 demanding that business owners release individuals who were caught committing crimes and by

7 attempting to perform their own crime investigations.

8

46. CHOP participants occupied the streets and sidewalks 24 hours a day, and had

9 speeches, debates, movies, music, and various other activities—including, in some instances,

10 illegal fireworks shows—on the streets and sidewalks. Disturbances and noise pollution extended

11 well past 10 p.m. and typically into the early morning of the next day.

12

47. CHOP participants were observed carrying guns in the public streets and parks in

13 broad daylight.

14

48. Cal Anderson Park was one of the focal points of CHOP. The approximately 7-acre

15 park, which was ostensibly owned by the City, was entirely handed over to the CHOP participants.

16 The City supported and enabled CHOP’s occupation of the park through providing

17 washing/sanitation facilities, portable toilets, nighttime lighting, and other material support.

18

49. As a result of the City’s actions, Cal Anderson Park was transformed into a massive

19 tent city for CHOP participants, as shown here:

20

21

22

23

24

25

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1

50. Members of the public could not use Cal Anderson Park. CHOP’s control of the

2 park continued unabated until July 1, 2020. Local residents attempting to take pictures too close

3 to Cal Anderson Park were threatened by CHOP participants, who have said they would steal their

4 smartphones.

5

6

7

8

9

10

11

12

13

51. CHOP participants even built makeshift gardens on the park’s lawn to grow food

14 for CHOP. The City handed over public property in the park for this use, as shown here:

15

16

17

18

19

20

21

22

52. CHOP’s control of Cal Anderson Park was a central nuisance to local residents and

23 businesses. Many of the Plaintiffs’ properties overlook, border, or are adjacent to the park. Not

24 only were those residents deprived of their use of the park, but problems from CHOP’s

25 encampments in the park spilled over into the entire neighborhood. The hundreds of CHOP

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1 participants in the park created excessive noise, even late into the night, in violation of the City’s

2 ordinances. Participants set off fireworks at all hours of the day and night. Trash, feces, and other

3 refuse built up in the park, affecting the whole area. Worst of all, Cal Anderson Park was one of

4 the most violent areas of CHOP. Local residents saw individuals in Cal Anderson Park carrying

5 firearms.

6

C. The Effects of CHOP on Plaintiffs and the Class

7

53. The impacts on Plaintiffs and the Class were extensive. The experiences of each

8 Plaintiff are described in detail below. However, all Plaintiffs and Class members have in common

9 at least the following harms: a lack of public safety assistance and substantially impaired access to

10 and use of their properties. Lack of public-safety assistance even in life-threatening

11 circumstances.

12

54. The City’s endorsement and recognition of CHOP went so far that the SPD adopted

13 a policy and practice of not entering the area except in the case of life-threatening crimes, and even

14 then, the SPD response was weak and delayed.

15

55. On information and belief, the SPD considered the area from Denny Way to Union

16 Street and Thirteenth Avenue to Broadway to be a “no response” zone where the SPD would not

17 respond to anything but the most serious crimes.

18

56. And even in the most serious situations, the SPD’s response was unconscionably

19 delayed. As SPD Chief Carmen Best explained on June 11, 2020, as she stood next to Mayor

20 Durkan:

21

SPD has a responsibility to provide public safety services to the

22

entire East precinct and the City. The actions of a small group cannot and should not deprive an entire segment of our community from

23

public-safety services. In the first day of the SPD not having access

to the precinct, response times for crimes in progress were over

24

fifteen minutes, about three times as long as the average …. If that

is your mother, or your sister, your cousin, your neighbor’s kid that

25

is being raped, robbed, assaulted, and otherwise victimized, you’re

not going to want to have to report that it took the police three times

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longer to get there to provide services to them. The difference in the

1

amount of time could protect someone’s life and prevent a violent

2

attack.

3

57. Recent events in CHOP demonstrate that if anything, Chief Best was being

4 conservative in her description of the public-safety emergency in CHOP.

5

58. At approximately 2:20 a.m. on June 20, 2020, there were two people shot in CHOP.

6 At least one of the shootings happened at or near the intersection of Tenth Avenue and Pine Street,

7 around the corner from the abandoned East Precinct. One of the victims died before reaching the

8 hospital. The second was admitted with life-threatening injuries. No suspects have been identified

9 or taken into custody.

10

59. Raw video streamed from the area shortly after that shooting demonstrates the

11 enormity of the risk created by the City for anyone who lives or works in CHOP. That video clearly 12 captured the following:2

13

a. The video appears to start a couple of minutes after the shooting.

14

b. One shooting victim was taken to the CHOP “medic tent” located in a

15

parking lot under a festival tent.

16

c. No professional medics arrived until approximately 15 minutes into the

17

video to tend to the first shooting victim.

18

d. No police were in the area until approximately 18 minutes into the video,

19

when cars and lights and can be seen several blocks away, and police can be heard on

20

megaphones demanding that barriers be moved to allow the police to enter.

21

e. Approximately 19 minutes into the video, a small phalanx of approximately

22

8 police officers entered the area on foot and arrived in the area of the medical tent,

23

apparently for the purpose of trying to locate and extract the first shooting victim.

24

25
2 https://www.facebook.com/WWConverge/videos/297548387941384/?v=297548387941384

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1

f. The phalanx of officers was immediately surrounded, yelled at, and

2

pursued by CHOP participants.

3

g. One police car finally entered the area approximately 20 minutes into the

4

video.

5

h. The police did not engage with the crowd and promptly left the area, after

6

which CHOP participants created a human chain across the street to bar any further

7

entry.

8

i. There was a second shooting victim in CHOP located a couple of blocks

9

away. It appears that no medics or police responded at all to the location of the second

10

victim.

11

j. Approximately 35 minutes into the livestream video, the second victim was

12

placed into a plain white cargo van and presumably taken to the hospital. A voice can

13

be heard explaining that Medic One drove by but did not come to the assistance of the

14

person who ended up in the white van.

15

k. Shortly after the second victim was driven away, private citizens began

16

looking for bullet casings. No police were on the scene to perform any investigation in

17

the immediate aftermath of the shooting.

18

60. On June 21, 2020, another shooting occurred in the area at approximately 11:00 at

19 night. There was no police or medic response, and the shooting victim was transported to the

20 emergency room by private vehicle.

21

61. In a press conference with Mayor Durkan on June 22, 2020, Chief Best reiterated

22 the seriousness of the public-safety situation, stating:

23

there are countless individuals who are in the CHOP that are

24

there to engage, as the Mayor said earlier, in peaceful demonstrations. But there are also groups of individuals

25

engaging in shootings, a rape, assaults, burglary, arson, and

property destruction, and I have their police reports right

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here. [*Holding up a stack of papers*] I’m not making it up.

1

These things have happened. We cannot walk away from the

2

truth of what is happening there. This is not about politics and I’m not a politician. This isn’t a debate about First

3

Amendment rights. This is about life or death. So we need a

plan.

4

5

62. In the early hours of June 29, yet another shooting occurred in the area. This

6 shooting, at 12th and Pike, left a 16-year-old dead and a 14-year-old in critical condition.

7

63. According to reports, the shooting began when “CHOP security” opened fire on a

8 white Jeep that had crashed into the CHOP barricades. Reports indicate that over a dozen shots

9 were fired.

10

64. The City did not provide emergency medical services at the scene of the shooting

11 in the CHOP area. Instead, one of the victims was transported by private vehicle out of the CHOP

12 area and to a hospital. The other had to be taken “to a meeting point with Seattle Fire Department

13 Personnel, who then transported the victim to Harborview Medical Center.”

14

65. By the time the police reached the scene of the shooting at 12th and Pike to begin

15 an investigation, much of the key evidence had already been tampered with or lost. As the SPD

16 blotter put it, when police arrived on the scene to inspect the Jeep, “it was clear the crime scene

17 had been disturbed.” No suspects have been identified or placed into custody.

18

66. That same night, and possibly in connection with the same incident, bullets were

19 shot into the Onyx Condominium building, with at least one bullet coming within a foot of a

20 resident asleep in bed.

21

67. Over the course of nine days, there were two homicides in CHOP. There had been

22 no homicides in Capitol Hill in 2020 before CHOP started, and in all of 2019, there were only

23 three homicides in the entire Capitol Hill neighborhood.

24

25

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1

2. Impeded access to and use of property

2

68. All Plaintiffs and Class members did not have the ability to use public rights of

3 way, including streets and sidewalks, to access their homes, businesses, and properties.

4

69. CHOP participants regularly moved the City-provided barriers and other large

5 objects wherever they wished to block traffic, sidewalks, and all other manner of ingress and

6 egress.

7

70. In many cases, this meant people could not use public streets and rights-of-way to

8 enter or exit their homes or businesses, clients cannot visit businesses, and businesses could not

9 get deliveries. The difficulties were magnified for the elderly and the disabled.

10

71. The barriers and the constant presence of CHOP participants also meant that

11 residents, property owners, and businesses did not have full use of their property. If they could

12 access their property, safety necessitated that many of them keep their doors locked. Many portions

13 of property that were normally freely accessible—such as garages—had to be shut at all hours or

14 else CHOP participants would vandalize them.

15

72. Garbage and recycling services could not enter the area due to the myriad of

16 barricades and CHOP border guards, forcing residents and businesses to pile up refuse without any

17 idea when they might be able to discard it.

18

73. Residents and businesses in the area were unable to receive deliveries at their homes

19 because delivery companies could not or would not enter CHOP and the surrounding area because

20 of barriers and safety concerns.

21

74. Residents in and near CHOP were forced to endure loud noises, music, and even

22 fireworks at all times of the day and night.

23

75. Residents in and near CHOP did not have free and safe access in or out of their

24 homes.

25

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1

76. Businesses were unable to operate normally, or even open, because of blocked

2 access and concerns for the safety of their suppliers, employees, and customers.

3

77. All of this is caused extensive economic and other harm to Plaintiffs and all other

4 members of the Class.

5

78. As Chief Best stated during a joint press conference with Mayor Durkan on the

6 afternoon of July 1, 2020:

7

If you have watched the news footage, you have seen how absolutely

8

devastating the damage to this neighborhood is. I can tell you personally, after walking through the area, we walked the full perimeter,

9

I was just stunned by the amount of graffiti, garbage, and property

destruction. As we walked around the neighborhood, many people were

10

coming out of their apartments and homes and thanking the officers

profusely for being there and for helping to clean out the area. So, we

11

don’t even know how much trauma people were experiencing because

of what was happening in that area. 12

13

3. Plaintiffs’ individual stories

14

79. The impact of CHOP on residents, businesses, and property owners is best seen

15 through the stories of Plaintiffs, who are suffering from the City’s policies every day.

16

80. Each Plaintiff and the Class has suffered—and continues to suffer irreparable

17 economic and non-economic injury as a direct result of CHOP participants’ presence on Capitol

18 Hill and its aftereffects. The City’s support for CHOP enabled, aided, and abetted the ongoing

19 harm to each of the Plaintiffs and members of the Class.

20

81. Although the City cleared CHOP on the morning of July 1, 2020, Plaintiffs and the

21 Class have continued to suffer harm due to restrictions in the area resulting from the existence of

22 CHOP, the continued public perception of the area as dangerous and unstable, and lost business

23 that may never return. Plaintiffs expressly reserve the right to seek recovery for such ongoing

24 harm.

25

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1

82. Plaintiff Car Tender. Plaintiff Car Tender—a local small business with one

2 location— has suffered a dramatic drop off in its auto-repair business since the establishment of

3 CHOP. Since early June 2020, business revenues declined around 40% from the prior months of

4 April and May 2020. This drop-in sales actually understates Car Tender’s losses, however, as April

5 and May’s revenues were already lower due to the height of the COVID-19 pandemic. In late May

6 2020, Car Tender’s revenues began an upswing coming out of the shutdown, which was suddenly

7 interrupted by the sharp drop in customers caused by CHOP.

8

83. Car Tender’s loss of business revenue is a direct result of CHOP. Access to the

9 shop has at times been substantially impeded due to barricaded streets. Further, customers told Car

10 Tender that they would not bring their cars into the shop, out of fear of CHOP’s location just down

11 the street from Car Tender. Customers even came to the shop only to immediately turn around and

12 leave, because they were fearful to leave their cars at Car Tender’s location. Because of the City’s

13 enablement of CHOP, Car Tender is struggling to make ends meet.

14

84. Car Tender’s premises were also vandalized by CHOP participants. CHOP

15 participants tore down the fence around Car Tender’s car lot, permanently damaging the cement

16 post such that an entire new fence will need to be constructed. They painted and vandalized with

17 graffiti the side of Car Tender’s building. Car Tender was fearful that if the company tried to cover

18 up the graffiti, they would face reprisals from CHOP participants, as CHOP participants threatened

19 to burn down other properties in the area when owners attempted to cover or clean up graffiti.

20

85. Car Tender’s customers were understandably concerned for their safety, and with

21 good reason. Indeed, Car Tender’s shop was recently broken into by a man who assaulted the son

22 of one of Car Tender’s owners with a knife. The details of the incident demonstrate the extreme

23 risk of harm to which the City has exposed Plaintiffs and the Class.

24

86. On June 14th at around 9:30 p.m., a person broke into Car Tender’s building, armed

25 himself with a knife and a spike that he found inside the building, and lit a fire in the shop. After

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1 receiving a call from a neighbor alerting them to the break-in, Car Tender’s owner and son called

2 9-1-1 and then went to the premises themselves, where they found the shop’s garage had been

3 broken into. They found that the property had also been vandalized with Purell hand sanitizer,

4 which the intruder had dumped everywhere to use as fuel for the fire he had started. That fire was

5 still burning when the owner and his son arrived, but they were able to extinguish it. The intruder

6 was still on the premises, however, and he accosted the owner’s son with the knife and spike and

7 abruptly assaulted him by hitting him in the chest.

8

87. Although blindsided by the intruder’s sudden unprovoked attack, the owner and his

9 son were able to wrestle the intruder to the floor in a scuffle. The intruder meanwhile tried to cut

10 the son’s femoral artery and landed two large cuts to his clothing on the side of his leg. He also

11 repeatedly attempted to stab the son with the spike.

12

88. After subduing the intruder, Car Tender’s owner called 9-1-1 again, reporting the

13 arson, burglary, and assault, requesting police assistance at the scene. Other neighbors also called

14 9-1-1. But, despite the multiple 9-1-1 calls. the police never responded to the scene that evening.

15

89. Several CHOP participants on the street who witnessed the incident approached the

16 shop and demanded the release of the apprehended intruder. Car Tender’s owner at first insisted

17 that he was waiting for the police to come to the scene. An angry mob of CHOP participants,

18 perhaps as many as 500 although possibly more, gathered around Car Tender’s fence and broke it

19 down, insisting on the release of the intruder. Members of CHOP mob insisted that the police

20 would never dare respond. Faced with a threat of mob violence, Car Tender’s owner and son

21 handed the intruder over to CHOP participants.

22

90. Because the police refused to protect Car Tender’s property from burglary and

23 arson, Car Tender’s owner was forced to sleep at the shop in an effort to protect it. Car Tender’s

24 owner tried to contact Mayor Durkan’s office to report his concerns as a resident and small

25 business owner but received no response.

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1

91. Car Tender’s experience was not unique. Other local businesses also suffered from

2 the City’s actions.

3

92. Plaintiff Richmark Label. Plaintiff Richmark Label is a local family-owned

4 business on Capitol Hill that runs label-printing operations out of a manufacturing facility on Pine

5 Street, directly adjacent to CHOP. Richmark Label’s business has been negatively affected as a

6 direct consequence of CHOP.

7

93. CHOP frequently blocked access to the 11th Avenue side of Richmark Label’s

8 building, where Richmark Label maintains a loading dock for receiving deliveries and shipping.

9 Richmark Label must receive deliveries on an ongoing basis in order to maintain its business as

10 well as make shipment of its products. Richmark Label’s ability to use its loading dock was 11 substantially impeded, as the 11th Avenue access was frequently blocked by barricades, or because

12 CHOP participants engaged in intimidation tactics, or because of other CHOP activities. Some

13 delivery drivers reported to Richmark Label that they would not even attempt delivery to their

14 building, because it is unsafe. Several delivery drivers who attempted delivery were stopped and

15 accosted by CHOP participants. Richmark Label’s usual shippers refused to deliver and UPS

16 recently elected not to come and pick up a pallet of wine labels for shipment, one of Richmark

17 Label’s largest sources of business. On other occasions, labels shipped late, incurring costs and

18 straining Richmark Label’s business relationships with its customers.

19

94. The City’s support of CHOP put Richmark Label’s business at risk, as well as the

20 livelihood of its over 70 employees.

21

95. This loss to business is not the only harm Richmark Label is suffering due to CHOP.

22 Richmark Label owns its facilities, a historic building from 1927, on which the company paid to

23 have an artistic mural painted as a gift to the whole Capitol Hill community. That mural was

24 vandalized by CHOP participants beyond repair, whereas before CHOP’s occupation there had

25

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1 only been minor instances of occasional graffiti. Now the wall will have to be repaired and

2 repainted.

3

96. Richmark Label also owns a parking lot on the 11th Avenue side of the building. It

4 rents the parking spaces during non-business hours. Richmark Label was forced by CHOP to shut

5 the parking lot down because the roads for accessing the parking lot were blocked and customers

6 are and were afraid of entering the area. The company is receiving none of the usual rental income

7 it typically receives from the parking spaces. The parking lot also typically serves as customer

8 parking for Richmark Label and several of its tenants who rent space in the company’s building.

9 But, due to CHOP and its aftereffects, both Richmark Label and its tenants are being deprived of

10 customer parking.

11

97. Unauthorized cars also parked in Richmark Label’s lot. Richmark Label contacted

12 towing companies, but all refused to tow the cars because CHOP made the area unsafe. Richmark

13 Label called the police on multiple occasions regarding the unauthorized cars parked on their

14 property, but the police would not act. Richmark Label called 9-1-1 regarding the unauthorized

15 cars trespassing on their property, only to be told at least twice that SPD was not responding to

16 calls in the area.

17

98. Like Plaintiff Car Tender, Richmark Label was threatened with violence by CHOP

18 participants. When CHOP first arose, Richmark Label allowed a local news crew to access its roof

19 to film the protests and CHOP. SPD officers then also accessed Richmark Label’s roof to assess

20 the situation, where they were photographed by CHOP participants. Those photographs were then

21 posted online, leading to a social media frenzy against the company. Subsequently, Richmark

22 Label’s employees reported that they did not feel safe coming to work, because of the threat of

23 harassment and violence from CHOP participants. CHOP participants set up cones across 11th

24 Avenue, which must be crossed to access Richmark Label’s building. CHOP participants stopped

25 people and required them to answer questions about who they are and what they were doing in the

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1 area before letting them pass. The result is that customers, shippers, and employees were scared to

2 even enter the area.

3

99. Richmark Label was in contact with the Mayor’s office, but the office did not return

4 the company’s calls, offer any assistance, or provide any opportunity to challenge the City’s

5 decision to authorize the ongoing occupation of the CHOP area. The City’s support of CHOP

6 through encouragement and material support enabled CHOP’s threat to Richmark Label’s

7 business.

8

100. Plaintiff Northwest Liquor and Wine. Northwest Liquor and Wine—a one-location

9 store specializing in high-end wine, beer, and spirits—is yet another local small business that

10 suffered as a result of the CHOP occupation. After record sales in May 2020, the store had its

11 worst month in June 2020 since opening at that location in 2012. In June 2020, the company’s

12 sales were down approximately 70% from average.

13

101. Customers are unable to visit the store because the surrounding streets have been

14 blocked off to traffic. Northwest Liquor and Wine has access to an adjacent parking garage, but

15 they have been forced to close it to prevent CHOP participants from camping out in it and even

16 starting fires. CHOP barricades also meant that suppliers were unable to make deliveries.

17

102. The owners and employees did not feel safe, as there were disturbances in the store

18 and people on the streets nearby carrying guns. Northwest Liquor and Wine normally maintains

19 around 4 to 6 employees. Due to CHOP, its employees were understandably too scared to come to

20 work out of concern for their safety.

21

103. Plaintiff Magdalena Sky (Tattoos and Fortune). Plaintiff Magdalena Sky is an

22 activist and supporter of Black Lives Matter. Ms. Sky is the sole proprietor of Tattoos and Fortune.

23 Ms. Sky is autistic and has worked tirelessly for years using her unique artistic skills to support

24 and grow her business. Her business is her own safety net and primary source of income. CHOP

25 ripped that business out from under her feet.

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104. Like many other local businesses, Tattoos and Fortune is sinking because of the

2 City’s support of CHOP. Ms. Sky’s tattoo and fortune telling services depend on regular client

3 access to its Capitol Hill studio. Tattoo and Fortune’s studio is within CHOP, which made client

4 access impossible. The barricades and encampments blocked both vehicle and foot access to the

5 studio, as well as delivery of vital business supplies, just as they blocked the roads, parking,

6 doorways, and driveways of many local businesses. As a result, Ms. Sky was forced to close

7 Tattoos and Fortune’s doors. Without clients, Tattoos and Fortune cannot generate any revenue.

8 In addition, Tattoos and Fortune suffered from the lack of trash service, access for emergency

9 services, and police protection. Even if Ms. Sky’s clients had access to the studio, many were

10 fearful to come because of CHOP. To reach her business, her clients would have had to cross

11 barricades that CHOP participants set up, where they might be stopped, questioned, and/or

12 harassed by CHOP participants, as others were.

13

105. Ms. Sky herself witnessed theft and looting from other local businesses and feared

14 CHOP participants might steal and loot from her business, should she even try to open her studio’s

15 doors. On one occasion, Ms. Sky was followed and harassed, like so many others have been due

16 to the rise in harassment and sexual assault in the area since CHOP began. The fear of violence

17 caused Ms. Sky stress, exacerbated by her autism. The City ignored her concerns, as with the

18 mental health of many local residents and business owners. Her business—her primary means of

19 livelihood—is losing all its revenue. Some of her clients may never return, as they canceled

20 appointments and began seeking tattoo and fortune services elsewhere.

21

106. Capitol Hill is a diverse neighborhood, known for its minority presence and as a

22 center for Seattle’ LGBTQ residents. Many small business owners in the area are minority-owned

23 and suffering loss of property and business from CHOP, just as Tattoos and Fortune is. The City

24 and CHOP did not respond to concerns of small businesses like Ms. Sky’s Tattoos and Fortune.

25

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1 Ms. Sky, along with other local business owners, had no forum in which to voice her concerns and

2 try to stem her businesses losses accruing each day CHOP and its aftereffects continue.

3

107. Plaintiff Bergman’s Lock and Key. Plaintiff Bergman’s Lock and Key is a small

4 business that has operated on Capitol Hill since 1956.

5

108. Bergman’s Lock and Key’s employees were not safe to come to work due to CHOP.

6 Several on their way to or from work were followed by CHOP participants wielding baseball bats,

7 who threatened them not to come into the area. To protect its property from CHOP participants,

8 Bergman’s Lock and Key was forced to board up its premises. Its building was tagged with graffiti

9 and vandalized. Because CHOP became more dangerous as the days progressed, the company

10 closed around 3:00 p.m., two and half hours before its normal 5:30 p.m. closing time.

11

109. Bergman’s Lock and Key is suffering financially. Its customers cannot access the

12 store due to roadblocks, barricades, and lack of parking caused by the City’s support of CHOP.

13 Other customers are simply too scared to come, because of Bergman’s Lock and Key’s proximity

14 to the CHOP zone. Customers called citing their fears and the company was forced to refer them

15 to competitor businesses outside of the CHOP area. Bergman’s Lock and Key’s revenues declined

16 in June 2020 by 60% due to CHOP. Bergman’s Lock and Key was able to continue working as an

17 essential business during the COVID-19 shutdown, but CHOP stopped nearly all customers from

18 coming in. Business deliveries and shipments were also routinely delayed.

19

110. The City actively supported CHOP participants near Bergman’s Lock and Key. The

20 City provided cleaning stations for CHOP participants, large stainless-steel sinks, and portable

21 toilets.

22

111. Bergman’s Lock and Key tried to complain to the City, but received no response.

23

112. Plaintiff Matthew Ploszaj. Plaintiff Matthew Polszaj has lived for approximately 8

24 years in an apartment he leases at 1210 E. Pine Street. His residence was within CHOP, next to

25 the Seattle Police Department’s East Precinct.

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113. During the existence of CHOP, there were several times that Mr. Ploszaj was unable

2 to access his apartment because of obstructions created by CHOP and CHOP participants. Those

3 obstructions included people, physical barriers, camping tents, festival tents, makeshift

4 “storefronts,” and other structures on the streets and sidewalks around his apartment building.

5

114. Because of these obstructions and because he feared for his safety, Mr. Ploszaj was

6 forced on several occasions during the existence of CHOP to leave the area and stay elsewhere in

7 Seattle.

8

115. Mr. Ploszaj’s apartment building was broken into four times during the existence

9 of CHOP, even though it had never been broken into at any other time during his previous 8 years

10 at that address. The Seattle police were contacted each time the apartment was broken into, but

11 the police did not respond on any of those occasions.

12

116. On the evening of June 29, 2020, an apartment in Mr. Ploszaj’s building was

13 burglarized. Mr. Ploszaj and his neighbor contacted the police after the burglary, at approximately

14 10:30 p.m. Police told them that they would not respond to the building because of its location

15 within CHOP and requested that Mr. Ploszaj and his neighbor meet them at 20th and Madison

16 (more than 8 blocks away) to make a report. One of the residents reported to that location. After

17 an hour had passed since their initial phone call, no police had responded, and Mr. Ploszaj and his

18 neighbor called police again. They were able to make a report on the phone during this second

19 phone call, but no officers responded to investigate.

20

117. On June 25, 2020, a CHOP participant climbed atop Mr. Ploszaj’s building and

21 threatened to kill himself. Mr. Ploszaj called 9-1-1 numerous times to seek assistance. He was

22 asked whether he wanted to meet an officer somewhere outside CHOP because police would not

23 respond to his address. Mr. Ploszaj declined and continued to call 9-1-1 several times during the

24 90 minutes that the individual was threatening suicide. The 9-1-1 operators thanked him for the

25 updates but police never responded to assist.

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1

118. Plaintiff Argento LLC. Plaintiff Argento owns and operates Café Argento. Argento

2 suffered lost income and business because of CHOP. During the existence of CHOP, the presence

3 of numerous CHOP participants wielding guns forced Argento to open later and close earlier

4 because of concerns for the safety of Argento employees and customers.

5

119. Argento customers were also unable to access the café, or were reluctant to come

6 to the café, during the existence of CHOP, because of the numerous blockades and other obstacles

7 on the public streets and sidewalks outside the café. Customers and employees were also harassed

8 on public streets and sidewalks by CHOP participants, and employees were often too afraid to

9 come to work.

10

120. Access to the café for the disabled was especially difficult because of the numerous

11 blockades and other obstacles placed and created by CHOP participants. Argento’s owner, Faizel

12 Khan, contacted the Seattle Department of Transportation about the inaccessibility for disabled

13 persons, but the Department of Transportation did nothing to help improve the access.

14

121. CHOP participants frequently came into the café in order to pressure Mr. Kahn and

15 his employees to support the political views of CHOP and CHOP participants.

16

122. CHOP participants regularly demanded to use the café restrooms and often refused

17 to leave, and on occasion left behind used needles in the bathroom.

18

123. Mr. Kahn called 9-1-1 four times regarding incidents at the café during the

19 existence of CHOP, but he was told that police would not respond to his area unless there was a

20 violent incident.

21

124. CHOP participants regularly deposited human waste and other waste on and in the

22 streets, sidewalks, buses, patios, doorways, and other areas around Café Argento.

23

125. During the existence of CHOP, Argento was unable to use City services for trash

24 and recycling, and could not receive package deliveries from UPS, Federal Express, or Amazon.

25

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126. Plaintiff Onyx HOA. Plaintiff Onyx HOA is an association of Capitol Hill residents

2 and condo owners in the Onyx Condominium building. The HOA and its residents suffered harm

3 from CHOP. The Onyx Condominium’s residents felt unsafe and were constantly barraged by

4 excessive noise, fireworks, and other nuisances. The building was subject to graffiti and other acts

5 of vandalism at the hands of CHOP participants. The HOA and its residents called 9-1-1 but

6 received no response or direction from the City. The HOA’s insurer threatened to raise rates and

7 premiums if CHOP was not disbanded. Tenants made plans to leave, threatening the funding of

8 the HOA. All tenants have lost value in terms of property values as a direct result of the City’s

9 support of CHOP.

10

127. The Onyx Condominiums are on the border of CHOP. As a result, Onyx

11 Condominium residents’ access to their own homes was impeded, due to barricades on the public

12 streets. For example, the president of Onyx HOA, individual Plaintiff Wade Biller, was stopped

13 by CHOP participants at the barricades and told he was not allowed to drive through. He was

14 stopped by a CHOP participant while trying to drive down 12th Avenue to access his home. At

15 other times, so-called “security” for CHOP came to the barricades and offered to escort him into

16 the area to access his home so that CHOP participants would not vandalize his car.

17

128. CHOP participants stole an expensive compact dumpster bin belonging to Onyx

18 HOA. Onyx HOA’s president, Mr. Biller, demanded the bin back, but CHOP participants refused

19 to return it. During negotiations for return of the bin, Mr. Biller was assaulted by a CHOP

20 participant who violently kicked him in the back as he tried to leave the scene. The HOA president

21 called the police, but the police did not respond to the incident of battery and assault for more than

22 90 minutes, by which point the perpetrator was long gone. Eventually, when CHOP participants

23 had access to City-owned barricades to encircle CHOP, the compactor bin was returned.

24

129. Onyx HOA was forced to hire additional security to protect the property and its

25 residents from the CHOP participants. At any time, two to four armed guards had to be present, as

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1 some CHOP participants in the area were violent and armed with guns. The HOA’s residents lived

2 under constant fear and threat to their wellbeing and property.

3

130. Mr. Biller, in his capacity as Onyx HOA’s president, wrote to Mayor Durkan on

4 June 11, 2020, about the plight of the building’s residents. He wrote: “We are fending for ourselves

5 as residents and businesses in the Capitol Hill neighborhood. We have had to hire private security

6 to help keep tabs on the escalating issues . . . . I ask that you take a strong stance and allow the

7 police to reclaim our streets for the residents who live here and don’t [want] to become part of this

8 anti-police and anti-government movement.” Mayor Durkan did not respond or provide any

9 opportunity to challenge the City’s policies supporting the occupation of the CHOP area.

10

131. In the early morning hours of June 29, bullets were shot into the Onyx building,

11 with at least one coming within a foot of a resident asleep in bed.

12

132. Madrona Real Estate Plaintiffs. Plaintiffs Madrona Real Estate Services, Madrona

13 Real Estate Investors IV, Madrona Real Estate Investors VI, and 12th and Pike Associates LLC

14 (collectively “Madrona Real Estate”) suffered economic loss from CHOP, including in the form

15 of reduced rents, property damage, and a decline in property values. Their tenants—Capitol Hill’s

16 local residents and businesses—were also harmed and harassed.

17

133. Madrona Real Estate owns and/or manages multiple residential and commercial

18 buildings on Capitol Hill in and around CHOP. The presence of CHOP greatly reduced the value

19 or property in what was, until recently, one of the most popular and expensive neighborhoods in

20 Seattle.

21

134. A resident in a building managed by Madrona Real Estate recently called 9-1-1 to

22 respond to an incident of violence near Madrona Real Estate’s building at 1414 12th Avenue. The

23 resident had witnessed from her condo’s patio a fight in the street occurring at or near the

24 intersection of 12th Avenue and Union. The resident saw what appeared to be a man and a woman

25 fighting over a child, causing the woman to run into a nearby building and barricading the door to

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1 block the assaulting man. The resident called 9-1-1, who took her name and number. She waited

2 for hours, but police never responded to the incident or called her back. This is just one example

3 of the lawlessness the City enabled in the area. The same resident normally walked her dog in the

4 neighborhood, but was hesitant to leave her residence. She witnessed CHOP participants openly

5 doing hard drugs on the street around her building with impunity due to the lack of any SPD

6 presence.

7

135.

The same building at 1414 12th Avenue managed and owned by Madrona Real

8 Estate was broken into. It was vandalized in various ways, including by pulling out pipes. In one

9 instance, the fire alarm was activated, which set off the sprinkler system (causing evacuation of

10 the building’s over 100 residents and causing flooding in the building garage). Residents also

11 reported that boxes and other items were stolen. During the CHOP occupation, an individual

12 trespassed on the property and defecated in building’s lobby.

13

136. At other locations in the area, Madrona Real Estate’s residents reported that their

14 condos were broken into or burglarized by CHOP participants. CHOP participants harassed

15 residents, vandalized the Madrona Real Estate’s property, and left human feces on multiple

16 premises.

17

137. SPD refused to help Madrona Real Estate protect private property or otherwise to

18 help address these problems. At considerable expense, Madrona Real had to hire increased private

19 security to protect its residents and property. At the building where the fire system was vandalized,

20 Madrona Real Estate incurred considerable expense in fixing the damage to property and had to

21 pay for a fire watch to be instituted.

22

23

24

25

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1

138. On the morning of June 23, 2020, one of Madrona Real Estate’s commercial

2 tenants, a restaurant located at 12th Avenue and Pike Street, near but not directly in the CHOP

3 blockaded area, was attempting to access its location in an effort to try to reopen. However, the

4 entrances and stoop area in front of the restaurant were entirely blocked by an encampment erected

5 by a CHOP participant. The tenant called the police, asking for assistance in removing trespassers

6 from its private property, so that it could access and open the property. The police said that they

7 would not respond because they “are not allowed to come within two blocks of CHOP”.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

139. Clearly, the City’s refusal to even respond to assaults in the neighborhood, let alone

22 take any measures to ensure public order and access, detracted from the area’s desirability for

23 current and potential residents and businesses. At a new property Madrona Real Estate has opened

24 in the area with 45 residential units, only 3 have been leased. Up until the emergence of CHOP the

25 area was among the trendiest location for residents, but, since the emergence of CHOP, Madrona

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1 Real Estate has suddenly had no interest in the 42 unleased units, because no one is interested in

2 moving to the area.

3

140. Madrona Real Estate’s residents and tenants face other hardships as well. Many of

4 the area’s millennial residents regularly shop online, but, according to Madrona Real Estate’s

5 residents and tenants, Amazon would not deliver packages in area, due the barricaded streets and

6 presence of CHOP participants. The inability to purchase or ship through Amazon is even more

7 acutely felt in the midst of the COVID-19 pandemic, when many people rely on deliveries to safely

8 deliver food, medicine, and other essential items.

9

141. Most of Madrona Real Estate’s commercial tenants wanted to open but were unable

10 to do so, because they were fearful of CHOP, had no way of attracting customers, and/or could not

11 be accessed due to blocked streets. Unable to generate revenue, many of these tenants asked

12 Madrona Real Estate for rent relief. Many are small, locally owned stores. Madrona Real Estate

13 has been giving concessions in the form of free rent, resulting in economic loss, but even so many

14 of the small commercial tenants are still facing bankruptcy.

15

142. The City’s policies with respect to CHOP have resulted in other sources of

16 economic loss to Madrona Real Estate. For example, Madrona Real Estate operates a parking

17 garage near CHOP. But, since the occupation of the CHOP area started, nearly no one is coming

18 to the area to shop or dine. Parking revenue in June 2020 was only a small fraction of the average.

19

143. Madrona Real Estate complained to the City and even sent a letter to Mayor

20 Durkan. Mayor Durkan did not respond or acknowledge the plight of the many residents of

21 Madrona Real Estate services, let alone provide any recourse to challenge the City’s policies and

22 conduct.

23

144. Plaintiff Hunters Capital. Plaintiff Hunters Capital is a real-estate company that

24 owns or manages multiple residential, commercial, and mixed-use buildings on Capitol Hill in and

25 around CHOP. Like Madrona Real Estate, the presence of CHOP is causing economic injury to

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1 Hunters Capital, including loss of revenue, damage to property, and decline in property value.

2 Hunters Capital has recently had investors back out of Capitol Hill development projects, citing

3 CHOP as the reason to withdraw. Every day the City supported the ongoing occupation of CHOP,

4 Hunters Capital incurred further irreparable harm.

5

145. Hunters Capital property and employees were also threatened by CHOP

6 participants. For example, a Hunters Capital maintenance employee was recently attempting to

7 clean up CHOP graffiti at a Hunters Capital building located near 10th Avenue and Pike Street at

8 around 7:00 am in the morning. As he started to paint over the graffiti, the worker was accosted

9 by a group of CHOP participants. The participants ordered him to stop removing the graffiti and

10 threatened to burn the building down if he did not comply. Because of the threats, the maintenance

11 worker left without painting over the graffiti, emotionally distraught due to the threats of violence

12 and arson.

13

146. Hunters Capital’s residential tenants found that the area around CHOP was

14 unlivable. For example, they reported numerous noise and safety concerns. Although the City has

15 a noise ordinance, it was not enforced in and around CHOP. CHOP participants violated the

16 ordinance late into every night, even setting off fireworks into the early hours of the morning.

17 Hunters Capital’s residential tenants simply could not sleep and were deprived of their right to

18 quiet enjoyment of their homes. Hunters Capital wrote to the City repeatedly, but the City did not

19 respond to the concerns or provide any recourse or ability to challenge the City’s policies or

20 conduct with respect to CHOP.

21

147. Hunters Capital’s residential tenants also reported concern for their physical safety.

22 Many who used the local Cal Anderson Park for recreation or to walk their pets could not do so

23 because of safety concerns and rampant public drug use. Incidents of assault and harassment

24 occurred in the area. Hunters Capital’s residents recently witnessed a peaceful individual forcefully

25 removed from the area by CHOP mobs. Female renters in particular had reported concerns about

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1 their personal safety, in light of numerous reported instances of sexual assault within CHOP. Some

2 residential tenants have threatened to break their leases at properties owned by Hunters Capital

3 because of the extensive problems created by CHOP.

4

148. Hunters Capital’s commercial tenants are also suffering. Many reported that they

5 could not open, because they feared doing so would expose them to looting and arson. Many

6 tenants witnessed assault, theft, and looting. These commercial tenants were forced by CHOP to

7 close and board up their stores in order to protect them. Some commercial tenants physically could

8 not open under any circumstances, as CHOP participants blocked store entrances, including by

9 setting up residential areas for CHOP participants on public streets and sidewalks with tents.

10 Hunters Capital’s commercial tenants are struggling. Many are small businesses and storefronts

11 that depend on visitors coming to Capitol Hill. Many currently cannot pay their rent as a direct

12 consequence of CHOP and its aftereffects.

13

149. Other Hunters Capital commercial tenants with office space in the area reported

14 that they are and were unable to come to work at their office space, because of blocked access and

15 fear of CHOP participants. Additionally, the commercial office tenants reported that the noise

16 issues were so serious that they and their employees were unable to use their office space for work.

17 Loud speeches and chanting at all hours of the day made normal working conditions impossible.

18 The vast majority of Hunters Capital commercial-office tenants report that they and their

19 employees were simply unable to come to work at all.

20

150. Hunters Capital’s tenants have already begun to leave because of CHOP, and others

21 cannot pay rent. Every day that passes more of the company’s tenants leave the area, at

22 considerable loss to Hunters Capital. Further, there has been no interest from prospective tenants.

23 As long as CHOP and its aftereffects remain, nearly no one is interested in relocating to the Capitol

24 Hill neighborhood.

25

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1

151. Plaintiff Olive ST Apartments. Olive ST Apartments is another small business on

2 Capitol Hill that struggled because of CHOP. Olive ST Apartments owns two apartment buildings

3 close to Cal Anderson Park. Previously a desirable location for renters, life for Olive ST

4 Apartments’ tenants became unlivable. The tenants were terrified by CHOP participants carrying

5 guns, in addition to the rampant violence, harassment, and vandalism within CHOP. Olive ST

6 Apartments’ owner was videotaped and harassed while trying to move a garbage dumpster several

7 blocks outside of CHOP just so the garbage could get picked up.

8

152. Due to safety concerns, Olive ST Apartments was forced to hire private security.

9 Nevertheless, Olive ST Apartments’ buildings were covered with graffiti multiple times. The

10 company tried cleaning the graffiti off, only for its buildings to be vandalized again. On several

11 occasions, CHOP participants attempted to break into its buildings, once breaking the lock box for

12 mail. Olive ST Apartments called the police, but the police told Olive ST Apartments’ security

13 guard that they would not send anyone to the area.

14

153. The noise, including from Cal Anderson Park, also made conditions for Olive ST

15 Apartments’ tenants unlivable. The company received constant complaints about the noise at all

16 times of day and night, including gun shots. Tenants left to avoid the noise.

17

154. In addition to ceding the nearby Cal Anderson Park to CHOP, the City supported

18 the CHOP participants near Olive ST Apartments by providing them with barricades, lights, toilets,

19 handwashing stations, and fire extinguishers. The City allowed CHOP participants to use bright

20 lights at Cal Anderson Park to facilitate CHOP activities there, causing a nuisance to Olive ST

21 Apartments’ tenants.

22

155. Given the unlivable conditions, it was impossible for the company to rent its

23 apartments. Tenants moved out because of the nearby presence of CHOP. No new renters have

24 interest in moving to the area. Each day CHOP and its aftereffects continue, Olive ST Apartments

25 incurs further harm and economic loss.

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156. Plaintiff Redside Partners. Plaintiff Redside Partners performs real-estate

2 management services to buildings near CHOP. Its business has also been hurt by CHOP and its

3 aftereffects. Redside Partners employees reported that they do not feel safe coming to work, as the

4 company’s offices are near Cal Anderson Park. The company’s employees report widespread

5 lawlessness, including vandalism, graffiti, and public drug use affecting the buildings the company

6 manages. CHOP participants trespassed on Redside Partners’s properties, including climbing up

7 fire escapes to get on building roof tops. Redside Partners complained to the City but received no

8 response.

9

157. Capitol Hill’s real-estate companies like Plaintiffs Madrona Real Estate, Hunters

10 Capital, and Redside Partners have invested millions of dollars over the years to turn Capitol Hill

11 into a desirable location, with modern condos, restaurants, and shops. They have made investments

12 in new, state-of-the-art buildings and the restoration of many historic buildings. Over the last

13 several decades, they have helped transform Capitol Hill into one of the nation’s most vibrant and

14 architecturally attractive neighborhoods, a diverse melting pot for both local residents as well as

15 tourists, with the City’s best boutique shopping, dining, socializing, and urban living. It has

16 fostered a livable community for many new residents and a superstructure for many thriving small

17 businesses, which employ thousands of employees from a diverse set of backgrounds. The

18 immense value and wealth this has created, for Plaintiffs, the Capitol Hill community, and Seattle

19 more generally is actively being destroyed by the City’s actions.

20

158. Plaintiff Rancho Bravo. Rancho Bravo is a restaurant well-known for providing

21 quality Mexican food at affordable prices. Its location on Capitol Hill is on 11th and Pine Street, in

22 the center of what became CHOP. In the days following the SPD’s abandonment of the East

23 Precinct, Rancho Bravo’s owner and others met with city officials, including the Fire Chief, and

24 urged them to remove the barricades that had been left behind. They pointed out that, without the

25 barricades, the CHOP participants could continue their protest activities but would not obstruct

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1 streets or hamper businesses. The next day, the City not only failed to remove the existing

2 barricades which had been used by police during the protests, but the City also provided additional

3 concrete barriers to CHOP participants to set up their “autonomous zone” to keep police and others

4 out.

5

159. Also, after the City’s decision to abandon the East Precinct, CHOP participants,

6 without asking Rancho Bravo, set up a makeshift medical center in the outside seating areas in

7 front of the restaurant. This “medic station” was in operation for weeks and obstructed customer

8 access to seating.

9

160. At one point during the occupancy, CHOP participants set up a vehicle and trailer

10 blocking the northeast access point to the Rancho Bravo parking lot. The participants involved in

11 placing these obstructions set up a food stand on the street near Rancho Bravo serving tacos,

12 burritos, fruit, and other concessions. Rancho Bravo’s owner met with the owners of this food

13 stand and asked if they had a permit. He was told that they had no permit but that the CHOP leaders

14 had approved their activities.

15

161. During the CHOP occupancy, Rancho Bravo stayed open, believing that its

16 property would be in greater danger had it abandoned the restaurant. Having seen the damage to

17 other buildings in the area, Rancho Bravo was concerned that CHOP participants would vandalize

18 or perhaps even burn down the Rancho Bravo building if it were abandoned. As it was, CHOP

19 participants left extensive graffiti on and around the restaurant building. Rancho Bravo’s business

20 dropped precipitously during the occupancy, leading to significant economic losses.

21

162. Plaintiff Sway and Cake. Sway and Cake is a clothing store located on 12th Street

22 and Pike Street. Its storefront looked out on barricades placed by CHOP participants at the entrance

23 to CHOP at that intersection. Sway and Cake had been closed due to the public health crisis and

24 was preparing to re-open at the time the protests began. However, once SPD abandoned the East

25 Precinct, and the City discontinued providing police and emergency services to the area, Sway and

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1 Cake had to board up its storefront and remain closed despite State orders permitting re-opening.

2 The store feared the possibility of vandalism, arson, or other crimes. Also, the environment in the

3 CHOP, according to the store’s owner, was not conducive to her clientele; rather, it was completely

4 lawless and dangerous. Sway and Cake’s owner visited the store while CHOP was being occupied

5 and, when approaching the barricades, would be asked by those guarding the barriers why she was

6 entering the area.

7

163. Plaintiff Shuffle LLC/Cure Cocktail. Cure Cocktail is a restaurant and bar with

8 windows and a patio overlooking Cal Anderson Park from its location on Nagle Place. Cure

9 Cocktail’s business suffered dramatically once the CHOP occupation began. Access to Nagle Place

10 was blocked by barricades, and the patio, rather than looking over the normally pleasant Cal

11 Anderson Park, now provided a view of, among other things, armed CHOP participants and a tent

12 city. Because of the notoriety of CHOP and the barricades, deliveries of inventory to Cure Cocktail

13 were cancelled. Without police presence, the area was dangerous, and escalated in danger as crime,

14 including shootings, became common. Potential customers no longer wanted to be near the

15 restaurant or the area. A once vibrant business, even during the health crisis through online orders,

16 Cure Cocktail’s revenues declined dramatically. When interacting with Cure Cocktail personnel,

17 CHOP participants would ask questions such as, “Are you for the CHOP or are you for the police?”

18 Even though Cure Cocktail supports Black Lives Matter and other causes, it became fearful in its

19 communications with the protestors over what might happen if they offended CHOP participants.

20 In some communications, they were threatened with “exposure” over Instagram or other social

21 media sites if they did not express support for specific causes.

22

D. The City Actively Supported and Encouraged CHOP and CHOP Participants.

23

164. In the face of all this destruction, City leaders, including Mayor Durkan, embraced

24 the existence, message, and methods of CHOP and CHOP Participants. They did this with physical

25

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1 support and extensive verbal support and encouragement that has expressly endorsed the

2 barricading and occupation of City streets and parks.

3

165. Since the day that the City abandoned the East Precinct, the City had full knowledge

4 of the problems created for businesses and residents in and around CHOP, including property

5 damage, lack of police response, the inability for workers and residents to enter and leave the area,

6 the inability for businesses to receive deliveries, and other adverse impacts on residents,

7 businesses, and property owners in the area. The City nevertheless adopted a policy supporting the

8 CHOP occupation, acting with deliberate indifference toward those suffering harms from it.

9 Evidence of the City’s knowledge includes the following:

10

a. At a June 11, 2020 press conference with Mayor Durkan, Chief Best made

11

it clear that the City was fully aware that its 9-1-1 response times had tripled and that

12

there was a serious public-safety crisis for anyone who lives or works in CHOP.

13

b. On June 16, 2020, the City stated, via a press release from the Mayor’s

14

office:

15

Beginning last Tuesday, City officials have been on site on Capitol

16

Hill to work [to] meet community needs including hygiene, sanitation and safety. Utilities including Puget Sound

17

Energy and SPU have been able to respond to the area for service.

Seattle Police Chief Carmen Best has visited the site multiple

18

times. Over the past week, conversations continued between City

officials, organizers onsite for the CHOP, residents and

19

businesses. … Every day, Seattle Fire Chief Harold Scoggins,

Seattle Department of Transportation Director Sam Zimbabwe,

20

and Seattle Public Utilities General Manager Mami Hara have

been on site. On Sunday, they held a meeting with onsite

21

organizers, small businesses, and residents to discuss proposed

22

changes to the protest zone.

c. On information and belief, Mayor Durkan and the SPD have been inundated 23

with complaints about CHOP that describe in detail the extensive property damage, 24

restricted access, and economic loss that residents, businesses, and property owners are 25

suffering.

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1

d. In response to at least some requests from desperate businesses and

2

residents for her to cease her support of CHOP, Mayor Durkan’s office has provided a

3

stock response acknowledging that the City is “maintaining” a space for CHOP,

4

including by, for example, providing a “sturdier concrete barrier” to help CHOP block

5

a public street. The stock response states in part as follows:

6

Thank you for reaching out.

7

The Capitol Hill Organized Protest has emerged as a gathering

8

place where community members can demand change of their

local, state, and federal government. Capitol Hill and Cal

9

Anderson Park have long been a gathering place for justice. While

there have been inaccurate and misleading depictions of the CHOP

10

from the President and some national media, the City believes first

amendment activities can continue while also maintaining public

11

safety and allowing access for residents and businesses who

operate in the area. Mayor Durkan believes these changes can help

12

ensure any focus of the CHOP and Cal Anderson will allow for

13

peaceful demonstrations to continue.

14

Beginning last Tuesday, City officials have been on site on Capitol

Hill to work [to] meet community needs including hygiene,

15

sanitation and safety. Utilities including Puget Sound Energy and

SPU have been able to respond to the area for service. Seattle

16

Police Chief Carmen Best has visited the site multiple times. Over

the past week, conversations continued between City officials,

17

organizers onsite for the CHOP, residents and businesses. The

City is committed to maintaining space for community to come to

18

together, protest and exercise their first amendment rights. Minor

19

changes to the protest zone will implement safer and sturdier barriers to protect individuals in this area, allow traffic to move

20

throughout the Capitol Hill neighborhood, ease access for

residents of apartment building in the surrounding areas, and help

21

local businesses manage deliveries and logistics. Additionally all

plans have been crafted with the goal of allowing access for

22

emergency personnel including fire trucks.

23

Every day, Seattle Fire Chief Harold Scoggins, Seattle

Department of Transportation Director Sam Zimbabwe, and

24

Seattle Public Utilities General Manager Marni Hara have been on

25

site. On Sunday, they held a meeting with onsite organizers, small

businesses, and residents to discuss proposed changes to the

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protest zone. In coordination with protesters onsite, work began at

1

6:30 a.m. on Tuesday to remove a tent barrier at 10th and Pine and

2

replace it with a sturdier concrete barrier to improve public safety. The City has successfully worked with protesters onsite to

3

reconfigure the CHOP to allow for public safety and better access

for the local community. That has involved rerouting traffic,

4

freeing up alley access, opened streets, and replacing makeshift

barriers with heavy concrete barriers that can be painted.

5

6

e. In addition to the numerous City officers listed above, Mayor Durkan

7

herself has personally visited CHOP and has seen what is happening. In an interview given

8

in her City offices on Facebook Live on June 12, 2020, Mayor Durkan made clear that she

9

had seen the barriers and talked to CHOP participants and apparently approved of them

10

using an individual with behavioral health issues to enforce the perimeter: “It’s interesting,

11

when I was at the CHAZ, walking around, similar kind of philosophy, because there’s this

12

one guy, some behavioral health issues, and it was like, look, he has some hard times, and

13

he helps on that barricade over there, and then when he starts having a hard time, we just

14

bring him over here, take care of him, feed him. And that’s what you gotta do, right?”3

15

f. On June 22, 2020, Mayor Durkan stated at a press conference:

16

Over the days, tens of thousands of people have peacefully gathered

17

or visited Capitol Hill. During the day, there have been no major

incidents. But we know it is very different at night, particularly in

18

recent nights. The cumulative impacts of the gatherings and protests

and the nighttime atmosphere and violence has led to increasingly

19

difficult circumstances for our businesses and residents. Most of

20

them supported protesters’ right to gather at the outset. They stand

21 3 https://www.facebook.com/WWConverge/videos/250593506242797/?__tn__=kC-
R&eid=ARBT9Zl4Zd0BnqFUyG1bgaapWeIo6meLrp9YI7QgilK36tLAFfNcpij4zHFTEwP0wNzoVQK7O1LPtpa8
22 &hc_ref=ARTeZJ-
MVhRABE0ZxnSxzApxaoAJVsmqCzhgB7vaP0wwkcuhf0CtwXnjqpvqfAIKLQk&__xts__[0]=68.ARDhXBScmD
23 _P9GnI4X2NL4z0eUgRkuV8hj_BUWpBgtqxg133nAdZz00w2pqmYlrfVrVanpZgUlgy2rw9hbGAwTWLjcxp1fAP
AVjYhDHpvEOpeSmJavdPNPPlK_wodfv_idPwOeVfsbgsB04YjUKfXfnUZvddSThmUspA_o5oqETWWFluP2o_
24 Yh-
tP64swtkdKoXl374Vd0zqTxRoapQChSzCt5dXToGlW6ESVGiUVQznk42YXs8U2lpzAwJmp99RXyrNW3fSYzU
25 cPopUKTNN-
KP7EBDNdje9UibYcP84111ipRk31bjIk5XrSRcU2rjmqzsd_KjoOwrpoHYKssQd5Vnwe6OvBXCSGW_4ctaQKX mwUcmaTA

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with them in solidarity. But the impacts have increased, and the

1

safety has decreased. Both on Saturday morning and last night there

2

were incidents of gun violence. And that escalating violence concerns me, Chief Best, residents, businesses, and the greater

3

community. All of Capitol Hill has been impacted.

4 g. At the same June 22, 2020 press conference, Chief Best stated that reports

5 to the police demonstrate that some CHOP participants are “engaging in shootings, a rape,

6 assaults, burglary, arson, and property destruction, and I have their police reports right here.

7 I’m not making it up. These things have happened.”

8 h. At a press conference on June 29, 2020, the morning after yet another fatal

9 shooting in the CHOP area, Chief Best repeatedly emphasized how dangerous the situation

10 is within CHOP, stating:

11

[I]t’s very unfortunate that we have yet another murder in this area

12

identified as the CHOP. Two African American men dead at a place

13

where they claim to be working for Black Lives Matter. But they’re gone. They’re dead now. And we’ve had multiple other incidents –

14

assaults, rape, robbery, and shootings. And so, you know, this is

something that is going to need to change. We’re asking people to

15

remove themselves from this area for the safety of the people. If they

care about people, they’re gonna have to try to help us to make it

16

safe. Not opposed to anybody’s issue or concern. They certainly can

demonstrate, you know, and peacefully any place, but they can’t

17

hostilely take over a neighborhood and cause the crime levels to go

up like this. Two men are dead. Two men are dead. And a child, a

18

14-year-old, is hospitalized and we don’t know what is gonna

19

happen to that kid.

20

…

21

You know, at this point, the East Precinct, while important to us,

what’s much more important is that this neighborhood is not under

22

siege and that there are not people being victimized. You know, the

precinct is a building. The precinct is a building. But people dying,

23

rapes, robbery, assault – that is what we need to deal with. That’s

what we need to deal with. 24

25

…

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I have said this multiple times, it is taking us three and a half times

1

longer to get here. We have a fire station that is less than two blocks

2

from here, they cannot go into this area. We have had so many issues and problems. And, you know, I have the police reports, people have

3

identified as victims… we need to make sure that we are able to

provide public safety. That is what needs to happen.

4 …

5

As an African American woman, with uncles and brothers and stuff,

6

I wouldn’t want them to be in this area. We’ve had two men killed.

And we have a child that’s injured from gunfire. So this is a real

7

problem. And I would question why we would continue to allow this

8

to happen.

9

…

10

I think everybody in city government has been talking about what

we can do to have a reasonable response, that limits any issue or

11

danger, but we also recognize that a place where we have seen now

two murders, multiple people injured, there needs to be some more

12

action for public safety. I think everybody can agree on that.

13

…

14

[T]his situation as you reporters are walking around, you can see

15

that it can be dangerous and unacceptable, and so we’re gonna have

to work through this. This is not safe for anybody. Not anybody.

16

Multiple cases. Two murders. And it’s not right. So, thank you for

your time. I think there will be other times we will get a chance to

17

talk and go over it. But, as you can see, this is not an acceptable

situation. Thank you. 18

19 i. At one point during this same press conference, in response to a question

20 about whether the City-provided barriers had saved lives by preventing a Jeep from

21 entering the CHOP area, Chief Best responded:

22

CHIEF BEST: Yeah, I don’t agree. I absolutely do not agree with

23

that. I think that is absolutely ludicrous. I’m not gonna let the

24

detractors and the naysayers and the agitators be the ones who are the voice here. There are people who live here, there are multiple

25

people who are being injured and hurt, and we need to do something

about it. It is absolutely irresponsible for this to continue.

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1

j. On July 1, 2020, Chief Best stated in a press conference, “This order and

2

our police response comes after weeks of violence in and around the Capitol Hill Occupied

3

Protest zone, including multiple shootings resulting in many injuries and two deaths. …

4

Our job is to support peaceful demonstrations. But what has happened here on these streets

5

over the last two weeks – few weeks, that is – is lawless and it’s brutal and bottom line it

6

is simply unacceptable.”

7

166. The extent of the City’s knowledge of what was going on in CHOP is demonstrated

8 by the following from Mayor Durkan’s emergency order that went into effect on July 1, 2020:

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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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
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1

167. Despite having knowledge of exactly what was happening at CHOP by being there

2 every day and in apparently constant contact with area residents and business owners, the City

3 acted with deliberate indifference toward the safety and property interests of those residents and

4 businesses.

5

168. The City also enabled the blocking of ingress and egress for businesses and

6 residents in the area, without providing plaintiffs any notice of this deprivation or opportunity to

7 be heard on the matter. Reportedly, the City reached an informal agreement with CHOP

8 participants to allow limited one-way access on Eleventh and Twelfth Avenues starting on June

9 16, 2020 (Plaintiffs were not invited to participate in these negotiations). However, as part of that

10 agreement, the City actually fortified the rest of CHOP with new barriers (again without providing

11 Plaintiffs notice or an opportunity to be heard on the matter). And even the planned limited access

12 for some streets almost immediately broke down when CHOP participants reestablished

13 impediments. The City’s response to this was apparently to do nothing.

14

169. At the same time that the City has acted with deliberate indifference to property

15 owners and people who live and work in and near CHOP, the City physically aided, endorsed, and

16 actively encouraged CHOP participants to continue their occupation of public spaces.

17

170. The City physically aided CHOP participants in their occupation of the area in at

18 least the following ways:

19

a. When the City abandoned the East Precinct on June 8, 2020, it left behind

20

the barriers that had previously blocked street access and protected the East Precinct from

21

protesters. These barriers foreseeably served as the raw materials that allowed CHOP

22

participants to block streets and create CHOP within a very short time.

23

24

25

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1

b. On June 16, 2020, the City provided even more concrete barriers to CHOP

2

participants so that CHOP participants could replace wooden barriers and fortify their

3

blockages of streets.4

4

c. The City provided portable toilets and wash stations for CHOP participants.

5

d. The City has provided medical equipment, including beds and other

6

supplies, to the CHOP “medical tent.”

7

e. The City provided nighttime lighting at Cal Anderson Park.

8

171. As the City admitted in Mayor Durkan’s July 1, 2020 emergency order, the City

9 “facilitated” CHOP by:

10

“* Providing basic hygiene, water, litter, and garbage removal.

11

* Temporarily allowing obstructions of public parks, streets, and sidewalks

12

* Modifying SPD and SFD response protocols….

13

* Modifying streets and pedestrian access routes.

14

* Providing social services outreach and engagement….

15

* Facilitating modified city services delivery to local residents and businesses

16

impacted by events in this area.”

17

172. The City’s policies effectively authorized the actions of the CHOP participants. The

18 City communicated clearly to CHOP participants that they may indefinitely continue occupying

19 the streets in the area, maintaining their barricades, and blocking traffic, all without interference

20 from the City. The City has communicated this message in at least the following ways:

21

a. On June 11, 2020, during a joint press conference with the Chief of Police,

22

Mayor Durkan stated: “There’s not a specific date … because we are trying to do things

23

that are responsible.”

24

25
4 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

b. On June 12, 2020, in response to a direct question from CNN’s Chris

2

Cuomo about how long the City would allow CHOP participants to continue to occupy the

3

neighborhood, Mayor Durkan responded, “I don’t know. We could have the Summer of

4

Love.”

5

c. On June 16, 2020, the City announced through an official statement from

6

Mayor Durkan that it had negotiated with CHOP participants to adjust some but not all

7

their barriers to allow one-way traffic on Twelfth Avenue.5 This agreement was an

8

endorsement of CHOP participants’ other barriers and its overall occupation of the

9

neighborhood.

10

d. In announcing the supposed opening of a one-way corridor, the City made

11

clear in a statement from the Mayor that it was an active participant in maintaining and

12

solidifying CHOP barriers and boundaries:

13

The City is committed to maintaining space for community to come

14

together, protest and exercise their first amendment rights. Minor changes to the protest zone will implement safer and sturdier

15

barriers to protect individuals in this area, allow traffic to move

throughout the Capitol Hill neighborhood, ease access for residents

16

of apartment building in the surrounding areas, and help local

businesses manage deliveries and logistics. [emphasis added]6

17

18

e. Also on June 16, 2020, Mayor Durkan suggested that the City agreed that

19

police officers will only enter the occupied area for “significant life-safety issues.”7

20

f. On June 22, 2020, Mayor Durkan and Chief Best held a joint press

21

conference in which they expressed concern about the impacts of CHOP but also indicated

22

at that time there was no specific timeline or plan for lessening those impacts or removing

23

the blockades, barriers, and tents from CHOP.

24
25 5 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/
6 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/ 7 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/

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1

173. The City also made numerous statements indicating that it endorsed and would

2 continue to support what CHOP participants were doing in the area, thereby ensuring the continued

3 and indefinite occupation and blockading of the neighborhood, and all the damage it has caused

4 and will cause. The City’s statements include at least the following:

5

a. On June 11, 2020, Mayor Durkan posted following on her Twitter page:

6

“The Capitol Hill Autonomous Zone #CHAZ is not a lawless wasteland of anarchist

7

insurrection – it is a peaceful expression of our community’s collective grief and their

8

desire to build a better world.”

9

b. On June 11, 2020, Mayor Durkan also posted on her Twitter page: “For the

10

thousands of individuals who have been on Capitol Hill, I think you’ve seen what I’ve

11

seen: the painting of Black Lives Matter along Pine Street, food trucks, spaghetti potlucks,

12

teach-ins, and movies.”

13

c. On June 11, 2020, Mayor Durkan stated during a joint press conference with

14

the Chief of Police:

15

Lawfully gathering and expressing first Amendment rights, and

16

demanding we do better as a society, and providing true equity for communities of color, is not terrorism. It is patriotism. The right to

17

challenge government and authority is fundamental to who we are

as Americans. … And for the thousands of individuals who’ve been

18

on Capitol Hill, many of them, what you’ll see is a painting of

Black Lives Matter along Pine Street. Food trucks, spaghetti

19

potlucks, teach-ins, movies, free granola bars . . . .

20

d. During the same press conference on June 11, 2020, Mayor Durkan also

21

stated:

The Capitol Hill area—in fact, some of my family is up there right

22

now—… it is not an armed ANTIFA militia no-go zone. It is, a

number of people are there, we’ve had ongoing communications

23

with them, with the businesses, with the residents, and we will

24

make sure that we find some way for people to continue to protest peacefully while also getting ingress and egress. We’ve had blocks

25

of Seattle in Capitol Hill shut down every summer for everything

from Block Party to Pride. This is not really that much of an

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operational challenge. But we want to make sure that the businesses

1

and residents feel safe and we’ll continue to move that forward.

2

3

e. During her Facebook Live interview, Mayor Durkan also stated “I was up

4

there today, walking around, talking to people, and I think we just have to continue to

5

listen to people and figure out a way that there’s still a way for people to have that kind

6

of free expression, but we need to open up the streets, too, at least 12th so we can get

7

fire through, and like that, so we’re going to keep talking to people and listening to

8

them. But I heard a lot of great ideas and I heard a lot of community strength there.

9

That was cool.”

10

f. Also on June 12, 2020, during her interview with CNN’s Chris Cuomo,

11

Mayor Durkan said, “We’ve got four blocks in Seattle that just saw pictures of that is

12

more like a block party atmosphere. It’s not an armed takeover. It’s not a military junta.

13

We will – we will make sure that we can restore this. But we have block parties and

14

the like in this part of Seattle all the time. It’s known for that.”

15

g. On June 12, 2020, Mayor Durkan endorsed the gardens being planted in Cal

16

Anderson Park on Twitter: “Earlier today I visited the #CHAZ and met Marcus

17

Henderson, the person behind the new community garden popping up in Cal Anderson

18

Park. Read more about Marcus and the work that’s gone into creating the gardens:

19

thestanger.com/slog/2020/06/1.”

20

h. Mayor Durkan also tweeted on June 12, 2020: “For as long as I can

21

remember, Capitol Hill has been autonomous – it’s been a place where people go to

22

express themselves freely. Today at the #CHAZ, I spoke with organizers and

23

community about how we can move forward and keep our communities safe, together.”

24

25

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1

i. Mayor Durkan tweeted on June 16, 2020: “The #CHOP has emerged as a

2

gathering place for community to demand change of their local, state, and federal

3

government.”

4

j. On June 19, 2020, Mayor Durkan officially declared that there was no

5

longer a state of emergency in the City because “demonstrations since that day have

6

been and continue be largely peaceful.”

7

k. On June 21, 2020, after two people were shot in CHOP and one of them

8

died, Mayor Durkan issued a statement indicating that the City still had no plans to

9

cease supporting CHOP and that the City was instead acting to work with and preserve

10

CHOP.

11

174. The City changed its tone after it learned that this lawsuit would be filed, and

12 especially after Plaintiffs filed their first complaint. This included finally clearing CHOP of

13 barricades and CHOP participants on July 1, 2020, in the face of an impending motion for a

14 temporary restraining order. But the City’s earlier assistance and endorsement of CHOP and

15 CHOP participants caused, and continue to cause, harm to Plaintiffs and the Class that would not

16 have occurred absent the City’s actions.

17

175. The clearing of the area on July 1, 2020, was easily and accomplished without

18 violence on either side, demonstrating that the City could have and should have cleared the area

19 far earlier.

20

V. CLASS ALLEGATIONS

21

176. Plaintiffs seek to certify a class of similarly situated persons pursuant to Fed. R.

22 Civ. Proc. 23(b)(2) and/or 23(b)(3).

23

177. The Class is hereby defined as follows: All persons or entities who own property

24 in, have a business in, or reside in the area in the City of Seattle bounded by the following streets:

25 Denny Way, Union Street, Thirteenth Avenue, and East Broadway. This definition excludes the

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1 City of Seattle and any departments or agencies of the City of Seattle, including the Seattle Police

2 Department.

3

178. The definition of the Class is unambiguous. Plaintiffs are members of the Class,

4 and all members of the Class can be identified through public records and notified by mail or other

5 means of notification.

6

179. The number of Class members makes joinder impractical. Plaintiffs do not know

7 the exact number of members in the Class, but believe the total number of businesses, residents,

8 and property owners in the Class to be in the thousands.

9

180. There are numerous questions of law and fact common to the Class that

10 predominate over any individual issues. These issues include the following:

11

a. Whether the City has participated in, endorsed, or encouraged the creation,

12

maintenance, and continued existence of CHOP.

13

b. All facts regarding the existence and maintenance of CHOP including at least

14

the following:

15

i. The boundaries and nature of the SPD’s “no-go” zone in and

16

around CHOP.

17

ii. All facts and circumstances surrounding the City’s

18

participation in, endorsement of, or encouragement of the

19

creation, maintenance, and continued existence of CHOP.

20

iii. The nature and scope of activities of CHOP participants.

21

c. Whether Plaintiffs and the Class have legally protected constitutional property

22

rights.

23

d. Whether the City has infringed on those property rights by its actions with

24

regard to CHOP.

25

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1

e. Whether the City was required to provide notice and a hearing to Class

2

members before infringing on those property rights.

3

f. Whether CHOP and CHOP participants are a nuisance within the meaning of

4

RCW 7.48.010, et seq.

5

g. Whether the City has participated in the maintenance of that nuisance.

6

h. Whether the City has acted with deliberate indifference toward Plaintiffs and

7

the Class.

8

i. Whether the harm suffered by Plaintiffs and the Class was foreseeable and

9

obvious.

10

j. Whether the City’s actions constitute an unlawful gift within the meaning of

11

the Washington Constitution.

12

k. Whether Plaintiffs and the Class have suffered a taking without just

13

compensation.

14

l. Whether the City’s actions were pursuant to a City policy.

15

m. Whether the City’s actions were ratified by a City policymaker.

16

n. Whether Plaintiffs and the Class are entitled to injunctive relief.

17

181. The claims of the Plaintiffs are typical of the members of the Class. All Plaintiffs

18 reside in the Class and have been subject to the same course of conduct by the City.

19

182. The Plaintiffs will fairly and adequately represent the Class. Plaintiffs are all

20 members of the Class and have there are no conflicts between Plaintiffs and other Class members.

21 Plaintiffs are well-informed as to the nature of this case and the claims against the City and have

22 retained competent and experienced counsel that intend to prosecute this action vigorously.

23

183. The City has acted or refused to act on grounds that apply generally to all Plaintiffs

24 and the Class such that injunctive relief is appropriate respecting the Class as a whole.

25

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1

184. The issues that Class members have in common predominate over any individual

2 issues. The City engaged in a common course of conduct giving rise to the harms suffered by

3 Plaintiffs and the Class. A single, common policy is at issue in this case. Individual questions, if

4 any, pale by comparison to the numerous common questions that dominate. The injuries sustained

5 by the Class members flow, in each instance, from a common nucleus of operative facts.

6

185. A class action is superior to other available methods for the fair and efficient

7 adjudication of this controversy because joinder of all class members is impracticable. The

8 prosecution of separate actions by individual members of the Class would impose heavy burdens

9 upon the courts and the City and would create a risk of inconsistent or varying adjudications of the

10 questions of law and fact common to the Class. A class action would achieve substantial economies

11 of time, effort, and expense, and would assure uniformity of decision as to persons similarly

12 situated without sacrificing procedural fairness. Individual litigation of the legal and factual issues

13 raised by the conduct of the City would increase delay and expense to all parties and to the court

14 system. The class action device presents far fewer management difficulties and provides the

15 benefits of a single, uniform adjudication, economies of scale and comprehensive supervision by

16 a single court. Given the similar nature of the claims of the members of the Class and the uniform

17 application of Washington and federal law to the claims of Plaintiffs and the members of the Class,

18 the Class’s claims can and will be most effectively managed by a class action.

19

20

21

22

23

24

25

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1

VI. CLAIM FOR RELIEF

2

FIRST CAUSE OF ACTION – PROCEDURAL DUE PROCESS

3

42 U.S.C. § 1983

4

U.S. Const. amend XIV § 1

5

On behalf of Plaintiffs and the Class

6

186. Plaintiffs incorporate all other allegations in this complaint as if set forth herein.

7

187. Plaintiffs and the Class have constitutionally protected property interests, as

8 defined by Washington state law, to exclude others from their property, to the use and quiet

9 enjoyment of their property, and to access their property via public rights-of-way.

10

188. The City has infringed on those constitutionally protected interests, including by

11 (1) creating, assisting, endorsing, and encouraging an indefinite, unpermitted occupation and

12 blockade of the public streets, sidewalks, and parks in and around CHOP, thereby denying

13 Plaintiffs access to their properties, and (2) creating, assisting, endorsing, and encouraging the

14 pervasive vandalism and trespasses against Plaintiffs’ properties, thereby denying Plaintiffs the

15 ability to use their properties and exclude others from them.

16

189. Plaintiffs and the Class also have constitutionally protected liberty interests in the

17 fundamental right of free movement and the right to remain in a public place of one’s choosing.

18

190. The City has infringed on those constitutionally protected liberty interests through

19 its CHOP policies, including by, among other conduct as alleged throughout this Complaint,

20 granting de facto autonomy over the CHOP area to the CHOP participants and allowing them to

21 determine who could and could not travel through and within the CHOP area.

22

191. The City has infringed on Plaintiffs’ constitutionally protected interests without

23 providing Plaintiffs with any due process before depriving them of these interests, or providing

24 any recourse following the deprivation of the interests. In particular, the City provided Plaintiffs

25 with no notice or opportunity to be heard before or after depriving Plaintiffs of the freedom of

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1 movement, the right to access their properties, the right to use their properties, and the right to

2 exclude others from their properties,

3

192. The City has done so pursuant to City policy as created, ratified, and authorized by

4 City policymakers, including Mayor Durkan, without any notice to Plaintiffs or opportunity for

5 them to be heard.

6

193. As a direct result of the City’s actions, Plaintiffs and the Class have been denied

7 regular and customary use of, access to, and enjoyment of their property, including the ability to

8 drive or park in CHOP, the ability to walk to their homes or business without obstruction, the

9 ability to accept deliveries to their homes or business, the ability to prevent and remedy vandalism,

10 the ability to prevent trespasses and theft against their properties, the ability to freely move about,

11 and the ability to remain in a public place of one’s choosing.

12

194. Plaintiffs and the Class have been harmed by this deprivation, including through

13 loss of revenue, loss of property value, damages to property, and other damages.

14

SECOND CAUSE OF ACTION – SUBSTANTIVE DUE PROCESS

15

42 U.S.C. § 1983

16

U.S. Const. amend XIV § 1

17

On behalf of Plaintiffs and the Class

18

195. Plaintiffs incorporate all other allegations in this complaint as if set forth fully

19 herein.

20

196. Plaintiffs have a right pursuant to substantive due process to be protected from

21 state-created dangers.

22

197. The City‘s actions, assistance, endorsements, and encouragements of CHOP and

23 CHOP participants greatly increased the likelihood of property damage, loss of business revenue

24 and rental income, personal injury, loss of use of property, and other damages to Plaintiffs. This

25

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1 subjected Plaintiffs and the Class to harm that they not would have suffered absent the City’s

2 actions.

3

198. All damages suffered, and still to be suffered, by Plaintiffs were and are

4 foreseeable, known, and obvious.

5

199. The City acted with deliberate indifference to the known and obvious harm that

6 would be suffered by Plaintiffs.

7

200. The City did so pursuant to City policy as created and ratified by City policymakers,

8 including Mayor Durkan.

9

THIRD CAUSE OF ACTION – TAKING

10

42 U.S.C. § 1983

11

U.S. Const. amends. V, XIV

12

On behalf of Plaintiffs and the Class

13

201. Plaintiffs incorporate all other allegations in this complaint.

14

202. Plaintiffs and the Class have constitutionally protected property rights to use and

15 enjoy their properties, to exclude others from their properties, and to access their properties via

16 public rights-of-way.

17

203. The City deprived Plaintiffs of those rights by affirmatively creating, assisting,

18 endorsing, and encouraging an indefinite, unpermitted invasion, occupation, and blockade of the

19 public rights-of-way that provide access to Plaintiffs’ private properties, as well as by affirmatively

20 creating, assisting, endorsing, and encouraging the physical invasion of Plaintiffs’ private

21 properties by CHOP participants.

22

204. The City did so pursuant to City policy as created and ratified by City policymakers,

23 including Mayor Durkan.

24

205. Plaintiffs have not received compensation for the deprivation of their property

25 rights.

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1

206. The City’s actions constitute an unlawful taking for private use and/or an unlawful

2 taking for public use without just compensation, which has caused Plaintiffs economic harm,

3 including through a loss of property value, loss of business revenue, and a loss of investment-

4 backed expectations.

5

FOURTH CAUSE OF ACTION – NEGLIGENCE

6

On behalf of Plaintiffs and the Class

7

207. Plaintiffs incorporate all other allegations in this complaint.

8

208. The City’s affirmative acts as described in this complaint placed Plaintiffs and

9 Class members at high and unreasonable risk of foreseeable harm, including but not limited to

10 property damage, lost income and revenue, excessive noise, public safety hazards, vandalism, and

11 decreased or lost access to their homes, properties, and businesses.

12

209. The City had a duty to protect Plaintiffs and Class members from that foreseeable

13 harm.

14

210. The City breached its duty to protect Plaintiffs and Class members from that

15 foreseeable harm.

16

211. The City also owed the Plaintiffs and Class members a duty pursuant to the Seattle

17 Municipal Code, including Chapter 15.52, which required the City to protect Plaintiffs and Class

18 members from unreasonable risks of property damage and other harm and dangers by designating

19 an alternate proposal for those who wished to create and participate in CHOP.

20

212. The City also breached the duty created by the Seattle Municipal Code by not

21 implementing the required procedures, process, and protections.

22

213. The City’s breach of its duties proximately caused harm to Plaintiffs and Class

23 members, including but not limited to property damage, lost income and revenue, exposure to

24 excessive noise and public safety hazards, increased expenses for security, and lost property value.

25

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1

FIFTH CAUSE OF ACTION – NUISANCE

2

RCW 7.48.010, et. seq..

3

On behalf of Plaintiffs and the Class

4

214. Plaintiffs incorporate all other allegations in this complaint.

5

215. As a direct result of the City’s affirmative acts, foot and vehicular traffic on the

6 public streets, sidewalks, and other right of ways surrounding the properties, businesses, and

7 residences of Plaintiffs and Class members were physically blocked and/or impeded.

8

216. The blocking and impeding of foot and vehicular traffic substantially and

9 unreasonably interfered with Plaintiffs’ and Class members’ use and enjoyment of their properties,

10 including by blocking access to those properties, and has caused harm to Plaintiffs, including by

11 reducing property values and resulting in lost revenues.

12

217. The City directly participated in the creation and maintenance of this nuisance,

13 including by providing concrete barriers to be used for this specific purpose to the CHOP

14 participants.

15

218. In addition to blocking public rights-of-way, the City’s actions created and

16 maintained a series of unlawful and/or unreasonable conditions, including excessive noise, public

17 safety hazards, vandalism, and poor health and sanitation conditions.

18

219. These conditions annoyed, injured, and endangered the comfort, repose, health, and

19 safety of Plaintiffs and Class members, and rendered Plaintiffs and Class members insecure in the

20 use of their properties.

21

220. These conditions substantially and unreasonably interfered with Plaintiffs’ and

22 Class members’ use and enjoyment of their properties, including by creating a reasonable fear

23 among Plaintiffs and Class members of using their properties, and caused harm to Plaintiffs and

24 Class members, including by reducing property values, inflicting property damage, and causing

25 lost revenues.

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1

2

VII. JURY DEMAND

3

Plaintiffs demand a trial by jury.

4

VIII. PRAYER FOR RELIEF

5

WHEREFORE, Plaintiffs request the following relief:

6

A. Judgment in favor of Plaintiffs and against Defendant for actual damages in an

7 amount to be proven at trial;

8

B. Prejudgment interest at the maximum rate allowed by law;

9

C. Plaintiffs’ costs of investigation, costs of suit, and reasonable attorneys’ fees; and

10

D. All such other and further monetary, injunctive, and declaratory relief as the Court

11 may deem just and proper.

12

DATED this 30th day of October, 2020.

13

CALFO EAKES LLP

14

By_/s Patty A. Eakes_________________

15

Patricia A. Eakes, WSBA #18888

Angelo J. Calfo, WSBA #27079

16

Tyler S. Weaver, WSBA #29413

Andrew DeCarlow, WSBA #54471

17

Henry Phillips, WSBA #55152

1301 Second Avenue, Suite 2800

18

Seattle, WA 98101

Phone: (206) 407-2200

19

Fax: (206) 407-2224

20

Email: pattye@calfoeakes.com angeloc@calfoeakes.com

21

tylerw@calfoeakes.com

andrewd@calfoeakes.com

22

henryp@calfoeakes.com

23

Attorneys for Plaintiffs

24

25

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 Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 1 of 30

1

2

3

4

5

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

6

AT SEATTLE

7

HUNTERS CAPITAL LLC,

8

NORTHWEST LIQUOR AND WINE LLC, SRJ ENTERPRISES, THE

9

RICHMARK COMPANY, SAGE PHYSICAL THERAPY PLLC,

10

KATHLEEN CAPLES, ONYX HOMEOWNERS ASSOCIATION,

11

WADE BILLER, MADRONA REAL ESTATE SERVICES LLC,

12

MADRONA REAL ESTATE INVESTORS IV LLC, MADRONA

13

REAL ESTATE INVESTORS VI LLC, 12TH AND PIKE

14

ASSOCIATES LLC, REDSIDE PARTNERS LLC, MAGDALENA

C20-983 TSZ

15

SKY, OLIVE ST APARTMENTS LLC, BERGMANS LOCK AND

ORDER

16

KEY SERVICES LLC, MATTHEW PLOSZAJ, ARGENTO LLC,

17

RANCHO BRAVO, INC, SWAY AND CAKE LLC, & SHUFFLE

18

LLC,

Plaintiffs, 19

v. 20

CITY OF SEATTLE, 21

Defendant. 22

23

ORDER - 1

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 2 of 30
1 THIS MATTER comes before the Court on the City of Seattle’s (“City”) Motion
2 to Dismiss and Deny Class Certification (“Motion”), docket no. 11, and its Motion for a
3 Stay of Discovery, docket no. 16. Having reviewed all papers filed in support of, and in
4 opposition to, the motions, the Court enters the following Order.
5 Background
6 On June 8, 2020, with nationwide civil rights protests ongoing, the City “abruptly
7 deserted” the Seattle Police Department’s (“SPD”) East Precinct, located on the corner of
8 Twelfth Avenue and East Pine Street in Seattle’s Capitol Hill neighborhood. First
9 Amended Class Action Complaint (“FAC”) at ¶ 3 (docket no. 9). Almost immediately
10 after the SPD abandoned the East Precinct, protestors declared the area “Free Capitol
11 Hill” to create a “no-cop” zone, and they used large barriers that the City left behind to
12 block off streets within one block of the precinct. Id. at ¶¶ 36–38. As the zone expanded,
13 it first became known as the “Capitol Hill Autonomous Zone,” a.k.a. “CHAZ,” and
14 eventually became known as the “Capitol Hill Organized Protest” or “Capitol Hill
15 Occupying Protest,” a.k.a. “CHOP” (collectively, “CHOP”). Id. at ¶¶ 1, 38. CHOP’s
16 unofficial boundaries stretched north to East Denny Way, east to Thirteenth Avenue,
17 south to East Pike Street, and west to Broadway Avenue, encompassing Cal Anderson
18 Park and 16 city blocks in all. Id. at ¶ 39.
19 CHOP participants claimed the area as their own, which was allegedly governed
20 by a “loose form of governance and justice” and which they secured by physically
21 barricading and patrolling the area’s borders. Id. at ¶¶ 40–41. Many CHOP participants
22
23
ORDER - 2

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 3 of 30

1 set up tents and started living on the streets, sidewalks, and in Cal Anderson Park. Id. at

2 ¶ 42. They allegedly occupied the streets and sidewalks 24 hours per day, hosting

3 speeches, debates, movies, music, and even illegal fireworks shows, causing disturbances

4 and noise pollution well past 10 p.m., and usually into the early hours of the next day. Id.

5 at ¶ 47. Certain CHOP participants served as a “replacement police force” by demanding

6 that business owners release individuals suspected of crimes and conducting their own

7 crime investigations. Id. at ¶ 46. Some CHOP participants were observed carrying guns

8 in broad daylight. Id. at ¶ 48.

9

According to Plaintiffs, the City “entirely handed over” the approximately 7-acre

10 Cal Anderson Park to the CHOP participants. Id. at ¶ 49. The City also allegedly

11 provided CHOP participants with medical equipment, washing/sanitation facilities,

12 portable toilets, nighttime lighting, and other material support. Id. at ¶¶ 49, 179–180.

13 The City further allowed CHOP participants to build makeshift gardens in the park “to

14 grow food for CHOP,” id. at ¶ 52, with the Mayor tweeting her support for the “new

15 community garden popping up in Cal Anderson Park,” id. at ¶ 182(g). Plaintiffs allege

16 that members of the public could not use the park, and if they got too close, CHOP

17 participants threatened them or their property. Id. at ¶ 51. Moreover, the “hundreds of

18 CHOP participants in the park created excessive noise . . . at all hours of the day and

19 night.” Id. at ¶ 53. “Trash, feces, and other refuse built up in the park, affecting the

20 whole area.” Id. The park was allegedly one of the most violent areas of CHOP, and

21 local residents witnessed individuals carrying firearms in the park. Id. As a result of the

22

23
ORDER - 3

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 4 of 30
1 City’s alleged actions, the park “was transformed into a massive tent city for CHOP
2 participants,” id. at ¶ 50, as shown below:
3
4
5
6
7
8
9 [Photos provided at FAC at ¶ 51]
10 On June 11, Mayor Jenny Durkan tweeted that CHOP “is not a lawless wasteland
11 of anarchist insurrection—it is a peaceful expression of our community’s collective grief
12 and their desire to build a better world.” Id. at ¶ 182(a). That same day, during a joint
13 press conference with SPD Chief of Police Carmen Best, the Mayor reiterated that area
14 “is not an armed ANTIFA militia no-go zone” and that “blocks of Seattle in Capitol Hill
15 [have] shut down every summer for everything from Block Party to Pride.” Id. at
16 ¶ 182(d). The Mayor also stated that the area “is not really that much of an operational
17 challenge[,] [b]ut we want to make sure that the businesses and residents feel safe and
18 we’ll continue to move that forward.” Id. At the time, “the City communicated clearly to
19 CHOP participants that they may continue occupying the area . . . because [the City is]
20 trying to do things that are responsible.” Id. at ¶ 181. For her part, the Police Chief
21 stated that “SPD has a responsibility to provide public safety services to the entire East
22
23
ORDER - 4

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 5 of 30

1 precinct and the City” and that the “actions of a small group cannot and should not

2 deprive an entire segment of our community from public-safety services.” Id. at ¶ 57.

3 The Police Chief also stated that “[i]n the first day of the SPD not having access to the

4 [East] precinct, response times for crimes in progress were over fifteen minutes, about

5 three times as long as the average.” Id. The Police Chief said that “[t]he difference in the

6 amount of time could protect someone’s life and prevent a violent attack.” Id.

7

The next day, on June 12, the Mayor was asked during a CNN interview “how

8 long the City would allow CHOP participants to continue,” and the Mayor responded: “I

9 don’t know. We could have the Summer of Love.” Id. at ¶ 181(b). She again stated that

10 CHOP “is more like a block party atmosphere” and that “we will make sure that we can

11 restore this[,]” [b]ut we have block parties and the like in this part of Seattle all the time.

12 It’s known for that.” Id. at ¶ 182(f).

13

On June 16, the City allegedly “reached an informal agreement” with CHOP

14 participants to allow limited one-way access on certain streets within the area. Id. at

15 ¶ 177. As part of that agreement, Plaintiffs allege that “the City actually fortified the rest

16 of CHOP” by providing participants with sturdier concrete barriers. Id. at ¶¶ 174(d), 177.

17 Although CHOP participants allegedly reestablished impediments on those limited-access

18 streets, the City’s response was “apparently to do nothing.” Id. at ¶ 177. The City issued

19 a press release that day stating that “City officials have been on site on Capitol Hill to

20 work [to] meet community needs including hygiene, sanitation and safety,” and that they

21 had met with CHOP “organizers, small businesses, and residents to discuss proposed

22 changes to the protest zone.” Id. at ¶ 174(b). That day, the Mayor also suggested that the

23
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Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 6 of 30

1 City agreed to deploy police to CHOP only for “significant life-safety issues,” such as

2 “an active shooter incident, an assault, a structure fire, significant medical emergency,

3 and other incidents that threaten a person’s life safety.” Id. at ¶ 181(e).1

4

Plaintiffs allege that the City “adopted a policy supporting the CHOP occupation,

5 acting with deliberate indifference toward those suffering harms from it.” Id. at ¶ 174.

6 Plaintiffs also allege that because of the City-provided barriers that CHOP participants

7 used in the streets and sidewalks, local residents could not use public streets, sidewalks,

8 or other rights-of-way to enter their homes or businesses, they could not receive

9 deliveries, and their clients were unable to visit their businesses. Id. at ¶¶ 70–71, 74.

10 Plaintiffs allege that garbage and recycling services could not enter CHOP, forcing them

11 to pile up their refuse. Id. at ¶ 73. In addition, Plaintiffs allege that they did not have

12 “full use” of their property that was normally freely accessible, including their garages, in

13 order to prevent vandalism to their properties. Id. at ¶ 72. Plaintiffs also allege that

14 CHOP participants painted graffiti on most available surfaces in the area. Id. at ¶ 43. If a

15 property owner painted over the graffiti, CHOP participants allegedly replaced the graffiti

16 or threatened business owners if they painted over the graffiti. Examples of the allegedly

17 pervasive graffiti are shown below:

18

19

20

21
1 The Court takes judicial notice of the full press release, see FAC at ¶¶ 181(e) & n.7, available at
22 https://durkan.seattle.gov/2020/06/city-of-seattle-responds-to-the-capitol-hill-organized-protest/.

23

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Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 7 of 30
1
2
3
4
5
6
7 [Photos provided at FAC at ¶¶ 42–43]
8 Plaintiffs allege, “[o]n information and belief,” that the City considered the area
9 from Denny Way to Union Street and Thirteenth Avenue to Broadway Avenue to be a
10 “no response” zone, and it adopted a policy and practice of not entering CHOP except in
11 the case of “the most serious” or “life-threatening crimes”; and even then, SPD’s
12 response was allegedly “weak” and “delayed.” Id. at ¶¶ 55–56; see id. at ¶ 181(e).
13 On June 20, at around 2:20 a.m., two people were shot in CHOP: One victim died
14 before reaching the hospital, and the other victim was admitted with life-threatening
15 injuries. Id. at ¶ 59. According to Plaintiffs, a video posted on Facebook.com shows that
16 medical personnel responded to the first victim about 15 minutes into the video and that
17 police officers started to arrive three minutes later. Id. at ¶ 60. Once the police arrived,
18 the video allegedly shows that CHOP participants “immediately surrounded, yelled at,
19 and pursued” the officers. Id. CHOP participants also allegedly created a human chain
20 to bar any further entry of the police. Id. That video allegedly shows that no government
21 official responded to the other victim, and that victim was transported to the hospital in “a
22
23
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Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 8 of 30

1 plain white cargo van.” Id. The police allegedly did not investigate that crime scene in

2 the aftermath of the shooting, and no suspects have been identified or taken into custody.

3 Id.

4

The next day, on June 21, the Mayor allegedly issued a statement indicating that

5 the “City still had no plans to cease supporting CHOP and that the City was instead

6 acting to work with and preserve CHOP.” Id. at ¶ 182(k). That night, at about 11 p.m.,

7 another victim in CHOP was shot and was transported to the hospital by a private vehicle.

8 Id. at ¶ 61.

9

On June 22, the Mayor and the Police Chief gave a joint press conference, with the

10 Mayor stating that “[t]he cumulative impacts of gatherings and protests and the nighttime

11 atmosphere and violence has led to increasingly difficult circumstances for our

12 businesses and residents.” Id. at ¶ 174(f). Similarly, the Police Chief stated that some

13 CHOP participants were “engaging in shootings, a rape, assaults, burglary, arson, and

14 property destruction.” Id. at ¶ 174(g).

15

On June 29, in early hours, yet another shooting in CHOP occurred, during which

16 more than a dozen shots were fired by “CHOP security” after a white jeep crashed into

17 the barricades. Id. at ¶¶ 63–64. This shooting left a 16-year-old dead and a 14-year-old

18 in critical condition. Id. at ¶ 63.2 According to Plaintiffs, no medical or police personnel

19 responded to the crime scene at that time. Id. at ¶ 65. Instead, one of the victims was

20

21 2 Plaintiffs allege that before CHOP was established, there had been no homicides in the entire Capitol
Hill neighborhood in 2020 and in 2019, there had been only three homicides in the neighborhood. Id. at
22 ¶ 68.

23
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Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 9 of 30

1 transported out of CHOP by private vehicle, and the other was taken “to a meeting point

2 with [the] Seattle Fire Department” and then transported to the hospital. Id. By the time

3 the police reached the crime scene, the police acknowledged that “it was very clear the

4 crime scene had been disturbed” and to date, no suspects have been identified or placed

5 into custody. Id. at ¶ 66. The Police Chief gave a press conference that day, stating that

6 “everybody in city government has been talking about what we can do to have a

7 reasonable response . . . , but we also recognize that a place where we have seen now two

8 murders, multiple people injured, there needs to be some more action for public safety. I

9 think everyone can agree on that.” Id. at ¶ 174(h). That same night, more shots were

10 fired into the building of Plaintiff Onyx Condominium, possibly in connection with the

11 earlier shooting, and at least one bullet came within a foot of a resident asleep in bed. Id.

12 at ¶ 67.

13

On July 1, the City cleared the area occupied by CHOP. Id. at ¶ 184. At a press

14 conference, the Police Chief stated that she was “stunned by the amount of graffiti,

15 garbage, and property destruction” in CHOP and that “we don’t even know how much

16 trauma people were experiencing because of what was happening in that area.” Id. at

17 ¶ 79. She also stated that “what has happened here on these streets over the last two

18 weeks—few weeks, that is—is lawless and it’s brutal and bottom line it is simply

19 unacceptable.” Id. at ¶ 174(j). Plaintiffs allege that the clearing of CHOP was “easily”

20 accomplished and “without violence on either side,” demonstrating that the City could

21 have and should have cleared the area much earlier. Id. at ¶ 184.

22

23
ORDER - 9

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 10 of 30

1

As a result of CHOP’s existence, Plaintiffs allege that they and the proposed class

2 members suffered extensive economic damage and other harm. Id. at ¶ 78. For example:

3

• Plaintiff SRJ Enterprises d/b/a Car Tender alleges that since early June

2020, business revenues had declined by 40% from the months prior, id. at

4

¶ 83, and that its premises were vandalized by CHOP participants,

including permanent damage to a fence, id. at ¶ 85. On June 14, an

5

individual broke into Car Tender’s premises, vandalized and set fire to the

shop, and accosted the owner’s son with a knife and spike. Id. at ¶ 87.

6

Although several 9-1-1 calls were made that night, the police never

responded to the crime scene that evening. Id. at ¶ 89. Car Tender’s owner

7

and son apprehended the intruder, but they ultimately handed him over to

an “angry mob of CHOP participants” who demanded that they release the

8

intruder. Id. at ¶ 90.

9

• Plaintiff The Richmark Company d/b/a Richmark Label alleges that it

incurred costs related to shipping delays and cancellations and suffered

10

property damage because of CHOP participants. Id. at ¶¶ 94, 96.

Richmark Label also alleges that it is not receiving any “of the usual rental

11

income it typically receives from the parking spaces.” Id. at ¶ 97.

12

• Plaintiff Northwest Liquor and Wine LLC alleges that its average sales

were down approximately 70% in June 2020. Id. at ¶ 101.

13 • Plaintiff Sage Physical Therapy PLLC alleges that approximately 60% of

14

its patients cancelled their appointments after CHOP was established. Id. at

¶ 109. Sage also alleges that the internet cable in its building was cut, but

15

the technician could not access the building due to CHOP barriers—

meaning Sage did not have access to its security cameras during this time

16

period. Id. at ¶ 108.

17

• Plaintiff Magdalena Sky d/b/a Tattoos and Fortune alleges that CHOP’s barricades and encampments blocked vehicle and foot access to its studio,

18

causing it to close its doors and preventing it from generating any revenue. Id. at ¶ 113.

19

• Plaintiff Bergman’s Lock and Key Services LLC alleges that it was forced

to shorten its hours and eventually board up its premises due to graffiti and

20

vandalism by CHOP participants. Id. at ¶ 117. In June 2020, Lock and

Key’s revenues had allegedly declined by 60% due to CHOP. Id. at ¶ 118. 21

• Plaintiff Matthew Ploszaj alleges that his apartment was broken into four

22

times during CHOP’s existence; each time, Ploszaj contacted the police, but

23

ORDER - 10

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 11 of 30

1

the police never responded. Id. at ¶ 124. On one occasion, an officer told

Ploszaj that they could not respond to the building because of its location

2

within CHOP and asked Ploszaj to instead meet him eight blocks from his

apartment. Id. at ¶ 125.

3 • Plaintiff Argento LLC allegedly called 9-1-1 four times regarding incidents

4

involving CHOP participants, but was told that the police would not

respond to his area unless there was a violent incident. Id. at ¶ 132.

5 • Plaintiff Onyx Homeowners Association alleges that it and its residents

6

called 9-1-1 to report graffiti and other acts of vandalism by CHOP

participants, but they received no response or direction from the City. Id. at

7

¶ 135. On June 29, shots were fired into the Onyx Condominium building,

with at least one bullet coming within a foot of a resident asleep in bed. Id.

8

at ¶ 140.

9

• Madrona Real Estate Plaintiffs allege that SPD refused to help protect its

property and at considerable expense, it hired increased private security to

10

protect residents and property. Id. at ¶ 146. On June 23, Madrona Real

Estate called the police to assist it in removing trespassers from a property

11

located immediately outside of CHOP’s boundaries, but an officer

responded that they “are not allowed to come within two blocks of CHOP.”

12

Id. at ¶ 147. In addition, Madrona Real Estate’s parking revenue was only

“a small fraction of the average” in June 2020. Id. at ¶ 151.

13

• Plaintiff Hunters Capital LLC alleges that its tenants, who have been

14

sexually harassed and threatened, started to leave because of CHOP, causing it considerable losses. Id. at ¶¶ 156–57, 159.

15

• Plaintiff Olive ST Apartments LLC similarly alleged that tenants have

moved out because of the nearby presence of CHOP and that it has been

16

unable to attract new renters to the area. Id. at ¶ 164.

17

• Plaintiff Rancho Bravo, Inc. alleges that CHOP participants, without

Rancho Bravo’s permission, created a “medical tent” in the outside seating

18

areas in front of its restaurant; and CHOP participants allegedly maintained

various unpermitted food dispensaries and stores on public property

19

adjacent to its premises. Id. at ¶¶ 31, 44–45, 168. Rancho Bravo’s business

dropped precipitously during the occupancy, leading to significant

20

economic losses. Id. at ¶ 170.

21

After several of the Plaintiffs unsuccessfully attempted to contact the City and the

22 Mayor’s office for assistance, id. at ¶¶ 92, 100, 111, 121, 139, 152, 155, 165, they filed

23

ORDER - 11

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 12 of 30

1 this class action against the City. Complaint (docket no. 1). On July 10, 2020, Plaintiffs

2 filed the FAC, docket no. 9, asserting four causes of action under 42 U.S.C. § 1983 for

3 violations of (1) procedural due process, (2) substantive due process, (3) unlawful taking,

4 and (4) equal protection.3 The City now moves to dismiss Plaintiffs’ claims and to deny

5 class certification, docket no. 11.

6 Discussion

7

A. Rule 12(b)(6) Standard

8

To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a

9 complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

10 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937,

11 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.

12 Ct. 1955, 167 L. Ed. 2d 929 (2007)). “A claim has facial plausibility when the plaintiff

13 pleads factual content that allows the court to draw the reasonable inference that the

14 defendant is liable for the misconduct alleged.” Id.

15

B. Municipal Liability

16

“Local governing bodies . . . can be sued directly under [42 U.S.C. § 1983] for

17 monetary, declaratory, or injunctive relief where . . . the action that is alleged to be

18 unconstitutional implements or executes a policy statement, ordinance, regulation, or

19 decision officially adopted and promulgated by that body’s officers.” Monell v. Dep’t of

20

21
3 The third and fourth causes of action are mislabeled in the FAC as the “fourth” and “fifth” causes of
22 action. See FAC (docket no. 9 at 61–62).

23
ORDER - 12

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 13 of 30

1 Soc. Servs., 436 U.S. 658, 690, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). To prevail on a

2 municipal liability claim, a plaintiff must show that the city “had a deliberate policy,

3 custom, or practice that was the ‘moving force’ behind the constitutional violation he

4 suffered.” Galen v. County of Los Angeles, 477 F.3d 652, 667 (9th Cir. 2007) (quoting

5 Monell, 436 U.S. at 694–95); see also Harper v. City of Los Angeles, 533 F.3d 1010,

6 1026 (9th Cir. 2008) (“To meet this causation requirement, the plaintiff must establish

7 both causation-in-fact and proximate causation.”). “The requisite causal connection can

8 be established not only by some kind of direct personal participation in the deprivation,

9 but also by setting in motion a series of acts by others which the [government] actor

10 knows or reasonably should know would cause others to inflict the constitutional injury.”

11 Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012) (quoting Johnson v. Duffy,

12 588 F.2d 740, 743–44 (9th Cir. 1978)). A municipality’s “omi[ssion] to perform an act

13 which [it] is legally required to do” may be sufficient to show that it caused a plaintiff to

14 suffer a deprivation of a constitutional right under § 1983. Id. at 915, 940.

15

Plaintiffs allege facts indicating that the City and the Mayor officially supported

16 the establishment of an autonomous zone within CHOP’s boundaries, FAC at ¶¶ 174,

17 177, 181–82; that the City provided concrete barriers, medical supplies,

18 washing/sanitation facilities, portable toilets, lighting, and other material support to

19 CHOP participants, including handing over Cal Anderson Park to them, id. at ¶¶ 37–38,

20 49–50, 52, 167, 179(d); and that the City adopted a “no response” policy and practice

21 within CHOP, refusing to send police officers into CHOP unless the 9-1-1 caller reported

22 “significant life-safety issues,” id. at ¶¶ 55–56, 89, 124–25, 132, 135, 146–47, 181(e).

23
ORDER - 13

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 14 of 30

1 Plaintiffs further allege that as a result of the City’s CHOP-related policies and practices,

2 their properties were blocked off from access to public streets and rights-of-way, they

3 were otherwise unable to use and enjoy their properties, and they were deprived of basic

4 public-safety services. Id. at ¶¶ 7–8, 50, 81, 202.

5

Plaintiffs plausibly allege that “[t]he City’s endorsement and recognition of CHOP

6 went so far that SPD adopted a policy and practice of not entering the area except in the

7 case of life-threatening crimes,” thereby creating a “no response” zone within the area.

8 FAC at ¶¶ 55–56. Clearly, the City’s conduct, as alleged by the FAC, may have been the

9 “moving force” behind the alleged constitutional violations, see Galen, 477 F.3d at 667,

10 and the causal link between the City’s actions and the harm to Plaintiffs would have been

11 foreseeable. See, e.g., FAC at ¶¶ 57, 174, 182; see Lacey, 963 F.3d at 915 (concluding

12 that causation may be established by showing that the government’s acts or omissions

13 “set[] into motion a series of acts by others which the [government] knows or reasonably

14 should know would cause others to inflict the constitutional injury”). Plaintiffs’

15 allegations, if proven, would support a claim of municipal liability.

16

C. Due Process Violations

17

1. Procedural Due Process Violation — First Cause of Action

18

The Fourteenth Amendment provides: “[N]or shall any State deprive any person

19 of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

20 To prevail on a procedural due process claim, a § 1983 plaintiff must establish “(1) a

21 liberty or property interest protected by the Constitution; (2) a deprivation of the interest

22 by the government; and (3) lack of process.” Portman v. County of Santa Clara, 995

23
ORDER - 14

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 15 of 30

1 F.2d 898, 904 (9th Cir. 1993). “Property interests, of course, are not created by the

2 Constitution.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701,

3 33 L. Ed. 2d 548 (1972). “Rather they are created and their dimensions are defined by

4 existing rules or understandings that stem from an independent source such as state law—

5 rules or understandings that secure certain benefits and that support claims of entitlement

6 to those benefits.” Id. If a plaintiff is entitled to such benefits, even certain “temporary

7 or partial impairments of property rights . . . are sufficient to merit due process

8 protection.” Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105, 115 L. Ed. 2d 1 (1991).

9

Plaintiffs plausibly allege that they had a protected property interest in the full use

10 and enjoyment of their property and that the City’s affirmative actions in support of

11 CHOP caused Plaintiffs to suffer a temporary deprivation of those interests. FAC at

12 ¶¶ 196–97. Specifically, Plaintiffs allege that from June 8 to July 1, 2020, CHOP

13 participants used City-provided barriers, with the City’s approval, to block access from

14 their properties to streets, sidewalks, and other public rights-of-way. Id. at ¶¶ 70, 177,

15 211–13. Many of the Plaintiffs also allege that because of CHOP’s existence, and the

16 rampant crime and vandalism that ensued, they were deprived of all (or nearly all)

17 economic use of their properties. Id. at ¶¶ 97, 101, 109, 113–14, 118. At least one

18 Plaintiff alleges that CHOP participants physically invaded its premises by setting up,

19 without permission, a “makeshift medical tent,” id. at ¶¶ 31, 45, 168, to which the City

20 provided beds and medical equipment, id. at ¶ 179(d). Those allegations are sufficient to

21 support Plaintiffs’ claim that they were deprived of state-created property interests. See

22 Guimont v. Clarke, 121 Wn.2d 586, 597–98 & n.3, 854 P.2d 1 (1993) (en banc),

23
ORDER - 15

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 16 of 30

1 abrogated on other grounds by Yim v. City of Seattle, 194 Wn.2d 682, 451 P.3d 694

2 (2019) (holding that “a regulation that compels a property owner to suffer a ‘physical

3 invasion’ or ‘occupation’ of his or her property is compensable no matter how weighty

4 the public purpose behind it or how minute the intrusion” and regardless of whether the

5 invasion was “temporary or permanent”); Keiffer v. King County, 89 Wn.2d 369, 372,

6 572 P.2d 408 (1977) (en banc) (concluding “[t]he right of access of an abutting property

7 owner to a public right-of-way is a property right” under the Washington State

8 Constitution).4

9

Plaintiffs further allege that “the City provided Plaintiffs with no notice or

10 opportunity to be heard before or after depriving Plaintiffs of the freedom of movement,

11 the right to access their properties, the right to use their properties, and the right to

12 exclude others from their properties.” FAC at ¶ 200. “[I]n the absence of a sufficient

13 countervailing justification for the” City’s actions, Boddie v. Connecticut, 401 U.S. 371,

14 380–81, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971), the Court concludes that Plaintiffs

15 plausibly asserted a procedural due process violation.

16

2. Substantive Due Process Violation — Second Cause of Action

17

Substantive due process prohibits “certain arbitrary, wrongful government actions

18 ‘regardless of the fairness of the procedures used to implement them.’” Zinermon v.

19

20
4 Because the Court concludes that Plaintiffs plausibly alleged deprivations of property interests, it is
21 unnecessary to address Plaintiffs’ alternative arguments that the City “effectively re-zoned the area in and
around CHOP” or deprived them of a “fundamental right to free movement.” Response (docket no. 12 at
22 17–18).

23
ORDER - 16

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 17 of 30

1 Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 108 L. Ed. 2d 100 (1990) (citation omitted).

2 “As a general matter, [the U.S. Supreme Court] has always been reluctant to expand the

3 concept of substantive due process because guideposts for responsible decisionmaking in

4 this unchartered area are scarce and open-ended.” Collins v. City of Harker Heights, 503

5 U.S. 115, 125, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992). Accordingly, the Ninth Circuit

6 has cautioned that “[w]here a particular amendment provides an explicit textual source of

7 constitutional protection against a particular sort of government behavior, that

8 Amendment, not the more generalized notion of substantive due process, must be the

9 guide for analyzing these claims.” Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir.

10 1996), overruled in part on other grounds as recognized in Crown Point Dev., Inc. v. City

11 of Sun Valley, 506 F.3d 851, 852 (9th Cir. 2007) (internal quotation marks and citation

12 omitted); see, e.g., Esplanade Props., LLC v. City of Seattle, 307 F.3d 978, 982–83 (9th

13 Cir. 2002) (affirming dismissal of plaintiffs’ substantive due process claim because the

14 Takings Clause provided an explicit textual source of constitutional protection against

15 private takings and was therefore the guide in reviewing the claim).

16

Also, “[a]s a general matter, . . . a State’s failure to protect an individual against

17 private violence simply does not constitute a violation of the Due Process Clause.”

18 DeShaney v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 197, 109 S. Ct. 998, 103

19 L. Ed. 2d 249 (1989). There are, however, certain exceptions to this general rule. For

20 example, in DeShaney, the Court held that where the local government affirmatively acts

21 to “restrain[] the individual’s freedom to act on his own behalf—through incarceration,

22 institutionalization, or other similar restraint of personal liberty,” such actions may give

23
ORDER - 17

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 18 of 30

1 rise to a substantive due process claim. Id. at 200. Likewise, the Ninth Circuit has held

2 that a local government may violate substantive due process if it “‘affirmatively places [a

3 plaintiff] . . . in danger by acting with ‘deliberate indifference’ to a ‘known or obvious

4 danger.’” Martinez v. City of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (quoting

5 Patel v. Kent Sch. Dist., 648 F.3d 965, 971–72 (9th Cir. 2011)). To prevail on such a

6 theory, known as the “state-created danger doctrine,” a plaintiff must show that (1) “the

7 officers’ affirmative actions created or exposed her to an actual, particularized danger

8 that she would not otherwise have faced,” (2) “the injury . . . suffered was foreseeable,”

9 and (3) “the officers were deliberately indifferent to the known danger.” Id.

10

In this case, the Court first considers whether the Takings Clause “provides an

11 explicit textual source of constitutional protection against” the City’s alleged conduct.

12 Armendariz, 75 F.3d at 1319. According to Plaintiffs, the City’s “assistance,

13 endorsements, and encouragements of CHOP greatly increased the likelihood of property

14 damage, . . . personal injury, . . . and other damages to Plaintiffs.” FAC at ¶ 206. That is,

15 Plaintiffs allege that in addition to being deprived of certain property interests, they were

16 also deprived of at least one liberty interest, i.e., the right “to be protected from state-

17 created dangers.” Id. at ¶¶ 205–06. Recognizing that Plaintiffs’ substantive due process

18 claim rests on deprivations of both property and liberty interests, the Court concludes that

19 the Plaintiffs’ takings claim does not subsume or preempt their substantive due process

20 claim. See Crown Point Dev., 506 F.3d at 852–53.

21

Next, turning to whether Plaintiffs have stated a substantive due process claim,

22 Plaintiffs allege that the City’s affirmative actions exposed them to actual, particularized

23
ORDER - 18

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 19 of 30

1 harm that they otherwise would not have faced. Specifically, Plaintiffs allege that on or

2 around June 16, 2020, the City adopted in a “no response” strategy with respect to

3 CHOP, after negotiating with CHOP participants. FAC at ¶¶ 56, 177, 181(c)–(e). This

4 strategy purportedly resulted in police and other emergency personnel refusing to respond

5 to 9-1-1 calls made from within or near CHOP. Id. at ¶¶ 98, 132, 147. Some Plaintiffs

6 allegedly called 9-1-1 to report incidents involving personal injuries or threats of personal

7 injury, but they were unable to secure assistance. Id. at ¶¶ 87–89, 126, 135, 140, 143.

8 Plaintiffs likewise allege that the City provided concrete barriers to CHOP participants

9 and allowed them to seal off Plaintiffs’ neighborhood from the rest of the city. Id. at

10 ¶¶ 7, 68, 174(d). Finally, Plaintiffs allege facts suggesting that their injuries were

11 foreseeable, and that the City was deliberately indifferent to this known danger. See id. at

12 ¶¶ 57, 62, 174(h), 182(k).

13

The Court concludes that these allegations are sufficient to state a substantive due

14 process claim under the state-created danger exception. Plaintiffs plausibly allege that

15 the City’s actions—encouraging CHOP participants to wall off the area and agreeing to a

16 “no response” zone within and near CHOP’s borders—foreseeably placed Plaintiffs in a

17 worse position than they would have been in absent any City intervention whatsoever.5

18 Their allegations are also sufficient to show that the City acted with deliberate

19

20 5 The City’s reliance on Johnson v. City of Seattle, 474 F.3d 634 (9th Cir. 2007) is unpersuasive. In
Johnson, the Ninth Circuit concluded that the City’s “decision to switch from a more aggressive operation

21

plan to a more passive one was not affirmative conduct that placed [the plaintiffs] in danger, because it did not place them in any worse position than they would have been in had the police not come up with

any operation plan whatsoever.” Id. at 641. Here, however, Plaintiffs have plausibly alleged that they

22 would have been better off had the City not intervened at all.

23
ORDER - 19

Case 2:20-cv-00983-TSZ Document 23 Filed 10/16/20 Page 20 of 30

1 indifference to that danger. See Hernandez v. City of San Jose, 897 F.3d 1125, 1138–39

2 (9th Cir. 2018) (allegations that officers “shepherded [plaintiffs] into a violent crowd of

3 protestors and actively prevented them from reaching safety . . . even though [the

4 officers] knew the mob had attacked” others earlier, were sufficient to state a substantive

5 due process claim).

6

D. Unlawful Taking — Third Cause of Action

7

The Takings Clause, which applies to local governments through the Fourteenth

8 Amendment, provides: “[N]or shall private property be taken for public use, without just

9 compensation.” U.S. Const. amend. V; see Webb’s Fabulous Pharmacies, Inc. v.

10 Beckwith, 449 U.S. 155, 160, 101 S. Ct. 446, 66 L. Ed. 2d 358 (1980). To establish a

11 violation of the Takings Clause, a plaintiff must show that “‘an independent source such

12 as state law’ . . . define[s] the range of interests that qualify for protection as ‘property’

13 under the Fifth and Fourteenth Amendments.” Lucas v. S.C. Coastal Council, 505 U.S.

14 1003, 1030, 112 S. Ct. 2886, 120 L. Ed. 2d 798 (1992) (quoting Roth, 408 U.S. at 577);

15 see Vandevere v. Lloyd, 644 F.3d 957, 963 (9th Cir. 2011). Once a state-created property

16 right is established, the Court must then determine “whether [that] property right has been

17 abridged improperly (taken without just compensation) or whether a plaintiff has given

18 up the right to assert such a claim,” which are “question[s] of federal law.” Vandevere,

19 644 F.3d at 963–64.

20

Under Washington law, “[t]he right of access of an abutting property owner to a

21 public right-of-way is a property right which if taken or damaged for a public use

22 requires compensation.” Keiffer, 89 Wn.2d at 372. Washington courts generally

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1 distinguish between an unlawful taking, which “is a permanent (or recurring) invasion of

2 private property,” and a “temporary interference with a private property right, which is

3 not continuous nor likely to be reoccurring,” N. Pac. Ry. Co. v. Sunnyside Valley

4 Irrigation Dist., 85 Wn.2d 920, 924, 540 P.2d 1387 (1975) (citations omitted). This

5 distinction loses force, however, where the government “compels a property owner to

6 suffer a ‘physical invasion’ or ‘occupation’ of his or her property.” Guimont, 121 Wn.2d

7 at 597–98 & n.3; see also Lucas, 505 U.S. at 1030 n.17; id. at 1033 (Kennedy, J.,

8 concurring).

9

Both Washington and federal courts “are reluctant to find that a compensable

10 taking occurred where the government temporarily used or destroyed property in times of

11 emergency.” Citoli v. City of Seattle, 115 Wn. App. 459, 489, 61 P.3d 1165, 1169 (2002)

12 (citing Nat’l Bd. of Young Men’s Christian Ass’ns v. United States (YMCA), 395 U.S. 85,

13 89 S. Ct. 1511, 23 L.Ed.2d 117 (1969)). For example, in Monarch Ins. Co. v. District of

14 Columbia, 353 F. Supp. 1249 (D.D.C. 1973), aff’d sub nom Aetna Ins. Co. v. United

15 States, 497 F.2d 683 (D.C. Cir. 1974), the district court dismissed the plaintiff’s takings

16 claim based on allegations that the government’s “riot control program . . . intentionally

17 sacrificed [the plaintiff’s] private property.” Id. at 1255–56. There, the court reasoned

18 that “judgments about where . . . police should be stationed and what degree of force

19 should be exerted to provide adequate protection . . . in riot control situations . . . are best

20 left to officials directly responsible to the electorate.” Id. at 1256 (quoting YMCA, 395

21 U.S. at 95 (Harlan, J., concurring)).

22

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1

Plaintiffs allege that from June 8 to July 1, 2020, the City allowed and encouraged

2 CHOP participants to block access from Plaintiffs’ properties to streets and other public

3 rights-of-way, FAC at ¶¶ 70, 177, 211–13, resulting in the deprivation of all or nearly all

4 economic use of their properties, id. at ¶¶ 97, 101, 109, 113–14, 118. Those allegations

5 support Plaintiffs’ assertion that the City’s policies and practices related to CHOP

6 deprived them of protected property interests, albeit temporarily, without just

7 compensation. See Keiffer, 89 Wn.2d at 372; Guimont, 121 Wn.2d at 597–98 & n.3; see

8 also City of Seattle v. McCoy, 101 Wn. App. 815, 829, 4 P.3d 159 (2000) (“[T]emporary

9 takings are subject to the same categorical treatment as permanent takings where a

10 regulation denies all use of the property.”) (internal quotations and citation omitted);

11 Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435–40, 102 S. Ct. 3164,

12 73 L. Ed. 2d 868 (1982) (holding that a New York law requiring the plaintiff and other

13 landlords to allow a third party to place cable facilities in their buildings constituted a

14 taking).6

15

The Court acknowledges that judgments about where and to what degree the

16 police should be deployed in these types of emergency situations are best left to the City.

17 See Monarch Ins., 353 F. Supp. at 1255–56. Under Plaintiffs’ theory of the case,

18

19 6 Even if certain Plaintiffs alleged only partial, temporary interference with property rights, which do not

amount to “categorical takings,” see Lucas, 505 U.S. at 1015; McCoy, 101 Wn. App. at 829, those

20 Plaintiffs may still proceed under a “regulatory takings” theory, which necessarily requires “ad hoc,
factual inquires.” Penn Cent. Transp. Co. v. New York City, 438 U.S. 104, 124, 98 S. Ct. 2646, 57 L. Ed.

21

2d 631 (1978); see Bridge Aina Le‘a, LLC v. Land Use Comm., 950 F.3d 610, 626 (9th Cir. 2020) (“When a regulation places limitations on land that fall short of eliminating all economically beneficial

use, a taking nonetheless may have occurred, depending on the Penn Central framework.”) (internal

22 quotations and citation omitted).

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1 however, the City is not liable under § 1983 simply because its response to the creation of

2 CHOP was “too little, too late,” id. at 1255, or because the City failed to prevent CHOP

3 participants from physically invading their properties, cf. Citoli, 115 Wn. App. at 488.7

4 Rather, Plaintiffs plausibly assert that the City’s endorsement of, and the provision of

5 material support to, CHOP set in motion a series of acts by certain CHOP participants,

6 who the City knew or reasonably should have known would deprive Plaintiffs of

7 protected property interests. FAC at ¶¶ 174, 182, 212–13. These allegations support the

8 claim that the City’s conduct was “causally related to [the] private misconduct” and it

9 was “sufficiently direct and substantial to require compensation under the Fifth

10 Amendment.” YMCA, 395 U.S. at 93.

11

E. Equal Protection Violation — Fourth Cause of Action

12

“[N]or shall any State . . . deny to any person within its jurisdiction the equal

13 protection of the laws.” U.S. Const. amend. XIV, § 1. “‘Equal protection’ . . .

14 emphasizes disparity in treatment by a State between classes of individuals whose

15 situations are arguably indistinguishable.” Ross v. Moffit, 417 U.S. 600, 609, 94 S. Ct.

16 2437, 41 L. Ed. 2d 341 (1974). Accordingly, the first step in analyzing an equal

17 protection challenge “is to identify the state’s classification of groups,” i.e., the plaintiff’s

18 “classified group” and the “control group . . . composed of individuals who are similarly

19 situated to those in the classified group in respects that are relevant to the state’s

20

21
7 Unlike Plaintiffs in this case, the plaintiff in Citoli failed to allege a protected property interest. 115 Wn.
22 App. at 489.

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1 challenged policy.” Gallinger v. Becerra, 898 F.3d 1012, 1016 (9th Cir. 2018) (citation

2 omitted). “The groups must be comprised of similarly situated persons so that the factor

3 motivating the alleged discrimination can be identified.” Thornton v. City of St. Helens,

4 425 F.3d 1158, 1167 (9th Cir. 2005). “An equal protection claim will not lie by

5 ‘conflating all persons not injured into a preferred class receiving better treatment’ than

6 the plaintiff.” Id. (citation omitted). As the court noted in Squaw Valley Dev. Co. v.

7 Goldberg, 375 F.3d 936 (9th Cir. 2004), overruled on other grounds by Lingle v.

8 Chevron U.S.A. Inc., 544 U.S. 528, 125 S. Ct. 2074, 161 L. Ed. 2d 876 (2005), in any

9 equal protection analysis, a plaintiff must compare “apples to apples.” Id. at 945; see

10 also Ruston v. Town Bd. for the Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010)

11 (“Class-of-one plaintiffs must show an extremely high degree of similarity between

12 themselves and the persons to whom they compare themselves.”); accord Hood Canal

13 Sand & Gravel, LLC v. Brady, 129 F. Supp. 3d 1118, 1125 (W.D. Wash. 2015).8

14

Plaintiffs appear to identify two classifications of groups that were purportedly

15 treated differently in violation of the Equal Protection Clause: (1) “areas occupied by

16 CHOP versus other areas of the City,” FAC at ¶¶ 220–21; and (2) Plaintiffs versus CHOP

17 participants, id. at ¶¶ 222, 224. With respect to the first grouping, Plaintiffs have failed to

18 plausibly allege that individuals living in “areas occupied by CHOP” are similarly

19 situated to individuals living in “other areas of the City.” Although Plaintiffs plausibly

20

21
8 The City characterizes Plaintiffs’ claim as a “class of one” equal protection claim, and Plaintiffs
22 acknowledge that they “pled this theory.” Response (docket no. 12 at 24 & n.6); see FAC at ¶ 225.

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1 allege that the City treated the two groups differently after CHOP was created, FAC at

2 ¶¶ 226–27, they do not allege any facts suggesting that they are similarly situated to the

3 control group, e.g., that the other areas in the city were also occupied by a large group of

4 organizers. To the contrary, Plaintiffs’ allegations emphasize the unprecedented nature

5 of CHOP’s creation—that after SPD abandoned the East Precinct, organizers “who

6 gathered on Capitol Hill” “form[ed]” or “created” CHOP. Id. at ¶¶ 1–2, 35–37. By

7 failing to allege facts showing that other areas of the City were similarly situated to areas

8 occupied by CHOP, Plaintiffs merely conflate all persons not injured outside of CHOP

9 into a preferred class. Thornton, 425 F.3d at 1167; see Ruston, 610 F.3d at 60

10 (concluding that none of the alleged control-group properties were similar to plaintiff’s

11 proposed development, “let alone so similar that no rational person could see them as

12 different”).

13

The second grouping asserted by Plaintiffs—Plaintiffs versus CHOP

14 participants—suffers from similar defects. Plaintiffs argue that the “bias ‘in favor’” of

15 CHOP participants, based on the City’s preference for their viewpoints, violates the

16 Equal Protection Clause “because such favoritism necessarily entails disfavor to others.”

17 Response (docket no. 12 at 26); see FAC at ¶¶ 221–22. The only case that Plaintiffs cite

18 in support of that novel argument is Elliot-Park v. Manglona, 592 F.3d 1003 (9th Cir.

19 2010); but in that case, the Ninth Circuit concluded that the plaintiff plausibly asserted an

20 equal protection claim against police officers based on allegations that her perpetrator

21 “was given a pass by the police because of the officers’ alleged racial bias not only in

22 favor of [her perpetrator] as a Micronesian, but also against her as a Korean.” Id. at 1006

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1 (emphasis added). Put simply, an allegation that the government favors a certain class or

2 viewpoint, standing alone, is insufficient to show that the government necessarily

3 disfavors the plaintiff’s alleged class or viewpoint for purposes of equal protection

4 analysis. See Gallinger, 898 F.3d at 1021 (“Accommodating one interest group is not

5 equivalent to intentionally harming another.”).

6

Not only do Plaintiffs fail to allege that they hold a viewpoint that is disfavored by

7 the City, they also allege that they “support the efforts of those like Black Lives Matter

8 who . . . are bringing issues such as systemic racism and unfair violence against African

9 Americans by police to the forefront of the national consciousness” and that they

10 “support the free-speech rights of many of those who gathered on Capitol Hill to form

11 what has been called . . . ‘CHOP.’” FAC at ¶¶ 1, 12. According to the Plaintiffs, that

12 viewpoint is also favored by the City. Id. at ¶¶ 10, 218, 221–24.

13

Even assuming that the asserted classes are similarly situated, the City’s actions

14 are “presumed to be valid and will be sustained if the classification . . . is rationally

15 related to a legitimate state interest.” Gallinger, 898 F.3d at 1017; FCC v. Beach

16 Comms., Inc., 508 U.S. 307, 313, 113 S. Ct. 2096, 124 L. Ed. 2d 211 (1993) (“In areas of

17 social and economic policy, a statutory classification that neither proceeds along suspect

18 lines nor infringes fundamental constitutional rights must be upheld against [an] equal

19 protection challenge if there is any reasonably conceivable state of facts that could

20 provide a rational basis for the classification.”). Plaintiffs argue that the Court should

21 apply heightened scrutiny in this case because the City’s alleged actions “affected the

22 fundamental right of free speech.” Response (docket no. 12 at 26–27). However,

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1 Plaintiffs do not plausibly allege that the City disfavored the Plaintiffs’ viewpoint or

2 treated them differently on that basis. The Court concludes that rational-basis review

3 applies to this case, as currently pleaded. See Beach Comms., 508 U.S. at 313; see also

4 Squaw Valley, 375 F.3d at 944.9

5

Applying rational-basis review, Plaintiff’s allegations are insufficient to overcome

6 the presumption that the City’s different treatment of CHOP residents was rational

7 because there is simply no indication that other areas of the city were being “overrun” or

8 “occupied” by a large group of protestors. See FAC at ¶¶ 2–5; Gallinger, 898 F.3d at

9 1018–20 (refusing “to second-guess” the government’s determination that its unequal

10 treatment advanced legitimate governmental interests, including the protection of retired

11 peace officers and public safety, and affirming the district court’s dismissal of the equal

12 protection claim).

13

Absent any allegations indicating that the City intentionally treated Plaintiffs

14 differently than similarly situated individuals, and without any rational basis for doing so,

15 the Court concludes that Plaintiffs did not plead sufficient facts to support their equal

16 protection claim. The claim is dismissed without prejudice. See Lopez v. Smith, 203 F.3d

17 1122, 1130 (9th Cir. 2000) (concluding that “a district court should grant leave to amend

18 even if no request to amend the pleading was made, unless it determines that the pleading

19 could not possibly be cured by the allegation of other facts”) (citation omitted).

20

21
9 Even if the Court were to apply heightened scrutiny, Plaintiffs’ conclusory allegation that other groups
22 were similarly situated are nonetheless insufficient to support their equal protection challenge.

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1

F. Class Certification

2

In determining whether discovery is necessary to establish the existence of a class

3 under Federal Rule of Civil Procedure 23, “the better and more advisable practice for a

4 District Court to follow is to afford the litigants an opportunity to present evidence as to

5 whether a class action was maintainable.” Doninger v. Pac. Nw. Bell, Inc., 564 F.2d

6 1304, 1313 (9th Cir. 1977). The federal authority addressing this issue “stand[s] for the

7 unremarkable position that often the pleadings alone will not resolve the question of class

8 certification and that some discovery will be warranted.” Vinole v. Countrywide Home

9 Loans, Inc., 571 F.3d 935, 942 & n.6 (9th Cir. 2009); cf. Wal-Mart Stores, Inc. v. Dukes,

10 564 U.S. 338, 350, 131 S. Ct. 2541, 180 L. Ed. 2d 374 (2011) (concluding that “Rule 23

11 does not set forth a mere pleading standard” and that “[a] party seeking class

12 certification . . . must be prepared to prove that there are in fact . . . common questions of

13 law or fact, etc.”). A district court may deny class certification, without first providing

14 proposed class members an opportunity to conduct discovery, only under limited

15 circumstances—where, for example, they “fail to make even a prima facie showing of

16 Rule 23’s prerequisites.” See Doninger, 564 F.2d at 1313.

17

The Court concludes that it would be improper to decide class certification on the

18 pleadings. It is entirely plausible that Plaintiffs, after discovery, could present evidence

19 consistent with the allegations in the FAC to make a prima facie showing of Rule 23’s

20 prerequisites, including the commonality requirement and the predominance requirement.

21 Fed. R. Civ. P. 23(a)(2), (b)(3). For example, Plaintiffs’ evidence could plausibly show

22 that the City adopted a policy and practice of endorsing CHOP, or that the City knew or

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1 should have known that its actions would result in harm to Plaintiffs and the proposed

2 class members. FAC at ¶ 189; see also id. at ¶¶ 174, 182; see Dukes, 564 U.S. at 350

3 (requiring that class members’ claims “depend upon a common contention” and that the

4 common contention be “capable of classwide resolution—which means that

5 determination of its truth or falsity will resolve an issue that is central to the validity of

6 each one of the claims in one stroke”). The Court will therefore afford Plaintiffs an

7 opportunity to discover evidence to demonstrate whether there are in fact common

8 questions that predominate over individualized inquires. Cf. Doninger, 564 F.2d at 1313;

9 Vinole, 571 F.3d at 942, 948 (concluding that the district court did not abuse discretion in

10 granting defendant’s motion to deny class certification where plaintiffs “were provided

11 with adequate time in which to conduct discovery related to the question of class

12 certification”). At this stage in the proceedings, the City’s motion to deny class

13 certification is DENIED without prejudice pending discovery.

14 Conclusion

15

For the foregoing reasons, the Court ORDERS:

16

(1) The motion to dismiss the fourth cause of action based on equal protection

17 is GRANTED. This claim is dismissed without prejudice. Plaintiffs may electronically

18 file a second amended complaint via the Case Management and Electronic Case Filing

19 (“CM/ECF”) system within fourteen (14) days of the date of this Order.

20

(2) Except as provided in paragraph (1), the motion to dismiss all other causes

21 of action is DENIED.

22

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1

(3) The motion to deny class certification is DENIED without prejudice

2 pending discovery for the reasons stated in this Order;

3

(4) The motion to stay discovery, docket no. 16, is now DENIED as moot; and

4

(5) The Clerk is directed to send a copy of this Order to all counsel of record.

5

IT IS SO ORDERED.

6

Dated this 16th day of October, 2020.

7

8

A

9

Thomas S. Zilly

United States District Judge

10

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