1

The Honorable Marsha J. Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9
ROBERT HICKEY, KENNETH HANKIN, 10 JENNIFER HUDZIEC, STEPHANIE LANE,
CARROLL JACKSON, DENISE COOPER, 11 NICOLE PEARSON, and EMILY
MALONEY, on behalf of themselves and all 12 others similarly situated,

13

Plaintiffs,

14

v.

No. C00-1672 P
PLAINTIFFS' REPLY REGARDING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT
NOTED: October 31, 2003

15 THE CITY OF SEATTLE, a municipality; PAUL SCHELL, Mayor of the City of Seattle;
16 and NORMAN STAMPER, Chief of Police of the City of Seattle,
17
Defendants. 18

19

20

21

22

23

24

25

26

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TABLE OF CONTENTS

2

PAGE

3 I. INTRODUCTION ...............................................................................................................1

4 II. STATEMENT OF FACTS ..................................................................................................1

5 III. ARGUMENT.......................................................................................................................2

6

A. Plaintiffs Have Proven as a Matter of Law That the City Can Be

Held Liable in This Case..........................................................................................2

7

B. The City Apparently Admits That It Carries a Heavy Burden of

8

Production on Questions of Probable Cause............................................................2

9

C. The City Cannot Avoid the Requirement of Individualized

Probable Cause.........................................................................................................3

10

1. The law is clear – the Fourth Amendment requires

11

individualized probable cause......................................................................3

12

2. The City has not even attempted to characterize its

actions as conforming to its own policies on this matter .............................8

13

3. The City’s response confirms that it lacks individualized

14

probable cause..............................................................................................9

15

D. Because the City Has Failed to Carry Its Burden of Producing

Individualized Evidence, Its Arguments On Probable Cause

16

Are Irrelevant .........................................................................................................10

17

E. The City’s Groundless Motion to Strike Would Not Affect the

Outcome of This Motion Even If It Was Granted .................................................11

18

IV. CONCLUSION..................................................................................................................11

19

20

21

22

23

24

25

26

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TABLE OF AUTHORITIES

2

CASES

3 City of Indianapolis v. Edmond,

531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000)...........................................3, 4, 6, 8

4

Dellums v. Powell,

5

566 F.2d 167 (D.C. Cir. 1977) .........................................................................................3, 7

6 Dubner v. City & County of San Francisco,

1999 U.S. Dist. Lexis 15808 (N.D. Cal. 1999)..........................................................5, 6, 11

7

Dubner v. City of San Francisco,

8

266 F.3d 959 (9th Cir. 2001) .......................................................................................2, 4, 5

9 Ferguson v. City of Charleston,

532 U.S. 67, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001),

10

cert. denied, 156 L. Ed. 2d 605 (2003) ........................................................................4, 6, 8

11 Graves v. City of Couer d'Alene,

339 F.3d 828 (9th Cir. 2003) .......................................................................................5, 6, 7

12

Pembaur v. City of Cincinnati,

13

475 U.S. 469, 106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).....................................................2

14 St. Louis v. Praprotnik,

485 U.S. 112, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988).......................................................2

15

Sullivan v. Murphy,

16

478 F.2d 938 (D.C. Cir. 1973) .........................................................................................7, 9

17 Trevino v. Gates,

99 F.3d 911 (9th Cir. 1998) .................................................................................................2

18

United States v. Kincade,

19

___ F.3d ___ 2003 U.S. App. Lexis 20123 (9th Cir. 2003)............................................4, 6

20 Washington Mobilization Comm. v. Cullinane, 566 F.2d 107 (D.C. Cir. 1977) .....................................................................................3, 6, 7
21
STATUTES 22
29 C.F.R. § 2509.75-5FR-10 ...........................................................................................................3 23
29 C.F.R. § 2550.404a-1(b) .............................................................................................................4 24
29 U.S.C. § 1002(21)(A)(i)..............................................................................................................4 25
29 U.S.C. § 1104(a)(1)(B) ...............................................................................................................4 26

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1 29 U.S.C. § 1105(a)(1)-(3)...............................................................................................................4 2 42 U.S.C. § 1983..........................................................................................................................1, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

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1

Plaintiffs hereby submit their reply memorandum in support of Plaintiffs’ Motion for

2 Partial Summary Judgment. This brief does not constitute Plaintiffs’ reply to the City’s motion

3 to strike contained in the City’s brief, which was not noted separately under CR 7(d) but which

4 Plaintiffs understand should have been noted under CR 7(d)(3) for November 14, 2003.

5 Plaintiffs will submit their reply to that motion in accordance with CR 7(d)(3) on or before

6 November 10, 2003.

7

I. INTRODUCTION

8

Plaintiffs moved for partial summary judgment on the basis that the City has a burden of

9 producing evidence of individualized probable cause and that it cannot carry that burden. The

10 City’s opposition does not dispute that the City has a burden of production, and that the City has

11 no individualized evidence of probable cause. Instead, in the face of contradictory law from the

12 Supreme Court and the Ninth Circuit, the City argues that it does not have to produce

13 individualized evidence of probable cause. The City is not correct about the applicable standard.

14

Nor is the City correct that it cannot be held liable under 42 U.S.C. § 1983. As discussed

15 at length in Plaintiffs’ opposition to the City’s motion for summary judgment, at pp. 4-14,

16 Plaintiffs have proven as a matter of law that the City can be held liable for this arrest because it

17 as conducted by Captain James Pugel, a policymaker with authority to manage all

18 demonstrations and make mass arrests during the WTO. The City’s arguments concerning

19 municipal liability do not preclude the entry of partial summary judgment in favor of Plaintiffs.

20 Similarly, the City’s motion to strike portions of Plaintiffs’ evidence, even if it proves successful,

21 would not create genuine issues of material fact such that Plaintiffs’ motion for partial summary

22 judgment should be denied.

23

II. STATEMENT OF FACTS

24

Plaintiffs incorporate and refer the Court to the statements of facts provided in Plaintiffs’

25 motion for partial summary judgment, at pp. 2-10, and also in Plaintiffs’ opposition to the City’s

26 motion for summary judgment, at pp. 2-3 and 7-10.

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III. ARGUMENT

2 A. 3

Plaintiffs Have Proven as a Matter of Law That the City Can Be Held Liable in This Case

4

The City has opposed Plaintiffs’ motion on the same ground that it moved for summary

5 judgment – that the City cannot be held liable under 42 U.S.C. § 1983 because the Class was not

6 arrested pursuant to a City policy, custom, or practice. However, as explained in Plaintiffs’

7 opposition to the City’s motion, municipal liability can actually be proven three ways: (1) by

8 showing that the action was pursuant to a policy, (2) by showing that the action was undertaken

9 by a policymaker, or (3) by showing it was ratified by a policymaker. See, e.g., Plaintiffs’

10 Opposition, at p. 4. Plaintiffs can prove, and have proven, as a matter of law that the herding,

11 trapping, and arrest of the Class was directed and ordered by Captain James Pugel, who had been

12 delegated exclusive and complete policymaking authority with regard to demonstration

13 management and mass arrests during the WTO. See Plaintiffs’ Opposition to City’s SJ Motion,

14 at pp. 6-11. His decision to arrest the Class therefore subjected the City to potential liability

15 under § 1983. See id. See also, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 478, 106

16 S. Ct. 1292, 89 L. Ed. 2d 452 (1986) (discussing delegation of policymaking authority); St. Louis

17 v. Praprotnik, 485 U.S. 112, 126, 108 S. Ct. 915, 99 L. Ed. 2d 107 (1988) (same); Trevino v.

18 Gates, 99 F.3d 911, 918 n.2 (9th Cir. 1998) (single act of delegated policymaker is enough to

19 bind City). In any case, even if the Court concludes that there are genuine issues of material fact

20 as to whether the City may be subject to liability under § 1983, such a finding would not prevent

21 the Court from granting partial summary judgment on the ground that the City did not and cannot

22 sustain its burden to produce individualized evidence of probable cause.

23 B.

The City Apparently Admits That It Carries a Heavy Burden of Production on Questions of Probable Cause

24

The City does not dispute that it carries a heavy burden of producing evidence of

25 probable cause in this case, as it would in any wrongful arrest case. See, e.g., Dubner v. City of

26 San Francisco, 266 F.3d 959, 965 (9th Cir. 2001). While the City does not expressly

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1 acknowledge this burden, it also does not deny that it exists, nor could it. To the extent the

2 City’s discussion of Washington Mobilization Comm. v. Cullinane, 566 F.2d 107 (D.C. Cir.

3 1977), is an attempt to deny the existence of its burden, the City is incorrect. Cullinane does not

4 even discuss the City’s burden, much less hold that it does not exist. Even in the Cullinane court

5 the defendant in a wrongful arrest suit bears “the burden of justifying the arrest.” See Dellums v.

6 Powell, 566 F.2d 167, 175-76 (D.C. Cir. 1977). The City bears that burden, and as explained in

7 Plaintiffs’ opening brief, and again below, the burden is to produce evidence of individualized

8 probable cause.

9 C. The City Cannot Avoid the Requirement of Individualized Probable Cause

10

1. The law is clear – the Fourth Amendment requires individualized probable

11

cause

12

The City, unable to dispute that it bears a burden of production in this case, and also

13 unable to provide any evidence of individualized probable cause, instead attempts to argue that

14 its not required to provide individualized evidence in order to satisfy its burden. The City is

15 wrong.

16

As Plaintiffs pointed out in their motion, “[a] search or seizure is ordinarily unreasonable

17 in the absence of individualized suspicion of wrongdoing.” City of Indianapolis v. Edmond, 531 18 U.S. 32, 37, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000).1 That general rule is subject to limited

19 exceptions that apply only to “regimes of suspicionless searches … designed to serve ‘special 20 needs, beyond the normal need for law enforcement.’” Id. (citations omitted). The Supreme 21 Court has strictly limited exceptions to the general requirement of individualized probable cause 22 to broad searches that have a special purpose other than basic law enforcement, such as drug 23 tests of student-athletes, inspections of homes for compliance with housing codes, and seizures 24 of motorists at Border Patrol or sobriety checkpoints. See id. at 37-38. The requirement of 25 individualized suspicion is never relaxed and remains intact “where governmental authorities

26

1 It should be noted that although Plaintiffs cited Edmond in their opening brief, the City did not discuss the case or its holding anywhere in its response brief.

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1 primarily pursue their general crime control ends.” Id. at 43. See also, e.g., Ferguson v. City of

2 Charleston, 532 U.S. 67, 83-84, 121 S. Ct. 1281, 149 L. Ed. 2d 205 (2001) (individualized

3 suspicion required where purpose of search or seizure is “for law enforcement purposes”), cert.

4 denied, 156 L. Ed. 2d 605 (2003); United States v. Kincade, ___ F.3d ___ , 2003 U.S. App. Lexis

5 20123, *29 (9th Cir. 2003) (individualized suspicion required for search or seizure where

6 purpose is for “the solving and punishing of crime”) (attached as Ex. 1 to Declaration of Tyler

7 Weaver in Support of Reply Regarding Plaintiffs Motion for Partial Summary Judgment

8 (“Weaver Reply Decl.”)).

9

To that end, the Ninth Circuit has held in at least two recent cases concerning arrests

10 during demonstrations that the defendant in a wrongful arrest case cannot prevail without

11 producing evidence of individualized probable cause. In Dubner v. City of San Francisco, 266

12 F.3d 959 (9th Cir. 2001), already discussed extensively in prior briefs, the Ninth Circuit held that

13 “the burden shifts to the defendant to provide some evidence that the arresting officers had

14 probable cause for a warrantless arrest.” Id. at 965. In applying that burden, the Court held that

15 Dubner had – as a matter of law – “made out a valid claim of lawful arrest” because the

16 defendant had failed to come forth with any evidence “as to who arrested Dubner or what they 17 knew at the time.” Id. at 966.2

18

The City claims that Dubner has no bearing on this case because it concerned “a single

19 plaintiff’s arrest.” City’s Response, at p. 10. However, Dubner does not limit its holding to such

20 cases. The City also claims that the somehow the facts of this case differ substantially from

21 Dubner because the City can produce more evidence of probable cause, but that is simply not the

22 case. If anything, the Dubner defendants provided far more individualized evidence than the

23 City has produced.

24

2 The City suggests that Plaintiffs believe that Dubner requires that the police officer know the identity of a

person before they arrest that person. See City’s Response at p. 9. That is not Plaintiffs’ argument. Nor is it

25 Plaintiffs’ argument that “because the City may have had difficulty convicting the plaintiffs of the crimes they

committed, the arrests were necessarily unlawful.” Id. at 7. Dubner speaks for itself – what is required is that a

26

defendant in a wrongful arrest case be able to produce evidence of who arrested a particular person, and what specifically that person did to warrant arrest. Dubner, 266 F.3d at 966.

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In Dubner, a citizen directed the police to arrest protesters in front of a convention center

2 – by directing them to arrest any person who did not appear to be a convention attendee (and the

3 plaintiff did not). See Dubner v. City & County of San Francisco, 1999 U.S. Dist. Lexis 15808,

4 *34 (N.D. Cal. 1999) (attached as Ex. 1 to Weaver Reply Decl.). Furthermore, there was video

5 evidence that placed the plaintiff near the convention doors near the time an order to disperse

6 was given, and there was a defense witness who testified that he had seen the plaintiff

7 “congregating” with the protesters that were arrested for failure to disperse. See id. at *39 - *40.

8 However, not even such evidence was sufficient to carry the defense’s burden of production on

9 probable cause because no officer could testify to having seen her at the scene of arrest and could

10 not testify as to why they had probable cause to arrest Dubner. See Dubner, 266 F.3d at 966. In

11 comparison, in this case the City has not even produced video evidence of any arrestee, nor any

12 officer who could identify a particular Class member, much less indicate what that person did to

13 warrant arrest. In fact, officers who oversaw this arrest – including Capt. Pugel’s primary deputy

14 and the officer who wrote the solitary arrest report for this arrest – have testified that they could

15 not identify a single Class member. See Deposition of Dan Whelan, 22:22-25, 32:14 - 33:3,

16 Ex. 2 to Weaver Reply Decl.; Deposition of Fred Ibuki, 46:19 - 47:2, Ex. 3 to Weaver Reply

17 Decl.; Deposition of Landy Black, 44:11 - 45:3, Ex. 4 to Weaver Reply Decl. If the Dubner

18 plaintiff had established wrongful arrest as a matter of law due to the Dubner defendant’s lack of

19 evidence as to probable cause, then clearly the same is true for Plaintiffs and the Class.

20

Dubner’s guidance as to the City’s burden was recently affirmed and elaborated upon in

21 Graves v. City of Couer d’Alene, 339 F.3d 828 (9th Cir. 2003). Graves was a wrongful arrest

22 case in which the defendant did in fact produce evidence of who arrested the plaintiff, and what

23 that officer had considered to be probable cause to arrest the plaintiff. However, the officer had

24 his probable cause analysis largely on the circumstances in which he encountered the plaintiff – a

25 large, potentially violent, possibly militant demonstration against a neo-Nazi parade. See id. at

26 842-44. The court held that even in such “hostile circumstances,” and even given the officer’s

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1 good intentions, there was “insufficient individualized suspicion” to support a finding of

2 probable cause – and therefore the plaintiff had been wrongfully arrested as a matter of law. Id.

3 at 844. The Ninth Circuit could not have been clearer about the requirement of individualized

4 probable cause:

5

[The officer] did not give adequate weight to what the Fourth

Amendment requires us to place at the heart of our probable

6

cause assessment – consideration of evidence supporting

individualized suspicion. 7

Id. at 844 (emphasis added). Again, if the showing in Graves was insufficient, it is clearly so 8

here, where the City cannot and will not be able to produce any individualized evidence of 9

probable cause as to any Class member. 10

Graves and Dubner are directly contrary to the City’s argument that it need not produce 11

evidence of individualized probable cause. If the City were correct, and it was enough for the 12

City to simply produce evidence that its officers had a variety of “group” or “generalized” 13

probable cause to arrest the Class, then the burden of production would be on Plaintiffs and the 14

Class to come forth with evidence that the City’s officers did not have individualized evidence of 15

probable cause to arrest them. Such a shift in the burden would directly contradict Dubner, 16

which clearly places that burden on the City, and also run counter to Graves, which 17

unequivocally states that unless the fact finder can find individualized probable cause, the 18

plaintiff has established wrongful arrest as a matter of law. The City has provided nothing for a 19

finder of fact to consider in its analysis of probable cause, and therefore partial summary 20

judgment is appropriate because there is no issue for trial. 21

The City nonetheless contends that because it arrested such a large group of people in this 22

case, the requirement of probable cause should be relaxed. For that proposition, the City relies 23

exclusively on Cullinane – which is not binding on this Court, as are Dubner, Graves, Edmond, 24

Kincade, and Ferguson. In any case, Cullinane does not stretch as far as the City would like it 25

to. The primary issue in Cullinane was whether the district court had properly issued an 26

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1 injunction mandating that the police in the future would have to complete a “field arrest form”

2 for each person in a mass arrest. See id. at 120-21. The circuit court held the injunction was

3 improper because a prosecutor could theoretically build a case against each arrestee based on

4 witness testimony, even where no documentation of probable cause was made in the field. See

5 id. at 121.

6

The court was not considering the considerably different question of whether an arrest

7 that had already taken place was supported by probable cause, and hence did not even suggest

8 that proof individualized probable cause is unnecessary either in prosecuting a criminal case, or

9 in defending against a claim of wrongful arrest. If anything, the Cullinane court confirmed that

10 merely standing next to somebody who may have broken the law is not a sufficient basis for

11 arrest: “We do not suggest of course that one who has violated no law may be arrested for the

12 offenses of those who have been violent or obstructive.” See id. at 120. As the court noted, only

13 individuals who actually heard an order to disperse and failed to capitalize on an opportunity to

14 leave that could be arrested. See id. For that reason, the court was given “pause” by evidence

15 that many of those arrested did not hear any order to leave the area. See id. at 120 n.4. However,

16 because it was not deciding a wrongful arrest claim, but rather was ordering an injunction

17 regarding documentation of probable cause, the court did not have to reach the issues of whether

18 those individuals would have a claim of wrongful arrest. Furthermore, the court specifically

19 approved of cases finding wrongful arrest due to lack of evidence of probable cause – including

20 Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973). See Cullinane, 566 F.2d at 121 n.5

21 (approving of Sullivan). See also Dellums, 566 F.2d at 181 n.31 (discussing limitations of

22 Cullinane’s holding). As indicated in Plaintiffs’ opening brief, Sullivan held that if

23 individualized probable cause is not recorded at the scene of arrest, the entire mass arrest is

24 “presumptively invalid.” Sullivan, 478 F.2d at 967.

25

Cullinane thus does not hold that law enforcement can defeat a wrongful arrest claim

26 without providing individualized evidence of probable cause. Moreover, even if Cullinane had

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1 so held, that holding would have been invalid under Edmond and Ferguson, and would also have

2 contradicted the law of the Ninth Circuit. Nor is the City’s argument correct as a matter of

3 principle. The City essentially claims that because it arrested more than 140 Class members, it is

4 not bound to any requirement of producing evidence of individualized probable cause. In effect,

5 the City’s position is that the more massively it has curtailed the rights of personal liberty and

6 free speech, the less it must do to justify its actions. Such a rule would only create a preserve

7 incentive to conduct mass arrests and document them as poorly as the City documented the arrest

8 of this Class. This cannot be correct, and there is no case so holding. As a matter of law, and of

9 public policy, the City must come forward with individualized evidence of probable cause

10 supporting this arrest – which it cannot do and has not done.

11

2. The City has not even attempted to characterize its actions as conforming to

its own policies on this matter 12

In its response to Plaintiffs’ motion, the City has barely even mentioned its own policy on 13

documentation of mass arrests. The City’s only mention of that policy in its opposition is a 14

virtual admission that the documentation of this arrest violated its policy of recording 15

individualized probable cause in cases of mass arrest arising from large demonstrations. See 16

City’s Response, at p. 4. The City cannot escape the fact that its own policies have codified the 17

legal requirement of individualized evidence of probable cause, and that those policies were not 18

followed in this case. See Ex. 30 to Declaration of Tyler Weaver in Support of Motion for 19

Partial Summary Judgment, at pp. 6-7 (one portion of City policy confirming need for 20

individualized evidence). This failure to follow its own policies simply confirms that the City 21

cannot carry its burden. 22

In addition, to the extent the City is attempting to convince the Court that it would be 23

unrealistic to expect officers to document individualized probable cause in a mass arrest, the 24

City’s policy completely belies that argument. To quote that policy: 25

26

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1

To convict a suspect of Pedestrian Interference or Failure to

Disperse requires, as with other crimes, that the prosecution prove

2

the individual suspect committed the acts in question.

3

This requires not only that the officer-witness be able identify the

defendant in court, but that the officer be able to document and

4

testify to specific acts committed by a specific individual, which

meet all the elements necessary to prove the crime. Thus,

5

documentation of acts committed by the crowd in general, while

relevant and helpful, are by themselves not sufficient for the

6

charging and conviction of individual members of the crowd.

Each individual’s specific involvement and actions must be

7

documented. A “generic” report concerning an incident will not

be sufficient. 8

9 Id. (emphasis added). The City not only contemplated that officers would be able to document

10 individualized probable cause, it mandated them to do so. The City’s argument that it should not

11 should not now be held to that standard rings hollow.

12

3. The City’s response confirms that it lacks individualized probable cause

13

The City’s response to Plaintiff’s motion confirms that the City has no individualized

14 evidence of probable cause. The City has not even attempted to produce such evidence, nor even

15 attempt to rebut Plaintiffs’ showing that those arrested included people who were merely

16 bystanders or people who had happened upon the scene. The only mention of what any specific

17 Class member did is a reference to the declaration of Class representative Carroll Jackson, in

18 which the City apparently claims Mrs. Jackson admitted blocking traffic. See City’s Opposition

19 at p. 8. However, any honest reading of that declaration reveals that Ms. Jackson was never

20 blocking traffic that was not already blocked by others (including the police) and that her only

21 intent was to obey police orders, not to block traffic. See Declaration of Carroll Jackson, ¶ 4,

22 Ex. 4 to Declaration of Tyler Weaver in Support of Motion for Partial Summary Judgment. In

23 fact, Ms. Jackson unequivocally stated in her declaration, “I never blocked traffic.” See id. at

24 ¶ 5. This declaration does not satisfy the City’s burden of production on any point.

25

The only witness declaration that the City has submitted in opposition to Plaintiffs’

26 motion is that of Lt. Dan Whelan, who offers nothing more than his generalized view of what the

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1 Class did to justify arrest. This is not surprising given that Lt. Whelan (despite being the author

2 of the only arrest report in this case) was not present for the actual arrest and cannot identify a

3 single Class member. See Deposition of Dan Whelan, 27:24 - 28:3, 32:14 - 33:3 and 45:16-21,

4 Ex. 2 to Declaration of Tyler Weaver in Support of Reply Regarding Plaintiffs Motion for Partial

5 Summary Judgment (“Weaver Reply Decl.”). The testimony of other officers is essentially the

6 same – that none of them can identify a single Class member. See, e.g., Deposition of Fred

7 Ibuki, 46:19 - 47:2, Ex. 3 to Weaver Reply Decl.; Deposition of Landy Black, 44:11 - 45:3, Ex. 4

8 to Weaver Reply Decl.

9

In addition, shortly after Plaintiffs filed their motion in this Court, they received the

10 City’s answer to Interrogatory No. 11, as compelled by this Court on October 10, 2003. In

11 answering that interrogatory, which sought a recitation of all facts supporting probable cause to

12 arrest the Class members, the City provided a revised and updated version of its view of the

13 facts, but did not discuss any Class member, much less provide anything to support

14 individualized probable cause. See Ex. 5 to Weaver Reply Decl. The City cannot carry its

15 burden of production, and Plaintiffs are entitled to partial summary judgment.

16 D. 17

Because the City Has Failed to Carry Its Burden of Producing Individualized Evidence, Its Arguments On Probable Cause Are Irrelevant

Even if the City had carried its burden, Plaintiffs have already rebutted the City’s 18

arguments concerning probable cause to arrest the Class for pedestrian interference, in Plaintiffs’ 19

opposition to the City’s summary judgment motion. However, because the City has failed to 20

carry its burden of production, its arguments regarding probable cause in response to this motion 21
are irrelevant.3 22

23

24

3 Even if the Court denies Plaintiffs’ motion for partial summary judgment that does not mean the City is
25 entitled to summary judgment. Plaintiffs have opposed that motion, and in particular the City’s arguments regarding

probable cause, in their opposition to that motion and refer to that opposition for a discussion of the numerous

26

genuine issues of material fact with regard to the crimes for which the City contends it had probable cause to arrest the Class.

PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C00-1672 P
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1 E. The City’s Groundless Motion to Strike Would Not Affect the Outcome of This Motion Even If It Was Granted
2
The City has also moved to strike several of the declarations of several Class members 3
and other witnesses, as well as two exhibits. Plaintiffs will respond to this motion on or before 4
November 10, 2003, as provided in CR 7(d)(3). For present purposes, it is enough to note that 5
Plaintiffs will argue that the City’s motion is groundless and that the motion should be denied. 6
However, even if the City was entirely successful in striking the evidence it seeks to 7
strike, the Court should still grant Plaintiffs’ motion, and need not wait until the briefing on the 8
motion to strike is complete to grant partial summary judgment to Plaintiffs. Even without the 9
evidence the City claims was improperly submitted, it remains undisputed that the City cannot 10
produce any evidence of individualized probable cause, as admitted by the City in its discovery 11
responses and as confirmed by the testimony of its own officers. The City has failed to carry its 12
burden under Dubner and related cases, and therefore partial summary judgment in favor of 13
Plaintiffs is appropriate – even if the City were to successfully strike the evidence it seeks to 14
exclude. 15

IV. CONCLUSION 16

17

For the reasons given above and in Plaintiffs’ opening brief, the Court should grant

18 Plaintiffs’ motion for partial summary judgment.

19 Dated: October 30, 2003. 20 21 22 23 24 25

HAGENS BERMAN LLP
By Steve W. Berman, WSBA #12536 Tyler Weaver, WSBA #29413
1301 Fifth Avenue, Suite 2900 Seattle, WA 98101 (206) 623-7292

26

PLAINTIFFS’ REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT Case No. C00-1672 P
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1

2

Arthur Bryant

Victoria Ni

3

TRIAL LAWYERS FOR PUBLIC JUSTICE

One Kaiser Plaza, Suite 275

4

Oakland, CA 94612-3684

(510) 622-8150

5

Michael E. Withey

6

STRITMATTER KESSLER WHELAN WITHEY

COLUCCIO

7

200 Second Avenue West

Seattle, WA 98119-4204

8

(206) 448-1777

9

FRED DIAMONDSTONE

Attorney at Law

10

700 Dexter Horton Bldg

710 Second Ave

11

Seattle, WA 98104

(206) 568-0082

12

YVONNE KINOSHITA WARD

13

Attorney at Law

128 14th St. S.E.

14

Auburn, WA 98002

(253) 887-8686

15

John Muenster

16

MUENSTER & KOENIG

Wells Fargo Center

17

999 Third Ave., Suite 4100

Seattle, WA 98104

18

Benjamin Schwartzman

19

LOVELL STEWART HALEBIAN & BARTH,

LLP

20

1420 Fifth Ave., Suite 2200

Seattle, WA 98101

21

ERWIN CHEMERINSKY

22

Professor of Law

Univ. of So. Calif. Law School

23

University Park

Los Angeles, CA 90089-0071

24

Counsel for Plaintiffs

25

26

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 1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 ROBERT HICKEY, et al.,

8

Plaintiff(s),

9 v.

10 CITY OF SEATTLE, et al.,

11

Defendant(s).

12

No. C00-1672P
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT

13

14

This matter comes before the Court on the parties' cross motions for summary judgment.

This case arises out ofthe arrest of approximately 150 people during the 1999 World Trade 15

16 Organization ministerial conference, during which massive protests were conducted in the City of

17 Seattle. Plaintiffs, who are a class of persons who were arrested on December 1, 1999, at the comer

ofFirst Avenue and Broad Street, move for a declaration of liability regarding deprivation of fourth 18

19 and fourteenth amendments resulting from their arrests without individualized probable cause.

20 Defendant City of Seattle moves for summary judgment on all claims on the ground that a

municipality cannot be held liable for constitutional violations on a theory of respondeat superior; 21

22 rather a policy, practice, or custom must have resulted in the constitutional rights deprivation, and

23 none can be shown here. Plaintiffs counter that either final policymaking authority·was delegated to

24 the officer in charge ofthe arrests of the class members, or alternatively that the officer's actions were

25 ratified by persons with fmal policy making authority. Having reviewed the papers and pleadings

26

ORDER-I

1 submitted by the parties, and having heard oral argument on the issues, the Court hereby rules as folio

2

1) Defendant's motion for summary judgment is granted with respect to direct use of and

3

delegation offmal policymaking authority.

4

2) Defendant's motion for summary judgment is denied with respect to ratification of

5

certain actions by persons with fmal policymaking authority, as disuptes of material

6

fact exist on this issue that are appropriately decided by the jury.

7

3) Plaintiff's motion for partial summary judgment is granted in part, insofar as the

8

motion calls for a determination of probable cause, but not as to liability. The Court

9

determines that the arrests ofthe class members was made without the requisite

10

individualized suspicion required to make an warrantless arrest.

11

BACKGROUND

12

On November 30, 1999, the ministerial conference of the World Trade Organization ("WTO")

13 convened in Seattle, Washington. Massive protests by a diverse array of groups were planned and

14 carried out that day, with protesters numbering in the tens of thousands. While there were many

15 permitted, well-planned and well-organized rallies and marches, a large number of protestors engaged

16 in civil disobedience by blocking streets and sidewalks, essentially shutting down the opening day of

17 the WTO conference. Others engaged in violent acts, including destruction of property and assault

18 on police officers.

19

In response, then Mayor Paul Schell declared a state of emergency in the city, and directed the

20 police chief and fire chief to take those steps necessary to maintain the peace and protect property.

21 Bissell Decl. Ex. 1. A general nighttime curfew was imposed on the downtown area. Id. Ex. 2. The

22 following day, Mayor Schell signed an additional emergency order establishing a limited access zone

23 encompassing a 25-block area centered on the venues utilized by the WTO delegates and conferees.

24 That same day, various groups of protesters formed both inside and outside the "No-Protest" or

25 "limited access" zone.

26

ORDER-2

1

The facts relevant to the present suit and motions involve a mass arrest of approximately 150

2 people that took place on First Avenue between Broad and Clay Streets. Most of the relevant

3 factual backdrop regarding the events leading up to the arrests is not seriously in dispute, although

4 the spin on the facts differs between the parties. In short, a group of protestors was pushed by police

5 lines from downtown Seattle toward the Belltown area. Eventually, an order was given by Captain

6 Pugel, the "Demonstration Management Commander," to stop the group's northbound progress,

7 surround the group, and arrest its members. It is disputed whether members of the group were

8 ordered to disperse once they arrived at the intersection ofFirst and Broad, and whether or not they

9 were given a meaningful opportunity to comply with that order. However, as explained in more

10 detail below, these disputed facts are not relevant to a determination of individualized probable cause

11 to make the eventual arrests. Plaintiffs further allege that no effort was made to differentiate between

12 those herded and innocent bystanders caught up in the corral. Members of the plaintiff class were

13 then arrested, transported to Sandpoint Naval Facility, booked and jailed. Most ofthe class members

14 were held for three days, then released, yet never faced prosecution for any charges arising out of this

15 arrest.

16

Critical to the present case, each ofthe arrestees was booked using photocopied arrest

17 records without any documentation about what each individual might have done to warrant his or her

18 arrest. See Weaver Decl. Exs. 7-21. Each arrest form lists Lt. Black as the arresting officer, though

19 he admitted in his deposition that he did not perform a single arrest. Each arrest form has the same

20 hand-written, photocopied statement that says that "Susp. failed to clear street in the area of Ist and

21 Broad to 1st and Denny in accordance with Mayor order. Warning given by Lt. Black. Susp.

22 arrested after returning to refusing to leave the area. No photo taken in field due to number of

23 arrestees." These arrest forms are inaccurate, as admitted by the City's agents including Captain

24 Pugel, in that the arrests were not made pursuant to the Mayor's order, since they took place outside

25 the no-protest zone, and that Lt. Black did not give any of the warnings. It is clear that the police

26 processed everyone in the class, at least on paper, as if they had been arrested inside the no-protest

ORDER- 3

1 zone. As stated in the photocopied arrest form, no photos were taken because of the number of

2 arrestees. Thus, plaintiffs contend that the City arrested them without any individualized evidence of

3 probable cause.

4

The City, on the other hand, asserts that the group was ordered to disperse, and that the class

5 members were arrested after failure to comply with that order, and for pedestrian interference. In fact,

6 the City claims that many of the protestors stated that they wanted to be arrested in order to make a

7 statement. However, the City's witnesses have provided the Court with no information regarding any

8 individual they claim to have violated the orders to disperse or the code provision on pedestrian

9 interference.

10

Numerous cases were filed in federal court alleging various constitutional violations. The

11 present suit, as well as other suits, challenged the constitutionality of the mayor's order establishing

12 the ''No-protest"/"limited access" zone. The cases were consolidated for resolution of this and

13 several other smaller legal issues. Judge Rothstein then granted summary judgment to the City,

14 entering a declaration that the Zone was constitutional, both facially and as applied.

15

The Court later entered an order certifYing certain issues for interlocutory appeal, but the

16 Ninth Circuit declined to hear the case on an interlocutory basis. Certain claims and parties, including

17 some ofthe parties in this case, were then dismissed from the case through entry ofRule 54(b)

18 judgment, and those claims are currently on appeal before the Ninth Circuit. Finally, Judge Rothstein

19 approved a class in this specific case consisting of all persons arrested in the afternoon ofDecember 1

20 at the intersection ofFirst Avenue and Broad Street in Seattle.

21

The two motions presently before the Court address the two central issues that must be

22 decided. Defendant moves for summary judgment on all remaining claims on the basis that the City

23 of Seattle cannot be held liable under § 1983 for alleged violations of plaintiffs' fourth and fourteenth

24 amendment rights because § 1983 does not allow for respondeat superior liability, and because

25 plaintiffs cannot show a municipal policy, practice or custom that led to the deprivations. Further,

26 defendant asserts that the City cannot be held directly liable for acts of a person with "fmal policy

ORDER-4

1 making authority." Plaintiffs counter that fmal policymaking authority was delegation to Captain

2 Pugel, or in the alternative that Captain Pugel's actions were ratified by Chief Stamper and/or Mayor

3 Schell. Plaintiffs also move for a declaration of liability regarding deprivation of Fourth and

4 Fourteenth Amendment rights resulting from arrest without individualized probable cause. The City

5 opposes this motion, and moves for summary judgment on this ground in its motion as well.

6

ANALYSIS

7

As defendant states, absent a predicate federal constitutional violation, a plaintiff cannot

8 sustain a claim against a municipality under § 1983 even if an alleged policy, custom, or practice

9 exists. Jackson v. City ofBremerton, 268 F.3d 646, 683 (9th Cir. 2001). On the other hand, absent

10 the existence of a policy, custom, or practice allowing liability to flow to a municipal defendant, a

11 plaintiff cannot succeed in bringing a claim against a municipality even if his rights were violated.

12 Board of County Commissioners v. Brown, 520 U.S. 397, 403-4 (1997). The Court begins by

13 analyzing the more general issue of municipal liability first, then the issue of probable cause.

14

A. Summary Judgment Standard

1S

This matter is before the Court on cross motions for summary judgment. Summary judgment

16 is not warranted if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58 F.3d 439, 17 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying facts are viewed in the light 18 most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 19 475 U.S. 574, 587 (1986). "Summary judgment will not lie if ... the evidence is such that a 20 reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc.,

21 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden to show initially 22 the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 23 144, 159 (1970). However, once the moving party has met its initial burden, the burden shifts to the

24 nonmoving party to establish the existence of an issue of fact regarding an element essential to that 25 party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett,

26

ORDER- 5

1 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving party cannot rely on its

2 pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id. at 324.

3

B. Municipal Liabilitv Under 42 U.S.C. § 1983

4

Title 42 U.S.C. § 1983 provides in part:

5

Every person who, under color of any statute, ordinance, regulation, custom or usage,

of any State or Territory or the District of Columbia, subjects, or causes to be

6

subjected, any citizen ofthe United States or other person within the jurisdiction

thereof to the deprivation of any rights, privileges, or immunities secured by the

7

Constitution and laws, shall be liable to the party injured in an action at law, suit in

equity, or other proper proceeding for redress ...

8 Congress intended that the term "person" should include municipalities such as the City of Seattle in

9 this case. Monell v. Department of Social Serv. ofN.Y., 436 U.S. 658, 694 (1978). However,

10 liability does not extend to municipalities simply because the municipality employs a tortfeasor- in

11 other words, a municipality cannot be held liable for constitutional rights deprivations on a theory of

12 respondeat superior. Id. at 691. "Instead, Congress intended to hold municipalities liable only when

13 'action pursuant to official municipal policy of some nature caused a constitutional tort."' Christie v.

14 Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999), quoting Monell, 436 U.S. at 691.

15 This "official policy" requirement for municipality liability may be satisfied in a number of

16 ways. Most obviously, it may be shown directly, as through an official, legislatively or

17 administratively adopted policy. Hyland v. Wonder, 117 F.3d 405, 414 (9th Cir. 1997). Official

18 policy may also be established through evidence of a "longstanding practice or custom." Gillette v.

19 Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). In contrast, isolated constitutional violations can

20 constitute municipal "policy" if 1) the person causing the violation has "fmal policy making authority"

21 or has been delegated such authority by someone with fmal policy making authority; 2) the acts

22 constituting the constitutional violation were later ratified by one with fmal policy making authority;

23 or 3) the failure to train subordinates in light of substantial need for such training constitutes

24 "deliberate indifference" on the part ofthe policy maker. Christie, 176 F.3d at 1235-41.

25 In this case, plaintiffs assert that 1) the arrests were made pursuant to Mayor Schell's declared

26 policy, and/or that 2) final policymaking authority with respect to crowd management and mass

ORDER-6

arrests during the WTO conference was delegated to Captain Pugel, and/or that 3) Mayor Schell and

2 Police Chief Stamper ratified Captain Pugel's actions.

3

In analyzing these issues, the Court must look first to what constitutes "fmal policymaking

4 authority." The Court makes this determination with respect to a particular official's authority "in a

5 particular area, or on a particular issue." McMillan v. Monroe County, Alabama, 520 U.S. 781, 785

6 (1997). This determination of whether an official has "fmal policymaking authority" is dependent on

7 an analysis of state law. Id.

8

In this case, authority to make municipal policy flows from the Seattle City Charter. The

9 Charter designates the Mayor and the Police Chief as final policymakers. Most relevant to the

10 present case is Article VI ofthe Charter, which directs the Police Chiefto "manage the Police

11 Department" and to "prescribe rules and regulations, consistent with the law, for its government and

12 control." Charter of the City of Seattle, Art. VI, Sec. 4. The Charter also directs the Chief of Police

13 to "maintain the peace and quiet of the City" and provides police officers with the power to arrest.

14 Id. Sec. 5. Article VI, Section 4 has been cited as establishing the Chief of Police as a policymaker

15 for§ 1983 purposes. Baldwin v. Seattle, 55 Wn.App. 241, 776 P.2d 1377 (1989). This has also

16 been cited as the authority for promulgation ofthe police manual of rules and procedures. Punton v.

17 Seattle Public Safety Commission, 32 Wn.App. 959, 650 P.2d 1138 (1982).

18

Having established the source offmal policymaking authority, the Court turns to plaintiff's

19 three theories regarding the direct use, delegation, or ratification of that authority.

20

1. Liability Based on Mayor Schell's Declared Policy Through the Emergency

Orders

21 Plaintiffs' first theory of municipal liability is that the arrests were made pursuant to Mayor

22 Schell's emergency order. Their primary evidence ofthis is the photocopied arrest forms which each

23 state that the person was arrested because he or she "failed to clear the street in accordance with

24 mayor order." See e.g., Weaver Decl. Ex. 7. Plaintiffs also rely on the City's misguided argument

25 that the mayor's order was the source of the police officer's authority to order persons to disperse

26 and to arrest them for failure to obey those orders. See City's Mot. for Sum. Jud. at 19-20. The

ORDER-7

1 Court agrees with plaintiff that the City cannot on the one hand argue that the Mayor's order had 2 nothing to do with the arrests, then reverse course and argue that the failure to obey an order issued 3 under the mayor's authority gave the officers' probable cause to arrest the class members. The 4 record reflects that the paperwork is in error. The testimony of several ofthe officers was that the

5 class members were arrested for pedestrian interference and failure to disperse, neither of which 6 require a mayor's emergency order to be effective. Captain Pugel himself specifically stated under

7 oath that the arrest reports were in error. Pugel Dep. 282: 15-16. Neither party can have it both 8 ways. The Mayor's order cannot be used to show action pursuant to City policy, nor can it be used

9 to justifY the arrests. Likewise, the arrest forms cannot be used to show action pursuant to policy,

10 nor can they be used to establish probable cause. It is clear that these arrests, made outside the no-

ll protest zone, were not made pursuant to the Mayor's emergency order.

12

2. Liability Based on Delegation of Final Policymaking Authority

13

Plaintiffs next argue that Captain Pugel had been delegated relevant fmal policymaking

14 authority, and as such, his actions related to that authority can result in liability for the City.

15 Delegation offmal policymaking authority complicates the analysis. As the Supreme Court has

16 recognized:

17

If the mere exercise of discretion by an employee could give rise to a constitutional

violation, the result would be indistinguishable from respondeat superior liability. If,

18

however, a city's lawful policymakers could insulate the government from liability

simply by delegating their policymaking authority to others, § 1983 could not serve its

19

intended purpose.

20 City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988). "The question therefore becomes whether

21 the policymaker merely has delegated discretion to act, or whether it has done more by delegating 22 fmal policymaking authority." Christie, 176 F.3d at 1236. See also, Pembaur v. City of Cincinnati, 23 475 U.S. 469, 483 (1986). Two factors have been identified in determining whether the official's

24 discretionary decisions constitute fmal policymaking:

25

When an official's discretionary decisions are constrained by policies not of that

official's making, those policies, rather than the subordinate's departures from them,

26

are the act of the municipality. Similarly, when a subordinate's decision is subject to

ORDER- 8

1

review by the municipality's authorized policymakers, they have retained the authority

to measure the official's conduct for conformance with their policies.

2

Propotnik, 485 U.S. at 127 (emphasis in original). Finally, the question of whether a subordinate has 3

4 been delegated fmal policymaking authority on a particular issue is an issue oflaw for the court to

5 decide. Id. at 126.

Thus the Court must first identify what authority was alleged to have been delegated, then 6

7 determine whether that authority in fact "fmal policymaking authority." In the present case, plaintiffs

8 have had substantial difficulty defming exactly what authority they allege had been delegated to

9 Captain Pugel. Some of plaintiffs' contentions are as follows:

10

1. ''with regard to all crowd management and mass arrests" during the WTO (Opp'n at 1).

11

2. ''to make all decisions concerning the management, and arrest, of any and all

12

demonstrations during the WTO." (Opp'n at 6).

13

3. ''to direct a force of at least 240 officers to respond to demonstrations and make whatever

14

arrests Capt. Pugel determined were necessary." (Opp'n at 7)

15

4. "demonstration management" (Opp'n at 8).

16

5. ''to manage any demonstrations during the WTO." (Opp'n at 9).

17

6. "for purposes of all arrests made during the WTO" (Opp'n at 9).

7. ''with regard to any arrests that he determined were necessary in his role as Demonstration 18

19

Management Commander." (Opp'n at 10).

20

8. "for purposes ofthe arrest ofthe Class" (Opp'n at 10).

21 The discretionary authority to make arrests is given to every police officer on the beat. This cannot

22 be the final policy making authority that would be delegated to Captain Pugel. From the other

23 statements of authority made in plaintiff's briefmg, the Court fmds that the appropriate alleged

24 authority delegated to Captain Pugel was that of "demonstration management" during the 1999 WTO

25 conference.

26

ORDER-9

1

With that definition in mind, the Court next makes a determination of whether this authority

2 constitutes "fmal policymaking authority" for purposes of§ 1983 liability. At oral argument, counsel

3 for the City made the distinction between "policy making authority" and "policy implementing

4 authority," then argued that Captain Pugel had nothing more than the power to implement policy

5 already established by the Chief of Police. The Court fmds this rationale persuasive. Plaintiffs point

6 to the following facts to establish delegation of policy making authority:

7

1. Captain Pugel's title as "demonstration management commander,"

8

2. the testimony of Assistant Chief Joiner stating that he "gave the field commander- in most

9

cases during my shift, it was Captain Pugel- the authority to take whatever action

10

was necessary, initially to open a corridor and then maintain order and restore order."

11

3. Chief Stamper's full approval of all actions taken by Captain Pugel, as well as full

12

delegation of discretion without limits.

13

4. The "Demonstration Management Plan," which stated that Pugel had the authority ''to

14

determine that enforcement or arrest action [was] warranted ..."

15

5. his designation as the point person in charge ofWTO demonstration planning prior to the

16

conference.

17

6. Captain Pugel's own understanding of his authority.

18 Yet none ofthese facts demonstrate that Captain Pugel was not operating under the police manual of

19 rules and procedures, and that he could not be held accountable for his decisions by Chief Stamper, or

20 even that those decisions would not be subject to review. In fact, the record reflects that Captain

21 Pugel's decisions were at least cursorily reviewed in the City's After Action Report, reporting that

22 persons at First and Broad were arrested for committing "criminal acts." Second Weaver Decl. Ex. 5

23 at 44.

24

At oral argument, the City submitted relevant portions ofthe Seattle Police Department's

25 policies and procedures specifically addressing mass protest and civil disobedience. See Operational

26 Procedures, Section 2.031, Unusual Occurrences. These policies specifically address how

ORDER-10

1 demonstration management should be carried out, and how those involved in civil disobedience

2 should be treated and processed. They also prescribe guidelines for the use of chemical agents and

3 "less lethal weapons." Based on an analysis of the record as a whole, the Court fmds that Captain

4 Pugel, acting as "demonstration management commander," had been delegated authority to

5 implement the City's previously established policies and procedures regarding demonstration 6 management and control. These were policies not of Captain Pugel's own making, and there is no

7 evidence that his implementation actions could not have been subject to subsequent review.

8

The Court holds, as an issue of law, that Captain Pugel had not been delegated final

9 policymaking authority with respect to demonstration management. The entirety of the record and

10 the totality ofthe circumstances indicate that Captain Pugel's authority was the discretionary

11 authority to implement previously created policies and procedures not of his own making, within the

12 context ofthe WTO conference demonstrations. This is not a basis for§ 1983 municipal liability.

13

3. Liability Based on Ratification by a Person With Final Policymaking Authority

14

In the alternative, plaintiffs assert that the City can be held liable for the acts of Captain Pugel

15 on the theory that persons with fmal policymaking authority, namely Mayor Schell and Police Chief

16 Stamper, ratified those acts at a later date. "Ordinarily, ratification is a question for the jury." 17 Christie, 176 F.3d at 1238-39. Of course there must be an issue of fact for the jury to decide.

18

Ratification is simply the flip side ofthe delegated authority coin. As the Supreme Court

19 noted,

20

when a subordinate's decision is subject to review by the municipality's authorized

policymakers, they have retained the authority to measure the official's conduct for

21

conformance with their policies. If the authorized policymakers approve a

subordinate's decision and the basis for it, their ratification would be chargeable to the

22

municipality because their decision is fmal.

23 Proprotnik, 485 U.S. at 127 (emphasis in original). To show ratification, then, a plaintiff may show

24 evidence that the actions of the subordinate were expressly ratified, Hyland v. Wonder, 117 F.3d 405,

25 416 (9th Cir. 1997), or impliedly (yet affirmatively) ratified. Christie, 176 F.3d at 1239-40. To do so,

26 the plaintiff must first show that the relevant policymaker had "knowledge ofthe alleged

ORDER-II

1 constitutional violation." Id. at 1239. 1 But knowledge alone does not establish ratification- "a 2 policymaker's mere refusal to overrule a subordinate's completed act does not constitute approval." 3 Id. Instead, it must be shown that the policymaker made a "deliberate choice to endorse" the 4 subordinate's action. Gillette v. Delmore, 979 F.2d 1342, 1348 (9th Cir. 1992). Thus, if"a rational

5 juror could infer that [the policymaker's] acts showed affrrmative agreement with [the subordinate's] 6 actions," there will be at least an issue of fact with respect to ratification. Christie, 176 F.3d at 1240.

7

In the present case, there is at least an issue of material fact on the question of whether

8 Captain Pugel's decisions were ratified with those with policymaking authority. Viewing the evidence

9 presented in the light most favorable to the plaintiff, rational jurors could infer that Captain Pugel's

10 actions were ratified by Mayor Schell and/or Chief Stamper. First, there is no dispute that the Mayor

11 and the Police Chief, who the City acknowledges and even argues have fmal policymaking authority, 12 knew ofthe alleged constitutional violations. For example, plaintiffs have submitted testimony of

13 Ron Judd, who testified that he actually spoke with the Mayor on the phone while the incidents at

14 issue in this lawsuit were happening. Judd Dec!. at~~ 11-13. Both the Mayor and the person running

15 the "Multi-Agency Command Center" attempted to get in touch with Captain Pugel during the

16 incident, but were unsuccessful. A rational juror could infer from this information that Pugel was the

17 one in charge, and that either policymaking authority had been delegated to him (relevant to the

18 above analysis) or, based on comments by the Command Center chief reciting the point of view ofthe

19 police, that Captain Pugel's decision to corral and arrest the plaintiff class had been ratified by the

20 Mayor.

21

Next, plaintiffs point to the City's After-Action Report, which references this incident in

22 rather cursory fashion, reporting that persons were arrested who were committing "criminal acts."

23

24

'The City rnischaracterizes the knowledge requirement by stating that the fmal policymaker must know that ofthe actions of the subordinate and must know that those actions constitute a deprivation

of constitutional rights. That is not what the Ninth Circuit opinions state and is not the state of the law. 25 To so hold would be to create a type of qualified immunity at the municipal level. See Saucier v. Katz,

533 U.S. 194 (2001) (qualified immunity for individual officers' discretionary conduct exists absent a 26 showing that the conduct violates a clearly established constitutional or statutory right of which a

reasonable person would have known).

ORDER-12

1 This also sheds light on whether the actions directed by Captain Pugel were ratified by SPD and in 2 turn Chief Stamper. In addition, while it is true that mere refusal to overrule a subordinate's decision 3 is not enough to establish ratification, it is certainly relevant to the analysis. This is particularly true in 4 a case such as this where a highly publicized arrest involving alleged corralling of individuals with 5 impossible-to-obey orders to disperse, looking at the case in the light most favorable to the plaintiffs 6 on this issue, which the Court must do on summary judgment.

7

Finally, and in most importantly, both Chief Stamper and Assistant Chief Joiner testified at

8 their depositions that there was not a single arrest made during the WTO event that they questioned,

9 and that they supported Captain Pugel's decisions. Stamper Dep. 23:1- 24:4; Joiner Dep. 55:17-

10 56:10. These depositions were taken in the context ofthis litigation, with full knowledge that the

11 plaintiff class was alleging a constitutional violation in the form of a warrantless arrest without

12 probable cause. This is solid evidence of knowledge of an alleged constitutional violation, and the

13 deposition statements ofthese officials easily imply, if not directly state, their ratification of Captain

14 Pugel's decisions and specifically the arrests ofthe class members.

15

The Court must address two arguments made by counsel for the City. First, in its briefmg, the

16 City argues that there must be "express" approval. This is not the law. As stated above, ratification

17 may be express, as through a formal adoption of a policy established by a subordinate, or implied

18 through the affirmative actions ofthe policymaker tending to show that there was deliberate

19 endorsement or approval of the actions of the subordinate. If"a rational juror could infer that [the

20 policymaker's] acts showed affirmative agreement with [the subordinate's] actions," there will be at

21 least an issue of fact with respect to ratification. Christie, 176 F.3d at 1240. A rational juror "infers"

22 something that is "implied" by statements or actions of a policymaker. Thus, evidence such as the

23 Mayor's comments to the Mr. Judd or the vague references to the arrest ofthe class members can be

24 used to show implied ratification of Captain Pugel's actions and specifically the arrests. In any event,

25 even ifthere were an "express" approval requirement, the deposition statements of Captain Pugel's

26

ORDER-13

supervisors, including the Chief of Police, tend to show express approval ofthe actions taken by

2 Pugel and the arrests made under his command.

3

Second, counsel for the City argued at oral argument that ratification contains a "causation"

4 element, namely that the ratification must have caused the constitutional violation. In support of this

5 premise, counsel demonstrated that the only cases in which there has been either a fmding of

6 ratification or an issue of fact as to ratification are cases in which the fmal policymaker has concurrent

7 knowledge ofthe alleged constitutional violations and at least impliedly (but affirmatively) approves 8 of such conduct, Christie, I76 F.3d at I239-40, or cases in which there is an on-going harm, such as 9 the unconstitutional deprivation of employment. Hyland, II7 F.3d. at 4I6. The City also stated that

IO Trevino v. Gates, 99 F.3d 9II (9th Cir. I996), stands for the proposition that the ratification must II have caused the alleged constitutional harm. Yet the section of that opinion dealing with ratification

I2 simply states that "municipal liability on the basis of ratification [can be shown] when the officials 13 involved adopted and expressly approved of the acts of others who caused the constitutional I4 violation." Id. at 920. There is a substantial difference between the ratification causing the I 5 constitutional violation, as the City argues, and approval of the "acts of others" that caused the I6 violations, as the cases hold.

I?

Finally, the City's interpretation would mean that ratification could effectively never happen

I 8 post hoc. In other words, if causation were an element to ratification, a policymaker could not incur I9 liability on behalfofthe municipality for a one-time constitutional violation, even ifthat policymaker 20 at some later date fully approved of the actions taken by the actor. This interpretation is contrary to 2 I any traditional legal notion of ratification. For example, Black's Law Dictionary defmes ratification 22 as "confirmation and acceptance of a previous act, thereby making the act valid from the moment it 23 was done." Blacks Law Dictionary, 1268, (7th Ed. I999). Though ratification in the context of§

24 I983 liability has taken on some special connotations, causation is not one ofthem.

25

26

ORDER- 14

1

The Court hereby fmds that material issues of fact exist as to whether the decisions and

2 actions of Captain Pugel that resulted in the arrest ofthe class members were ratified by appropriate

3 fmal policymakers.

4

C. Probable Cause

5

As there is at least an issue of fact as to the City's potential for liability, the Court proceeds to

6 address the issue of individualized probable cause. A claim for unlawful arrest is cognizable under §

7 1983 as a violation ofthe Fourth Amendment provided that the arrest was made without probable 8 cause or "other justification." Dubner v. City and County of San Francisco, 266 F.3d 959, 964 (9th

9 Cir. 200 1). Making out a claim for unlawful arrest involves a burden shifting analysis:

10

Although the plaintiff bears the burden of proof on the issue of unlawful arrest, she can

make out a prima facie case simply by showing that the arrest was conducted without

11

a valid warrant. At that point, the burden shifts to the defendant to provide some

evidence that the arresting officers had probable cause for a warrantless arrest. The

12

plaintiff still has the ultimate burden of proof, but the burden of production falls on the defendant. Ifthe defendant is unable or refuses to come forward with any evidence

13

that the arresting officers had probable cause and the plaintiffs own testimony does

not establish it, the court should presume the arrest was unlawful.

14 Id. at 965 (internal citations omitted). Probable cause, meanwhile, exists when, ''under the totality of

15 the circumstances known to the arresting officers (or within the knowledge of the other officers at the

16 scene), a prudent person would believe the suspect had committed a crime." Id. at 966. "When there

17 has been communication among agents, probable cause can rest upon the investigating agents'
18 'collective knowledge.' United States v. Valencia, 24 F.3d 1106, 1108 (9th Cir. 1994). Nevertheless,
19 an warrantless search or seizure ordinarily must be based on individualized suspicion of wrongdoing.
20 City oflndianapolis v. Edmond, 531 U.S. 32, 37 (2000). Thus the Court must piece together the

21 totality of the circumstances known to the officers at the time based on their testimony, the plaintiffs'
22 testimony, and any other undisputed facts. Dubner, 266 F.3d at 966.

23 1. The City's Stated Reason for the Arrests
24 As discussed above and below, the stated reason for the arrests of the class members in terms

25 of the arrest records was the Mayor's emergency order. Also as stated above and below, the Court
26 will not credit these arrest records as proof of exercise of policymaking authority or as proof of

ORDER- 15

1 probable cause. The arrest records have been specifically discredited by officer testimony and the

2 record as a whole. As probable cause of a specific crime does not need to be determined at the time

3 of arrest, the Court looks to what other crimes may have allegedly been the justification for these

4 arrests.

5

Officers have testified that the plaintiffs were actually arrested for "Failure to Disperse" and

6 "Pedestrian Interference." Thus it would seem that any probable cause analysis should be done under

7 these provisions. The text of those code provisions, in relevant part, is as follows:

8

12A.12.020- Failure to Disperse

D. As used in subsection B of this section, "public safety order" is an order issued

9

by a peace officer designed and reasonably necessary to prevent or control a

serious disorder, and promote the safety of persons or property....

10

E. A person is guilty of failure to disperse if:

A.

11

B. He refuses or intentionally fails to obey a public safety order to move, disperse or refrain from specified activities in the immediate vicinity.

12 12A.12.015 Pedestrian Interference

13

A. The following definitions apply in this section:

1. .. .

14

2... .

3... .

15

4. "Obstruct pedestrian or vehicular traffic" means to walk, stand, sit, lie,

or place an object in such a manner as to block passage by another

16

person or a vehicle, or to require another person or a driver of a vehicle

to take evasive action to avoid physical contact. Acts authorized as an

17

exercise of one's constitutional right to picket or to legally protest, and

acts authorized by a permit issued pursuant to the Street Use

18

Ordinance, Chapters 15.02 through 15.50 ofthe Seattle Municipal

Code, shall not constitute obstruction of pedestrian or vehicular traffic.

19

5....

B. A person is guilty of pedestrian interference if, in a public place, he or she

20

intentionally:

1. Obstructs pedestrian or vehicular traffic; or

21

2....
c. Pedestrian interference is a misdemeanor.

22
SMC 12A.12.020 and 015.

23
Thus there must be evidence in the record that the officers had individualized probable cause

24 to believe that the class members had committed or were in the process of committing the above

25 crimes.

26

ORDER-16

1

2. Mass arrests and the issue of individualized probable cause

2

Plaintiffs base the vast bulk of their argument on the fact that the City cannot establish

3 individualized probable cause. The City responds that it does not need to. The following is a brief

4 examination of relevant case law regarding mass arrests.

5

Plaintiffs rely heavily on Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973), which dealt with

6 the validity of mass arrests in the D.C. area during the Vietnam War protests. The Court was faced

7 with a situation much like the one in the present case.

8

Generally, the issue of probable cause for an arrest is a highly individual matter,

depending both upon the specific objective conduct ofthe particular arrestee at the

9

time of his apprehension and upon the state of knowledge and reasonable belief of the

arresting officer. Ordinarily, therefore, we would have serious misgivings concerning

10

any effort to litigate the validity of several thousand separate arrests through the

mechanism of a class action.

11 In the present case, however, we are confronted by a situation in which the police did

12

not govern themselves by their ordinary procedures, which are calculated to guard a

against an arrest without probable cause, even in the case of a massive civil arrest

13

without probable cause, even in the case of a massive civil disturbance.

14

... The premise of the legal system, that unlawful arrests can be avoided or remedied

by holding individual policemen accountable, evaporated when field arrest procedures

15

were suspended and when persons other than arresting officers were permitted to

execute field arrest forms....

16 In view of the circumstances and considerations described, the protection of the

17

Fourth Amendment rights warrants not only the remedy of a class action to test the

validity ofthe arrests made during the critical May, 1971, period in connection with

18

the anti-war demonstrations but also a declaration, as a legal principle corollary to the

Fourth Amendment's legal protection, that holds presumptively invalid any arrest that

19

was not accompanied by a contemporaneous Polaroid photograph and field arrest

form executed by the one who was in fact the arresting officer, this presumption being

20

of course subject to rebuttal upon an affirmative showing by Defendants that any

particular arrest was based upon probable cause.

21 Sullivan, 478 F.2d at 966-67 (internal citations omitted, emphasis added). Defendant, meanwhile,

22 relies heavily on a later D.C. Circuit case that overturned a District Court's order enjoining the

23 District of Columbia Police Department from "instituting mass arrests without the contemporaneous

24 completion of field arrest forms or other administrative device or procedure for recording information

25 necessary to establish probable cause for the arrest." Washington Mobilization Committee v.

26

ORDER- 17

Cullinane, 566 F.2d 107, 120 (D.C. Cir. 1977). The Court described its view of mass arrest

2 procedures as follows:

3

It is the tenor of the demonstration as a whole that determines when the police may

intervene; and if it is substantially infected with violence or obstruction the police may

4

act to control it as a unit. Where demonstrations tum violent, they lose their protected

quality as expression under the First Amendment. Confronted with a mob the police

5

cannot be expected to single out individuals; the may deal with the crowd as a unit.

6

We do not suggest of course that one who has violated no law may be arrested for the

offenses of those who have been violent or obstructive. As we have seen however the

7

police may validly order violent or obstructive demonstrators to disperse or clear the

streets. If any demonstrator or bystander refuses to obey such an order after fair

8

notice and opportunity to comply, his arrest does not violate the Constitution even

though he has not previously been violent of obstructive.

9 Id. (internal citations and quotations omitted, emphasis added). The court then went on to address

10 the propriety ofthe District Court's injunction, which was founded on Sullivan. The court first noted

11 that while an arrest was presumed invalid if not accompanied by a field arrest form, that that

12 presumption could be rebutted ''upon an affirmative showing by [the prosecution] that any particular

13 arrest was based on probable cause." Id. at 121. Obviously, the court noted, "probable cause may

14 exist even though evidence of it is not recorded at the time of arrest." I d. The Court then held that

15 an order enjoining police from making arrests without a field form could not stand, as "a prosecutor

16 in the future will be entitled to an opportunity to make "an affirmative showing" of probable cause in

17 each case of a mass arrest, and the District Court erred in cutting offthat opportunity by a blanket

18 prohibition." I d. Thus the court in Cullinane did not overturn the holding of Sullivan, nor did it

19 negate the need for individualized probable cause in warrantless arrest. The Cullinane court simply

20 held that the documentation requirements outlined in Sullivan were not the only means of showing

21 that probable cause existed- the prosecution must be afforded the opportunity to show it in other

22
ways. Thus a prospective injunction mandating that specific procedures be used was inappropriate.

23 It follows logically from the above analysis that if the prosecution (or the defense in a

24 wrongful arrest case) cannot make the required affirmative showing of individualized probable cause

25 in the absence of proper documentation, the arrest is invalid. As stated above, existence of probable

26

ORDER- 18

cause can be shown based on testimony of the officers, the plaintiffs' testimony, and any other

2 undisputed facts. Dubner, 266 F.3d at 966.

3

In the present case, then, the Court must decide whether 1) the field documentation was

4 sufficient to establish justification, and 2) whether other testimony given establishes probable cause.

5 The Court notes from the outset that one key source of information that can be used to establish

6 probable cause has not been presented at all in this case, and that is the testimony of the class

7 members, in particular the absent class members. The Court is aware that the City at some point

8 moved to take discovery of the unnamed class members, but later decided not to do so. This could

9 have been an important source of information in making this determination. Those persons who have

10 submitted affidavits, as is understandable, have testified to facts tending to support a finding that

11 probable cause may not have existed.

12

The Court next examines the evidence that is before it. First, the documentation in this case is

13 atrocious. Each arrest form lists Lt. Black as the arresting officer, though he admitted in his

14 deposition that he did not perform a single arrest. Each arrest form has the same hand-written,

15 photocopied statement that says that "Susp. failed to clear street in the area of 1st and Broad to 1st

16 and Denny in accordance with Mayor order. Warning given by Lt. Black. Susp. arrested after

17 returning to refusing to leave the area. No photo taken in field due to number of arrestees." These

18 arrest forms are inaccurate, as admitted by the City's agents including Captain Pugel, in that the

19 arrests were not made pursuant to the Mayor's order, since they took place outside the no-protest

20 zone, and that Lt. Black did not give any warnings. It is clear that the police processed everyone in

21 the class, at least on paper, as if they had been arrested inside the no-protest zone. As stated in the

22 photocopied arrest form, no photos were taken because ofthe number ofarrestees.2 Thus, the

23 documents cannot be held to satisfy probable cause, and the arrests must be presumed invalid. The

24 defense would then have to show that other evidence presented establishes probable cause.

25

26

2The Court wonders how 150 arrestees is such a great number that pictures could not be taken. The D.C. Circuit effective held that this is a reasonable requirement even in the context of arresting

thousands during the Vietnam era protests.

ORDER-19

1

As to the testimony and other evidence, including the police reports regarding this incident,

2 there is absolutely no evidence relating to any individual class member. The arrest report is a general

3 description ofwhat the group as a whole did or was told. Most of this description relates to events

4 and warnings that were given long before the arrests actually took place. There is no information in

5 this report regarding any individual class member, nor is there any information about which officers 6 were present, who gave warnings (if any were given) at First and Broad, and who was involved in the

7 arrests. The officer testimony presented indicates that no officer who was actually involved in the

8 arrest has any recollection of any individual. Thus, the other evidence before the Court does not 9 provide evidence of"individualized" probable cause. The City has therefore not effectively rebutted

10 the presumption that the arrests were invalid.

11

The import of this decision is not so far reaching as it may first appear. It certainly is not a

12 declaration that mass arrests are never appropriate. Even protestors would agree that sometimes

13 mass arrest is an effective vehicle for getting a political message across through media coverage ofthe 14 arrest. This Court simply holds that when the decision to make a mass arrest is made, the arrest must 15 be properly documented in order to later make the requisite showing that individualized probable

16 cause existed to make the arrest of each person involved in the mass action. This documentation is 17 important in the later prosecution ofthe alleged wrongdoers, as well as in the defense against 18 allegations ofunlawful arrest. Without such documentation, and absent any recollection of any 19 individual arrestee by any arresting officer or the testimony of class members tending to show

20 probable cause, the City simply cannot meet its burden of showing that it had individualized probable

21 cause to arrest.

22

It is important to note that in fmding that the City did not have individualized probable cause

23 to make these arrests, or at the very least did not document it, the Court does not make a

24 determination on liability. The determination of the City's liability based on this constitutional

25 violation does not rest solely on a fmding that the violation occurs, but requires a more fundamental

26 fmding of City action as described in the section on municipal liability. In the present case, there is

ORDER-20

1 still a triable issue as to whether the actions of Captain Pugel and the officers were later ratified with

2 persons with fmal policymaking authority. Only upon an affmnative fmding on that issue will liability

3 be determined.

4

CONCLUSION

5

Having reviewed the substantial record and the briefmg submitted by the parties, and having

6 heard oral argument on the issues, the Court holds that fmal policymaking authority was not exercised

7 in the first instance, nor was it delegated to those persons who directed and carried out the arrests of 8 the class members. However, the Court fmds that there are issues of material fact as to whether the

9 actions of Captain Pugel in directing the arrests were later ratified by officials with fmal policymaking

10 authority. Finally, the Court fmds that the City has not met its burden of showing that individualized

11 probable cause existed for making the arrests of the class members.

12

The Clerk is directed to send copies ofthis order to all counsel of record.

13

Dated: December _ _, 2003.

14 Marsha J. Pechman

15

United States District Judge

16

17

18

19

20

21

22

23

24

25

26

ORDER- 21

 
 \_.-J)o-Y.·
]-:oP
The Honorable Marsha J. Pechman
2

3

4

5

6

7

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9
ROBERT HICKEY, KENNETH HANKIN, I0 JENNIFER HUDZIEC, STEPHANIE LANE,
CARROLL JACKSON, DENISE COOPER, II NICOLE PEARSON, and EMILY
MALONEY, on behalf of themselves and all 12 others similarly situated,

13

Plaintiffs,

14

v.

No. C00-1672 P PLAJNTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Noted: October 31, 2003

15 THE CITY OF SEATILE, a municipality; PAUL SCHELL, Mayor of the City of Seattle;
16 and NORMAN STAMPER, Chief of Police of the City of Seattle,
17
Defendants. 18

ORAL ARGUMENT REQUESTED

19

20

21

22

23

24

25

26

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
HlS.IO DIU ~rTN.DOC

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I
2 3 I. 4 II. 5 6
7 8 9 10 II 12 13 14
lll. 15 16 17
18
19
20
21
22 23
24
25 26

TABLE OF CONTENTS

PAGE

INTRODUCTION ............................................................................................................... ]

FACTS .................................................................................................................................2

A. The City Erects a No-Protest Zone, Outside of Which the United Steelworkers of America and Associated Groups Conduct a Peaceful March .......................................................................................2

B. The City's Officers Confront Protesters With Teargas and Munitions and Proceed to Herd Them to the Intersection of First and Broad, Where They Are Surrounded and Prevented From Leaving ...........................................................................................................4

C. The City's Officers Refuse to Let Anyone in the Surrounded Area Leave and Indiscriminately Arrest Anyone In the Area .................................8

D. Class Members Are Held For Three Days and All Charges Are Subsequently Dropped .............................................................................................9

E. All of the Class Members Are Arrested and Booked Using Identical
Arrest Records and Without Any Documentation as to What Any
Class Member Specifically Did or Did Not Do to Warrant Arrest..........................9

ARGUMENT..................................................................................................................... ] 0

A. Standard ofReview ................................................................................................ lO

B. The City Bears the Burden of Coming Forth With Evidence of Individualized Probable Cause, Which It Cannot Do ............................................ 11

I. The City bears the burden of providing individualized evidence that it had probable cause to arrest each Class member at the time of the arrest -·---------·························-··-··-·---················.11
2. The City's own procedures confirm the City's burden and the City•s failure to carry that burden ........................................................ l4

3. The City has no evidence with which to carry its burden

• •

of producing individualized evidence of probable cause........................... I..5,..

a.

The City has admitted that it has no evidence of

individualized probable cause as to any Class member ................. 15

b. The arrest records are undisputedly at least partially false and do not contain individualized evidence .......................... 16

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT .,
Case No. C00-1672 P
I4ZS.I00ll8 ~rrn DOC

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c. The Whelan Report does not contain individualized evidence of probable cause ............................................................ 17
CONCLUSION .................................................................................................................. I 8

PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Case No. C00-1672 P
I42I.IOOIJI Jo.fThl_tJOC

-11-

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I

TABLE OF AUTHORITIES

2

CASES

3 Beck v. Ohio,

379 U.S. 89,85 S. Ct. 223, 13 L. Ed. 2d 142 (1964)

4

............................................................................................................................................ 13

5 Blockv. City ofLos Angeles,

253 F.3d 410 (9th Cir. 2001) ............................................................................................. 11

6

Celotex Corp. v. Catrett,

7

477 U.S. 317, I06 S. Ct. 2548 (1986) ................................................................................ 11

8 City ofIndianapolis v. Edmond,

531 U.S. 32 (2000) ............................................................................................................. 12

9

Dubner v. City and County ofSan Francisco,

10

266 F.3d 959 (9th Cir. 2001) ............................................................................................. 12

II Franklin v. Fox,

312 F.3d 423 (9th Cir. 2002) ....................................................................................... 13, 14

12

Saucier v. Katz,

13

533 U.S. 194, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) ................................................. 13

14 Sullivan v. Murphy,

478 F.2d 938 (D.C. Cir. 1973) ........................................................................................... 13

15

Taybron v. City and County ofSan Francisco,

16

341 F.3d 957 (9th Cir. 2003) ....................................................................................... 10, II

17

18

19

20

21

22

23

24

25

26

PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Case No. C00-1672 P
1428.100121 MIN.DOC

- lll -

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1

Plaintiffs hereby move for an order granting partial summary judgment against Defendant

2 the City of Seattle ("the City") as to the City's liability for the wrongful arrest of Plaintiffs

3 Robert Hickey, Carroll Jackson, and the Class they represent, in violation ofthe Fourth and

4 Fourteenth Amendments to the United States Constitution.

5

I. INTRODUCTION

6

This motion rests on a basic principle- that when a party has a burden of production or

7 persuasion on a particular point, and cannot identify a single fact that would assist it in carrying

8 its burden of production or persuasion, the opposing party is entitled to summary judgment on

9 the issue in question. Plaintiffs Robert Hickey, Carroll Jackson, and the Class they represent1

10 allege that the City wrongfully arrested them in violation of their rights to be free from

II unreasonable searches and seizures. In defending against those allegations, because this is a

12 wrongful arrest case, the City bears the burden of producing evidence that demonstrates it had

13 probable cause to arrest each Class member. However, the City cannot carry its burden, because

14 it is undisputed that the City lzas no sucll evidence. A trial on the City's liability for wrongful

15 arrest is entirely unnecessary, since the City has no evidence to introduce that would help it to

16 carry its burden. Accordingly, there is no genuine issue of material fact regarding the City's

17 liability for the wrongful arrest of the Class. Plaintiffs Robert Hickey and Carroll Jackson, and

18 the Class they represent, are entitled to partial summary judgment on the issue of the City's

19 liability under their claims of wrongful arrest in violation of the Fourth and Fourteenth

20 Amendments to the United States Constitution. Plaintiffs do not seek summary judgment as to

21 their First Amendment claims and related state-law freedom-of-speech claims, nor as to issues of

22 ..damages. 23'

24

1 Pursuant to this Court's order ofNovcmber 5, 2002, fmaljudgrnent was entered under Fed. R. Civ. P. 54(b) against most of the other Plaintiffs named in this case- Kenneth Hankin, Jennifer Hudz.iec, Stephanie Lane, Jennifer

Hudziec, Denise Cooper, and Nicole Pearson, as the Court's previous rulings had extinguished their claims. See
25 Exhibit I to Declaration of Tyler S. Weaver in Support of Plaintiffs' Motion for Panial Summary Judgment. Those

Plaintiffs have appealed to the Ninth Circuit Court of Appeals and are not currently before this Court. Plaintiff

26 Emily Maloney is not a Class representative, nor a member of the certified Class, and the parties have reached
agreement as to the settlemenl of Mrs. Maloney's claims.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
1•11_10 OIUI MTN_DOC

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II. FACTS

2

In broad summary, this case is about the arrest of a Class of approximately 150 people,

3 many of whom were peaceful protesters that had been chased by Seattle police through the city

4 streets for up to a mile before the police gassed them, shot them with "less lethal" munitions such

5 as rubber pellets, prevented them from leaving, and arrested them. Other Class members were

6 unfortunate passersby who followed police orders to join those who had been herded together,

7 and were then arrested en masse and without any concern for probable cause. Indeed, the City

8 and its officers failed to record or document a single fact that indicated that they had probable

9 cause to arrest any Class member, instead treating them as a homogenous group subject to the 10 same charges. The following is Plaintiffs' summary of the facts of this case.2

II A.
12

The City Erects a No-Protest Zone, Outside of Which the United Steelworkers of America and Associated Groups Conduct a Peaceful March

On the morning ofDecember I, 1999, the World Trade Organization, ("WTO"), was 13

convened in downtown Seattle for a series of meetings that had commenced on NovemberJO, 14

15 1999. That morning, in an attempt to keep the WTO meetings on track following a day of

16 widespread protest on November 30, the City of Seattle had declared a large portion of

17 downtown Seattle off-limits to all protest. This area, known as the 'No-Protest Zone," had 18 borders that ran from 41h Avenue eastward to Interstate 5, and from Seneca northward to Pine in

19 one area, and Lenora in another. See Declaration of Tyler Weaver ("Weaver Decl."), Ex. 31

20 (mayoral order creating Zone). Those allowed into the Zone included WTO delegates, media,

21 city employees, business owners, downtown residents, and downtown workers- in short,

22 virtually every imaginable group other than protesters. See id. A

23

24

2 Plaintiffs recognize that there are likely to be disputes between the parties as to certain of these facts, and that

the City will likely attempt to dispute many of these facts in its opposition to this motion. However, this statement
25 of facts is necessary for the Court to understand the factual background to this case and this motion. Moreover, the

fact that is central to this motion- that the City has no individualized evidence of probable cause for any Class

26 member- is entirely undisputed. Therefore, there is no genuine issue ofVJaterial fact that prevents the granting of
Plaintiffs' motion.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
H21.100121MTN DOC

-2.

BosTON Los AliCII.~II.S Pnoii.NIX S11..o.rr1.11 IJOI FlJTH.O."""'. WI'T'I!1'100 •Sutn.l.. WA 91101
TEUPIIONI (106) 611·Tl9J • FACSU•UI.E (106) 611.0],1

I

The Zone was widely publicized and enforced by Seattle police, the National Guard, and

2 other police departments from around the State, including the Washington State Patrol. As Ed

3 Joiner of the Seattle Police Departrrient declared that day to the national media, "Anyone who

4 goes into that area to protest will be arrested immediately." Ex. 32 to Weaver Decl., p. 2. Tills

5 was not an empty threat; hundreds of peaceful protesters were in fact arrested on December I, 6 1999, for violating the boundaries of the No-Protest Zone.3

7

A reasonable asswnption was that if protest was banned in the No-Protest Zone, it was

8 permitted elsewhere. In fact, the Court's prior order declaring the No-Protest Zone constitutional

9 was based in large part on the fact that the Court concluded that the City had not banned protest 10 throughout the entire City, and had left areas outside the Zone open to peaceful protest. See II October 29, 2001, Order, at pp. 16-17, Ex. 2 to Weaver Dec!..

12

It was against this backdrop that a substantial number of anti-WTO demonstrations took

13 place on December I outside the Zone, in full compliance with the mayoral order that had set the

14 boundaries of the Zone. One of the largest that day was a march sponsored by the United

15 Steelworkers of America that began at the Labor Temple at the intersection of First Avenue and

16 Broad Street in Seattle, and ended with a rally on the Seattle waterfront. See Weaver Decl., Ex.

17 33 (permit for Steelworkers march). The Seattle waterfront, and hence the rally and the course

18 of the march, were outside the No-Protest Zone. See Weaver DecL, Ex. 31 (boundaries of Zone).

19 As that rally came to a close in the mid-afternoon of December 1, several hundred of those

20
21
22
••
23
24

present at the rally continued their protest by marching up the Pike Place Market hillclimb and into the area near the Market- all of which was outside the Zone. See, e.g., Declaration of Michael Anderson,~~ 3, 4; Declaration of Max Beagarie, ~~ 2, 3; Decla,Jiation ofNancy Egan, ~~ 3, 4; Declaration ofNathaniel Eli Hastings,~~ 3, 4; Declaration of Robert Hickey,~ 3

25

26

3 This included several of the Plaintiffs in this case other than Hickey and Jackson. Those Plaintiffs' claims are

now on appeaL See footnote I.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY ruDMGENT Case No. C00-1672 P
142!.10012! MTN.OOC

-3-

BOlTON Loo AHOEL.f.l PHOI!HU: SllATTLI 1)01 FD-n111""""'- SUITEJIIOO. Sunu. Wll 01101
TE.LEPifQtiE 1106) O>l-1JIIl • FACSIMilE U061 6Jl-oJ"

(attached as Ex. 3 to Weaver Decl.); Declaration of Jonathan Moore,,~ 2, 3 (attached as Ex. 5 to
2 Weaver Dec!.), Declaration of Jonathan Rosenblum,~ 3.

3 B.
4

The City's Officers Confront Protesters With Teargas and Munitions and Proceed to Herd Them to the Intersection of First and Broad, Where They Are Surrounded and Prevented From Leaving

5

The Seattle Police responded to calls that there were protesters in the area near the

6 Market, and the result was a group of confrontations at various locations in the area,

7 confrontations that all had a common theme. At the intersections of Third and Pine, Second and

8 Pike, and First and Pike, protesters and others encountered police lines and large groups of police

9 who teargassed the crowd- without any prior warning or order to disperse- and shot various

10 projectiles into the crowd, including rubber bullets and concussion grenades. See, e.g., Beagarie

II Decl., ~ 3 (Third/Pine); Declaration of Estelle Davis,~~ 6, 7 (First/Pike); Egan Decl., ~ 4

12 (approx. Third/Pine); Hastings Decl., ~ 6 (Third/Pine); Hickey Decl., ~ 3 (Second or Third and

13 Pike) (attached as Ex. 3 to Weaver Decl.); Moore Decl., ~ 3 (attached as Ex. 5 to Weaver Decl.)

14 (Second/Pike); Rosenblum Decl., ~~ 3-6 (Second/Pike).

15

To assist the Court in orienting itself to these points of initial conflict, and the ensuing

16 events discussed, below the following is a partial map of downtown Seattle depicting the streets

17 and intersections discussed in this brief and the related exhibits:

18

19

20

21

22

.•

23

24

25

26

PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Case No. C00-1672 P
1428.10 ous M1N llOC

-4-

Bo•TON Lo• ANOIILIIS PHOIINJ% .SII .. TTLII
llOI Fomo """"""- SIIITE JtOQ • S<..TTU. w.. ftiOI
T£LEI'HO!<ECJ(Il;161l·7l0l ·fA~SIMILE(I(Il;) 011..01,.

2 3 4 5 6 7 8 9 10
II
12
13
14 15 16 17 18 19 20 21 22 23 24 25 26
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
14lB 100121MTiiDOC

.~

- 5-

BoSTON Lao AHOIILIU PnOIINil< 5JtATTLII 1101 rlnH ~""""- SlJITEl... •S..rn..l.. WA ,1101
TElEI'IIO>IE (l06)61l-7l91 • FACSIMilE (l06)61HlJ"

I

It is undisputed that at each location where the groups of protesters initially confronted

2 police, the groups left the area upon being shot at and gassed. See, e.g., Deposition of Lt. Dan

3 Whelan, nt 18:25- 19:20, Ex. 27 to Weaver Decl.; Deposition of Sgt. Fred Ibuki, nt 17:12 - 19, 4 Ex. 26 to Weaver Decl.. The crowd remained peaceful, despite being attacked. See, e.g., Ibuki

5 Dep. nt 27:12- 24, 39:19- 25. See also Anderson Dec!.,~~ 5, 7; Beagarie Dec!.,~ 9; Davis 6 Decl., ~ 23; Hastings Decl., ~ 12; Declaration of Sarab Kerr,~ 4; Moore Dec!.,~~ 3, 4 (attached

7 as Ex. 5 to Weaver Decl.); Rosenblum Decl, ~ 7. However, the protesters were unable to gel 8 away from the police, who continued to pursue them as they left the area. See, e.g., Anderson

9 Decl., ~~ 6-8; Beagarie Dec!.,~~ 4, 5; Egan Dec!.,~ 4; Hastings Dec!.,~~ 7-ll; Kerr Decl., ~~ 310 6. As the only police report ever generated with regard to this incident confirms, the intent of the 11 police was to drive the protesters to the north, trap them, and arrest them:

12

A MOVING CONFLICT ENSUED WITH THE CROWD

13

ATTEMPTING TO CONTINUE SOUTH, OUT OF CONCERN FOR THE SECURITY OF THE WTO AND THE DOWNTOWN

14

AREA THAT WAS DEVASTATED THEDAY BEFORE BY ANTI-WTO RIOTERS, IT WAS DECIDED TO MOVE THE

CROWD NORTH AND ATTEMPT TO FIND AN AREA

15

WHERE THE CROWD COULD BE CONTAINED AND

ARRESTED. 16

17 Ex. 22 to Weaver Decl., at p. 2. According to Captain Jim Pugel, who was directing this action,

18 the officers' goal was to "comer" the proteSters. Deposition of Capt. Pugel, at 261:25-262:2,

19 Ex. 23 to Weaver Decl. That is precisely what the police did.

20

The incident report once again provides a succinct description of what the police did:

21

THE CROWD WAS FOLLOWED AND MANAGED TO TilE AREA OF ISTAND CLAY. AGAIN CHEMICAL AGENTS

22

AND LESS LETHAL WEAPONS WERE DEPLOYED. THE CROWD WAS STOPPED, SURROUNDED BY OFFICERS,

.•

23

AND TAKEN INTO CUSTODY.

24 Ex. 22 to Weaver Decl., at p. 3. More precisely, from approximately the intersection of First

25 Avenue and Pike Street, the police pursued multiple groups of people northward on Western and

26 First Avenues, ultimately pushing them all onto First Avenue. See, e.g., Deposition of Lt. Landy

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
l~lB.I!IOilS MlNDOC

-6 -

Bo~TON Loo 1\NOIIJ.Bo P11ouou: S><ATTL• 1:101 FIJ'TH """""'- S\IITE 1""" • StATIU.. WA •1101
TELEPUONE U""l Oll-7ln o FACSIMILE (11>&) UJ-<IJU

1 Black, at 40:8-41:9, Ex. 24 to Weaver Decl. (multiple groups herded simultaneously); 1buki

2 Dep., at 26:3- 14, Ex. 26 to Weaver Decl. (distinct groups on Western). See also, e.g.,

3 Anderson Dec!.,~ 7; Beagarie Decl., ~~ 7, 9; Egan Decl.,, 4; Hastings Dec!.,~~ 9, 10; Kerr

4 Dec!.,~~ 4, 5; Moore Dec!.,,, 4, 6 (attached as Ex. 5 to Weaver Decl.). This was a coordinated

5 effort that Capt. Pugel choreographed over police channels. Those communications confirm that

6 officers were told to the groups moving them north, and to use various munitions to direct the

7 crowd to the desired location. See, e.g., Ex. 3 to Declaration ofTricia Sexton (attached as Ex. 6

8 to Weaver DecL), at pp. 8 ("use the pepper and the stingballs to drive them west"); 10 (seeking

9 "as many available CART units north on Third and Fourth and try to block any street up to

10 [Denny] to prevent them from going eastbound''); 11 (directing units to come westbound to First

11 Avenue from Second).

12

As they moved northward followed by police, several members of the various groups

13 attempted to leave First Avenue via cross streets but officers who were lining or filling those

14 cross streets prevented them from doing so. See, e.g., Anderson Decl., ~8; Davis Decl., ~ 13-16,

15 20; Egan Dec!.,~ 4; Hastings Decl.,, I 0; Kerr Decl., ~ 6; Moore Decl., ~ 4 (attached as Ex. 5 to

16 Weaver Decl.). lbis went on for many, many blocks. Although several members of the crowd

17 had initially encountered police at Third and Pine and had attempted to evade them via a path

18 that took them through the area around Pike's Place Market, officers pursued them for

19 approximately 14 or 15 blocks (away from downtown and the No-Protest Zone) until the crowd

20 neared the Labor Temple, where the Steelworkers' march had commenced earlier that day.

21

At the intersection of First Avenue and Broad Street (where the Labor Temple is located),

. 22 the police• Iwmmed the crowd in, blocking them from their attempts ofcontinuing to leave the
23 area by bringing in a squadron of officers from the north, thereby trapping them between two

24 police lines. See, e.g., Capt. Pugel Dep., 278:16-279:4, Ex. 23 to Weaver Decl.; Ex. 6 to

25 Weaver Decl., at p. 12 (police communications documenting desire to '"keep them from going

26 north on First from Broad"). See also Egan Decl., ~~ 5, 9; Hastings Decl, ~ 14; Moore Dec!.,~ 4

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY nJDMGENT Case No. C00-1672 P
H2B.I0012aMTNDOC

- 7-

Bo•ro>< Lo• AN<JI!LBS PHOI!Nll< Slr.,.TTLB llOI Ftmt ..'-'11'11<. WI'1'E :100 • SIATTU. '0/.. 91101
lELEPHON'E (l06)6H·7Ul •FACSIMILE (>06) 61J-<l!91

Black, at 40:8- 41 :9, Ex. 24 to Weaver Decl. (multiple groups herded simultaneously); lbuki

2 Dep., at 26:3-30, Ex. 26 to Weaver Decl. (distinct groups on Western). See also, e.g.,

3 Anderson Decl., ~ 7; Beagarie Decl., ~~ 7, 9; Egan Decl., ~ 4; Hastings Decl., ~~ 9, I 0; Kerr

4 Decl., ~~ 4, 5; Moore Decl., ~~ 4, 6 (attached as Ex. 5 to Weaver Decl.). This was a coordinated

5 effort that Capt. Pugel choreographed over police channels. Those communications confirm that

6 officers were told to the groups moving them north, and to use various munitions to direct the

7 crowd to the desired location. See, e.g., Ex. 3 to Declaration ofTricia Sexton (attached as Ex. 6

8 to Weaver Decl.), at pp. 8 ("use the pepper and the stingballs to drive them west"); I0 (seeking

9 "as many available CART units north on Third and Fourth and try to block any street up to

10 [Denny] to prevent them from going eastbound"); 11 (directing units to come westbound to First

11 Avenue from Second).

12

As they moved northward fo1lowed by police, several members of the various groups

13 attempted to leave First Avenue via cross streets but officers who were lining or filling those

14 cross streets prevented them from doing so. See, e.g., Anderson Decl., ,8; Davis Decl., ~ 13-16,

15 20; Egan Decl., ~ 4; Hastings Decl., ~ I0; Kerr Decl., ~ 6; Moore Decl., ~ 4 (attached as Ex. 5 to

16 Weaver Decl.). This went on for many, many blocks. Although several members of the crowd

17 had initially encountered police at Third and Pine and had attempted to evade them via a path

18 that took them through the area around Pike's Place Market, officers pursued them for

19 approximately 14 or 15 blocks (away from downtown and the No-Protest Zone) until the crowd

20 neared the Labor Temple, where the Steelworkers' march had commenced earlier that day.

21

At the intersection of First Avenue and Broad Street (where the Labor Temple is located),

. 22 the police hemmed the crowd in, blocking th..ew from their attempts of continuing to leave the
23 area by bringing in a squadron of officers from the north, thereby trapping them between two

24 police lines. See, e.g., Capt. Pugel Dep., 278:16- 279:4, Ex. 23 to Weaver Decl.; Ex. 6 to

25 Weaver Decl., at p. 12 (police communications documenting desire to "keep them from going

26 north on First from Broad"). See also Egan Decl., ~~ 5, 9; Hastings Dec!,~ 14; Moore Decl., ~ 4

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
l4l8J00!2aMTNl>OC

-7-

Bo~TOJ< Loa ArHIBLKS P)IOJIJ<lK SBATTLK JlOJ FlnHAVIMI<. SUITE l'IOO • S<ATTU. WA fiiO!
TEI.EP>lON~ (]06) 61Mlfl • FACSIMILE (>06) 021 "''"

(attached as Ex. 5 to Weaver Decl.); Rosenblum Decl., ~ 10. The crowd was blocked from

2 continuing northward, in part by the use of an armored vehicle that came southward from Denny,

3 from which several officers launched "stinger grenades" toward the crowd. See, e.g., Deposition

4 of Officer Thomas Burns, 90:2-91:13, Ex. 25 to Weaver DecL

5

At some point in the area of First and Broad, an officer indicated the crowd could leave

6 the area, but as soon as they attempted to go the direction that officer had indicated, another

7 group of officers fired "less lethal" munitions at them and did not allow them to leave. See, e.g., 8 Anderson DecL, ~ 9; Egan DecL, ~~ 5, 6, 9; Hastings DecL, ~~ 16-18; Declaration of Carroll 9 Jackson,~ 4 at pp. 3-4 (attached as Ex. 4 to Weaver Dec!.); Kerr DecL, ~ 7. Those surrounded

10 were ordered to sit down, and did so. They were not allowed to leave the area again before being

11 arrested- even if they asked to do so. See, e.g., Black Dep. at 36:16-37:2, Ex. 24 to Weaver

12 DecL; Beagarie DecL, ~ 10; Egan DecL, ~ 5; Hastings DecL, ~ 15; Hickey DecL, ~ 4 (attached as

13 Ex. 3 to Weaver DecL); Jackson Dec!., ~ 4, p. 4 (attached as Ex. 4 to Weaver DecL); Kerr DecL,

14 F.

15 c.
16

The City's Officers Refuse to Let Anyone in the Surrounded Area Leave and Indiscriminately Arrest Anyone In the Area

17

However, the officers did not limit themselves to arresting only the people they had

18 herded toward First and Broad. Instead, it is undisputed that there were several individuals who

19 had no association with the group that were ordered to join the crowd and indiscriminately

20 arrested along with the others. See, e.g., Egan Decl., ~ 6; Hastings Decl., ~ 15; Hickey Decl.,

21 ~~ 4, 6 (attached as Ex. 3 to Weaver Dec!.); Jackson DecL, ~ 4, p. 4(attached as Ex. 4 to Weaver

22 Decl.). Footage taken at the scene of the mass arrest dramatically documents the police's refusal

A

.A

2:i to let even those sitting apart from the group leave the area upon their requests to do so. See

24 Declaration of Robert Hickey in Support of Plaintiffs' Motion for Partial Summary Judgment,

25 Ex. 1. There was no attempt made to distinguish between those herded and those who were

26 unfortunate enough to find themselves in the area when police surrounded it.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
l~2B.LO~llS MTNDOC

- 8-

BosTD>< Loa A><OI!L~f Pnoll><ll< S.l./lTTLII
IJOI ftnnll•~X~<. SUI""I£ I""' •S..nu. WA PliO I
TELEPL!ONE (106) ~11·1101 •fACSLMLLE(l06)<1J.<I)04

1 D.
2

Class Members Are Held For Three Days and All Charges Are Subsequently Dropped

The surrounded group was eventually arrested and carted off on transit buses for booking 3

at the Sandpoint Naval Facility, which was being used to process arrestees during the WTO 4

meetings, and then jailed. The vast majority of the Class members were jailed for three days. 5
See, e.g., Egan Decl., ~ 7; Hastings Decl., ~ 27; Hickey Decl., ~ 6 (attached as Ex. 3 to Weaver 6
Decl.); Jackson Decl., ~ 7 (attached as Ex. 4 to Weaver Decl.); Kerr Decl., ~~ 11-13. Cf 7

Anderson Decl., ~~ 16-17 (kept only one day due to medical condition). However, to Plaintiffs' 8

knowledge, not a single member of the Class ever faced prosecution on any charges arising out
9

of this arrest, and the City dropped all charges against the Class members. See, e.g., Anderson 10

Decl., ~ 18 Egan Decl., ~ 8; Hastings Decl., ~ 28; Hickey Decl., ~ 7 (attached as Ex. 3 to Weaver
11
Decl.); Jackson Decl., ~ & (attached as Ex. 4 to Weaver DecL). Approximately 150 people were 12

held for as long as tluee days (roughly until the WTO meetings stopped and the delegates left 13

town) without ever facing charges. 14

E. 15 16

All of the Class Members Are Arrested and Booked Using Identical Arrest Records and Without Any Documentation as to What Any Class Member Specifically Did or Did Not Do to Warrant Arrest

17

Even though the City had arrested roughly 150 people, and kept them in jail for as long as

18 3 days, the City's documentation of the arrests is sparse at best. As described in greater detail in

19 section III.3 of this motion, the City treated every single one of its 150 arrestees in exactly the

20 same fashion, using photocopied arrest records and explanations for arrest. As this Court

21 observed when certifying the Class, "the ... class members were arrested together at the same

-.• 22 general location, for the same alleged violation, and they were booked on the same charge." Ex.
23 1 to Weaver Dec!., at pp. 9-10! The City did not record in any Class member's arrest record any

24 individual-specific information about what any arrestee had done, not done, seen, or heard, that

25 might have justified arrest. The City did not even record which officer had arrested which

26 person. See Weaver Decl., ,, 9-17 (describing arrest records) and Exs. 7 to 21 (illustrative

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
HlJ.HIOIJI MTN.DOC

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BOSTON Loll AHOIILII5 PIIOIIHU: SIIATTLII IJOI Ftm!A.......,._ SIIITE HOO•S...nu. WA 11101
TUEI'IIONE(><I,)61l•7>1l ·fAC51Mll.E (l06) 6ll-<>J..

arrest records and table summarizing all 140+ arrest records). As described below, even the

2 photocopied arrest records that the City did use are undisputedly false in several respects.

3

Moreover, even though this arrest involved approximately 150 civilians and dozens of

4 police officers, the City prepared only one report summarizing the incidents resulling in the mass

5 arrest. That three-page report, attached as Exhibit 22 to Weaver Decl., does not discuss any

6 particular arrestee, much less what any person did to justify being arrested and detained for three

7 days.

8

To this day, the City cannot identify any fact that would support a finding that the City

9 had probable cause to arrest any individual, beyond discussing in broad terms what the Class

10 members allegedly did "as a group." In its initial answer to Plaintiffs' Interrogatory No. 11, in

11 which Plaintiffs sought all facts constituting probable cause to arrest any Class member, the City

12 refused to answer for individuals but gave a description as to what the arrestees had done "as a

13 group." See Ex. 28 to Weaver Decl., at p. 6. More recently, in its opposition to Plaintiffs'

14 motion to compel an answer to that interrogatory as to individuals, the City indicated it should

15 not be required to respond further because it had no additional information, and "all of the

16 information [the City has] relevant to Interrogatory No. 1I was contained in the individual arrest 17 records." Weaver Decl., Ex. 29, p. 9.4 Yet, as described in detail in section III.B.2.b ofthis

18 motion, tltose arrest records contain no individualized evidence of probable cause, and are

19 identical for each Class member. The City has no individualized evidence of probable cause.

20

Ill. ARGUMENT

21 A. Standard of Review

22

On summary judgment, this Court's role is determine whe,ther t!tere is any genuine issue

23 of material fact such that trial would be necessary to resolve that issue of fact. See, e.g., Taybron

24 v. City and County ofSan Francisco, 341 F.3d 957, 957 (9th Cir. 2003). In this case, the issue is

25

26

4 The Court has since compelled a further, complete answer to Interrogatory No. 11 as to individuals. As of the

filing of this motion, the City has not yet provided that additional answer.

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY ruDMGENT
Case No. C00-1672 P
142S.]O 011! MTN DOC

· I0 ·

I-1.\GE~S BER.i\l.\N LLP I

I

lllvr>H)> alI rill'

I

BoaTON Loa A><O•L•.S PuoBNIX s .. ATTLB llOI flm!A,..,..,., SUITE 11103 •SL.tn..l. WA n101
TEIEI'IlOIIE (IOol)6lJ·7l9l • FACSIMILE (><>6)&11..,.,1

1 whether the City can produce evidence that it had probable cause to arrest any Class member.

2 On that issue, it is the defendant- the City- that bears the burden of production. As described

3 below in Section lll.B.l, this unusual assignment of the burden of production is the result of the

4 fact that Plaintiffs claim they were wrongfully arrested. Therefore, Plaintiffs' burden on this

5 motion is to demonstrate that the City "does not have enough evidence to carry its burden at

6 trial." Blockv. City ofLos Angeles, 253 F.3d 410, 416 (9th Cir. 2001 }, citing Nissan Fire &

7 Marine Ins. Co. v. Fritz Companies. Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once Plaintiffs

8 make such a showing, the City has the burden of providing "specific facts showing that there is a

9 genuine issue for trial" as to whether the City had individualized probable cause to arrest any

10 Class member. Ce/otex Corp. v. Catrett, 477 U.S. 317,322, 106 S. Ct. 2548,2552 (1986).

II B.
12

The City Bears the Burden of Coming Forth With Eviden-ce of Individualized Probable Cause, Which It Cannot Do

The law is clear that the City,like any defendant in a wrongful arrest case, has the burden 13

of producing evidence that at the time it arrested the Class members, it had individualized 14

probable cause to do so. The law is so clear, in fact, that the City's own guidelines for 15

documenting mass arrests confirm that it is not enough to arrest a group of people and then claim 16

that they all did or did not do the same thing. See infra, Section 11LB.2. However, in this case, 17

the City failed to follow its own guidelines, and as a result has absolutely no evidence of 18

individualized probable cause that it could introduce at trial. As a matter oflaw, the City cannot 19

carry its burden of production and therefore Plaintiffs are entitled to summary judgment as to the 20

City's liability under the Fourth Amendment. 21

22

l. The City bears the burden of providing individualized evidence that it had probable cause to arrest each Class member at the time of the arrest

••

23

At trial, the City would bear the burden of producing evidence that, at the time of the

24 arrest. its officers had probable cause to arrest each Class member. This is a burden to produce

25 evidence specific to each Class member that demonstrates the City had probable cause to arrest

26 that Class member.

PLAINTIFFS' MOTION FOR PARTIAL
SUMJ\.1ARY JUDMGENT Case No. C00-1672 P
1~11100121 MTN.POC

- II -

I HAGE~S BER,IA. LLP I
BosrON Loa ANQIIL•s PHO.Nil< SB.O.TTLB llOI fi>'T>I.O.YDOJ:(,. 5Unl! noo • S...TTLI. W.O. .. 101
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I

The nature of the City's burden, and the consequences of failing to carry that burden,

2 were most recently outlined by the Ninth Circuit in Dubner v. City and County ofSan Francisco,

3 266 F.3d 959 (9th Cir. 2001). In Dubner, the plaintiff was arrested while acting as a legal

4 observer at a demonstration in downtown San Francisco. See id. at 961. At some point, the

5 demonstrators were determined to be trespassing or in violation of police orders and were

6 arrested as a group that included Dubner. See id. at 963. At trial it became clear that the person

7 listed as the arresting officer did not know Dubner and had not arrested her, that there was no

8 record of who had arrested Dubner, and that the defendants could not produce any evidence that

9 they had probable cause to arrest Dubner. See id. at 964. The trial court ruled in favor of the

10 defense, on the erroneous ground that Dubner bore the burden of proving that the officers did not

II have probable cause to arrest her. The Ninth Circuit reversed, holding that a defendant in a

12 wrongful arrest case must- at a minimum- "provide some evidence that the arresting officers

13 had probable cause for a warrantless arrest" because "the police department ... is in the better

14 position to gather information about the arrest." ld at 965. As the court elaborated:

15

[D]efendants had the burden of producing some evidence that the

16

arresting officers had probable cause. None of the officers testified to having seen Dubner during the demonstration, much less to

having seen her break the law. .. . [T]here is no indication that

17

any of the police officers at the [scene of arrest] witnessed Dubner

violate any laws or communicated any information regarding

18

Dubner to the arresting officers. Based 011 the Iota/lack of

evidence as to who arrested Dubner or what/hey knew a/the

19

lime, itfollows that tl1e defendants failed to satisfy their burden

ofproduction and that Dub11er has made out a claim of unlawful

20

arrest.

21 Id. at 966 (emphasis added). Thus, in this case, the City at a minimum bears the burden of
22 coming forth with ~v.idence that it had probable cause to arrest each Class member. Mere

23 evidence as to what a group of people might or might not have done is insufficient; "a search or

24 seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing."

25 City ofIndianapolis v. Edmond, 531 U.S. 32, 37 (2000).

26

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
1428.1~0123 MTNOOC

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BoOTON Lo~ fiND IlLilS PH OliN I>< S><ATTLI! 1:101 FlrT• ........,._ SUITE 1000 • S<Arru. WA OliO]
T:EL.EPIIONE (lOol) 611-7>91 • FACSIMILE (lOol) ~11·01..

To put this burden in further perspective, as one court has stated, when a mass arrest is so
2 poorly documented that even not even the arresting officer is properly stated on an arrest record,

3 the arrests made are "presumptively invalid." Sullivan v. Murphy, 478 F.2d 938, 967 (D.C. Cir.

4 1973) (emphasis added). In Sullivan, police arrested hundreds of protesters in the nation's

5 capitol without recording any individualized basis for arresting many of those protesters and

6 without recording the name of the arresting officer. In the resulting class action brought on

7 behalf of those individuals, the District of Columbia Circuit declared that the Fourth Amendment

8

holds presumptively invalid any arrest that was not accompanied

by a contemporaneous Polaroid [of the officer and arrestee

9

together] and field arrest form executed by the one who was in fact

10

the arresting officer, this presumption of being course open to rebuttal upon an affirmative showing by Defendants that any

particular arrest was based upon probable cause. 11

12 Jd. There, as here (and demonstrated below), where the arrest records are so entirely void of

13 individualized probable cause, the entire arrest must be assumed improper unless the City can

14 produce evidence of probable cause.

15

Furthermore, the City's burden is not to show that it might be able to construct

16 individualized probable cause now, almost 4 years later, but rather to show that its officers had

17 probable cause to arrest each Class member at the time the arrests were made. As the Supreme

18 Court stated nearly 40 years ago:

19

Whether [an) arrest was constitutionally valid depends ... upon whether, at the moment the arrest was made, the officers had

20

probable cause to make it-- whether at that moment the facts and circumstances within their knowledge and of which they had

21

reasonably trustworthy information [gave rise to probable cause].

22 Beck v. Ohio, 379 U.S. 89, 91, 85 S. Ct. 223, 13 L. Ed. 2d 142 (1964) (emphasis added), citing ~
23 Brinegar v. United States, 338 U.S. 160, 175-76 (1949). See also, e.g., Saucier v. Katz, 533 U.S.

24 194,207, 121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001) (claims of violation of the Fourth

25 Amendment tum «upon the information the officers had when the conduct occurred."); Franklin

26

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY mDMGENT Case No. C00-1672 P
1426.100128 Jo.rrn'.POC

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1]01 f""""-""""- SUITE :noo •SLonu;,. W"- •1101
TELEP!IO>IE (206) 61M201 • f"-CSIMILE (206) 61).0!9•

1 v. Fox, 312 F.3d 423, 439 (9th Cir. 2002) (claim of wrongful arrest turns on "what information

2 the officers possessed at the time of ... arrest").

3

Thus, the City's burden is produce evidence that its officers had individualized probable

4 cause to arrest each Class member at the time ofthe arrests. Yet as demonstrated below, the

5 City has always treated the Class members as a homogenous group and cannot produce any

6 evidence specific to any Class member.

7

2. The City's own procedures confirm the City's burden and the City's failure

to carry that burden 8

9

If the law leaves any doubt as to what the City's burden is in demonstrating probable

10 cause, or as to what sort of documentation of probable cause is necessary to justify an arrest, the

II City itself has resolved that doubt. In the City's Proceduresfor Use in Selected Offenses Against

12 Public Order, the City has adopted guidelines for documenting probable cause to arrest large

13 groups of people that the City contends have committed certain offenses. Weaver Decl., Ex. 30,

14 p. I,§ I. As those guidelines make clear, the City cannot satisfy its burden ofjustifying an arrest 15 by lumping a large group of arrestees (in this case approximately 150 people) together and not 16 noting or recording any basis for arresting each person:

17

To convict a suspect of Pedestrian Interference or Failure to

Disperse requires, as with other crimes, that the prosecution prove

18

the individual suspect committed the acts in question.

19

This requires not only that the officer-witness be able to identify

the defendant in court, but that the officer be able to docwnent and

20

testify as to specific acts committed as to a specific individual,

which meet all the elements necessary to prove the crime. Thus,

21

documentation ofacts commilled by the crowd in general, while

relevant and helpful, are by themselves not sufficientfor the

22

charging and conviction ofindividual members ofthe crowd.

Each individual's specific involvement and ~ctitJJ:s must be

23

documented. A ''generic" report concerning an incident will not

be sufficient.

24

Weaver Decl., Ex. 30, pp. 6-7, § ll.B.3 (emphasis added). See also id.. p. II, § ill.B.9 ("Officers
25

should remember that it must be established that each suspect committed the crime(s) in

26

PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Cnse No. CQQ.J672 P
141!.10012! MTN DOC

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TllUJIONE (lo.\) 6ll·T.I9l • FACSIMILE (:106) 6]).<11"

1 question. Thus, reports should document facts to establish elements of the crime as they relate to

2 that suspect.").

3

In order to ensure accuracy, the City also strongly encourages that the officers work

4 together to prepare a complete report and document probable cause. As the procedures indicate,

5 "[t]he Field Commander or hislher designee on the scene should prepare the master report.

6 Before doing so, he/she should speak with each of the officers on the scene, so that no important

7 details are left out. Each arresting officer should prepare hislher supplemental report." !d., p. 12,

8 § IV.B. However, as demonstrated below, the City failed to follow even its own guidelines. The

9 City's officers made absolutely no record of what any Class member did or heard or even who

10 arrested the Class members. Furthermore, the only docwnentation of the arrest is a "generic" 3-

11 page report regarding what the Class did as a group- a report that was prepared without input

12 from the arresting officers and is not supplemented by reports of the actual arresting officers.

13

3. The City has no evidence with which to carry its burden of producing

individualized evidence of probable cause 14

15

The City has no evidence at its disposal that it could use to carry its burden of producing

16 individualized evidence of probable cause. The City has admitted in discovery that it crumot 17 specify any facts constituting probable cause to arrest any Class member. The only

documentation of probable cause that the City can point to is the arrest records ofthe Class
18
19 members- which are virtually identical for each Class member- and an incident report prepared

20 to describe the arrest, which provides only cursory general information as to the events leading to thls mass arrest.
21

22

a. The City bas admitted that it has no evidence of individualized

probable cause as to .any Class member

.....

23

It is evident from the City's responses to Plaintiffs' discovery requests that the City has

24 no individualized evidence of probable cause. For example, in response to Plaintiffs'
25 Interrogatory No. 11, which requested that the City, "[f]or each member of the Class, list all facts 26 that could support a finding that any officer had probable cause to arrest that Class member on

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
H28.100I21MTIU>OC

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Bon·oN Lo• i\lOOJILB! PIIOJINlll SllATTt.•
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1 the afternoon of December 1, 1999, for the commission of a crime." Weaver Decl., Ex. 28, p. 6.

2 The City's answer was that the officers had probable cause to arrest them as "a group" but that

3 the City was "unable to discuss specific members of the Class'' for alleged privacy reasons. ld.

4 In opposition to Plaintiffs' second motion to compel an answer as to individuals for this

5 interrogatory (a motion this Court granted on October 3, 2003), lhe City further stated that «all of

6 the information [the City has) relevant to Interrogatory No. II was contained in the individual

7 arrest records." Weaver Decl., Ex. 29, p. 9. However, those arrest records- as discussed in the

8 following section- are inaccurate and do not contain individualized evidence of probable cause.

9 While the City has yet to provide an additional response pursuant to the Court's October 3, 2003,

10 order, the City's prior answers to discovery and its representations to this Court in opposition to

I 1 Plaintiffs' motion to compel indicate that the City has no such evidence, and a review of the

12 documents it has identified and produced confirms that fact.

13

b. Tbe arrest records are undisputcdly at least partially false and do not

contain individualized evidence

14

15

The City has indicated that to the extent its answer to Interrogatory No. 11 provides any

16 evidence of probable cause to arrest any Class member, it is "premised primarily upon the arrest

17 reports of the potential class members previously discussed. Defendants are unaware of any

18 other specific documents which provide evidence which could constitute cause to arrest the

19 plaintiffs on the various charges." Weaver Decl., Ex. 28, p. 7 (answer to Interrogatory No. 12,

20 requesting identification of documentation of probable cause). However, those arrest records are

21 not only literally photocopies of each other, it is undisputed that they are false, at least in part.

22

.. As

the

arrest

records

demonstrate,

all

of

the

Class

members

were

processed
... . ...

without

any

23 concern for what they might have specifically done, or not done, or even who actually arrested

24 them. Each Class member was processed using photocopied forms, that, among other things, list

25 "Lt. Black" as the "arresting officer," charge the Class members with the crime of violating a

26 SMC 12A.26.040 (for violation of a mayoral emergency order), and contain a one-page

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
1428.100128 MJN_DOC

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I photocopied basis for the arrest. See Weaver Decl., ,lljj 9 to 17 (discussing arrest records) and

2 Exs. 7 to 21 (representative arrest records and table summarizing arrest records). The

3 photocopied basis for arrest indicates, in part, that every Class member "failed to clear the street

4 ... in accordance with mayor order" and that there was "an arrest warning giving by Lt. Black."

5 See Exs 8 to 21, Weaver Decl. (sample arrest records). None of the arrest records for the Class

6 members contain any record of individualized probable cause, nor provide any explanation of

7 any individual basis for arrest. See Weaver Decl., ~lljj 9, 14 to 16.

8

Even this cursory, Class-wide description of the reason for arrest is at least partially false.

9 As Lt. Landy Black testified, contrary to what the arrest records indicate, he was not the arresting

10 officer for any Class members, nor did he give any arrest warning. See Black Deposition, at

II 25:25- 30: II; 35:13- 36:11, Ex. 24 to Weaver Dec!.. In addition, it is undisputed that no Class

12 member violated the mayoral order that created the No-Protest Zone because they never entered

13 that Zone. As Capt. Jim Pugel, who was in charge of the arrest testified, the reference in the

14 arrest records to violation of a "mayoral order" was "clearly a misstatement by the person who

15 wrote this report." Pugel Dep.• at 282: 15-16, Ex. 23 to Weaver Decl.. See also id. at 266:10- 16

16 (Class did not enter Zone); Whelan Dep. at 30:12-32:3, Ex. 27 to Weaver Dec!. (srune).

17

The arrest records of the Class members do not contain any evidence that the City can use

18 to carry its burden of producing evidence indicating that its officers had individualized probable

19 cause to arrest any Class members. Aside from being inaccurate, they are uniform and contain

20 no individualized evidence or information as to any Class member.

21

c. The WheJan Report does not contain individualized evidence of

22

probable cause

•A

23

The only other documentation the·City has produced that records any reason why the

24 Class was arrested is a 3-page "incident report" prepared by Lt. Dan Whelan on the night of the

25 arrest. In that report, Lt. Whelan discussed his general observations concerning the events of that

26 day and evening, but did not record any fact concerning what any individual person had done to

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT Case No. C00-1672 P
1428 IOOll!MTN.DOC

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1101 l'mlt """""- SUITE,..., •S""r=. WA "101 nuPIIONE(l"') 6>J·1lll • FACSIMILE (KI6) 61!-onl

1 warrant arrest, much less elaborate on the facts giving rise to probable cause to arrest any

2 particular Class member. See Ex. 22 to Weaver Dec!. The report contains nothing constituting

3 individualized probable cause.

4

Furthermore, this cursory 3-page report is apparently the only report ever prepared to

5 document the arrest of the roughly 150 members of the Class. Although Plaintiffs have

6 requested all such reports, this is the only report that has been produced. Furthermore, Lt.

7 Whelan testified at his deposition that while he authored this report (after speaking to Capt.

8 Pugel and an unnamed City attorney), he did not consult with any other officers about the events

9 leading up to the report, did not take any other notes, did not direct other officers to prepare

I0 reports, and is unaware of any such report. See Whelan Dep., at 23:13- 26:18, 27:18- 28:22,

II 32:4- 13,45:24-46:13, Ex. 22 to Weaver Dec!.. Furthermore, although he was delegated

12 responsibility for documenting the arrest, he was not even present when the Class members were

13 taken into custody, he took no role in preparing any arrest records, and he did not review the

14 arrest records once they were completed. !d. at 22:19- 23:12.

15

Lt. Black, who was second in command at this arrest under Capt. Pugel, and was listed

16 (erroneously) as the "arresting officer," testified that although he was involved in the arrest, he

17 did not prepare any reports or otherwise document probable cause to arrest any person, and was

18 unaware of anything other than the arrest records that might constitute groWids for probable

19 cause. Black Dep., at 42:8- 43:3, Ex. 24 to Weaver Decl.

20

The City has no evidence of individualized probable cause. The Class is therefore

21 entitled to partial summary judgment as to the City's liability under their claims of wrongful

22 arrest in violation of the Constitution.

23

IV. CONCLUSION

24

For the reasons stated above, the Court should grant Plaintiffs' motion for partial

25 summary judgment as to the City's liability for wrongful arrest under the Fourth and Fourteenth

26 Amendments to the United States Constitution.

PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Case No. COO.J672 P
H28.100llB MTN_DOC

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008TOl'l Loa 1\I'O&LRS PHORMil< SRATTLB llOII'Irnr AVUM. SUITI! 1900 • S<ATTL<. WA 9a!ol
TEu;mO>IE (106) •>l·7l91 •FACSI..UU (106) OII.OJU

I Dated: October 9, 2003. 2 3 4 5 6 7 8 9 10 II 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

HAGENS BERMAN LLP

a;-\~~ steVe ~, WSBA #12536 Tyler Weaver, WSBA #29413 1301 Fifth Avenue, Suite 2900 Seattle, WA 9810 I
(206) 623-7292

Arthur Bryant
Victoria Ni TRIAL LAWYERS FOR PUBLIC JUSTICE One Kaiser Plaza, Suite 275 Oakland, CA 94612-3684
(510) 622-8150

Michael E. Withey STRITMAITER KESSLER WHELAN WITHEY COLUCCIO
200 Second Avenue West Seattle, WA 98119-4204 (206) 448-1777

FRED DIAMONDSTONE Attorney at Law 700 Dexter Horton Bldg 710 Second Ave
Seattle, WA 98104
(206) 568-0082

YVONNE KINOSHITA WARD
Attom7.r at Law I28 14 St. S.E. Auburn, WA 98002 (253) 887-8686

Jolm Muenster

MUENSTER & KOENIG

Wells Fargo Center

...

999 Third Ave., Suite 4100

Seattle, WA 98104

Benjamin Schwartzman LOVELL STEWART HALEBIAN & BARTH,
LLP 1420 Fifth Ave., Suite 2200 Seattle, WA 98 I 0I

PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDMGENT
Case No. C00-1672 P
1421.100118 MTN DOC

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BOSTON Lo~ AMG"LII~ PJIO.NIX SaATTLII
I:WI Fon~ Avn<U<. SUITE ]7(1:1 • «•"U. WA "101
TELEPHONE (I,.) 6ll-7ltl • FACSIMILE (:101;) 6ll"''"'

1 2

3

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5

6

7

8

9

10

11

12

13

14

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22 ••

.~

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PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDMGENT Case No. C00-1672 P
14U.100171 MTN_DOC

ERWIN CHEMERINSKY
Professor of Law Univ. of So. Calif. Law School University Park Los Angeles, CA 90089-0071
Counsel for Plaintiffs

-20-

BOSTON Lo• ANOI'.LIU PIIDJ<Nli< SaiLTTLit llOI f>mtiL""""- SUITE""'" •Sl.o.TIU. W/<91101
Ta.:EPHO>IE CJ(I6)611·1191 • FACSIMILE (>06) Oll-<1!9•

 
 1

The Honorable Barbara J. Rothstein

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

10 ROBERT HICKEY, KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE LANE,
11 CARROLL JACKSON, DENISE COOPER, NICOLE PEARSON, and EMILY
12 MALONEY, on behalf of themselves and all others similarly situated,
13
Plaintiffs, 14
v. 15
THE CITY OF SEATTLE, a municipality; 16 PAUL SCHELL, Mayor of the City of Seattle;
and NORMAN STAMPER, Chief of Police of 17 the City of Seattle,

No. C00-1672 R
PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION AND MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT THEREOF
Noted: October 11, 2002

18

Defendants.

19

20

I. INTRODUCTION

21

On December 1, 1999, the Seattle police herded a large group of people into the area

22 around First Avenue and Broad Street, trapped them between two groups of officers, arrested

23 nearly 150, and booked them for violating a mayoral order that had declared a large portion of

24 downtown Seattle off-limits to all protesters (the “No-Protest Zone”). At the time of their arrest,

25 however, these people were at least 11 blocks outside the No-Protest Zone and had never entered

26

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
1428.10 0082 MTN.DOC

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1 the No-Protest Zone. All of those arrested were arrested without probable cause, for a crime they

2 did not commit.

3

In this motion, Plaintiffs request that the Court certify a class of those arrested during this

4 herding incident.1

5

Because Seattle police arrested a large group of people at the same location, at the same

6 time, for the same reason, and on the same erroneous charges, the proposed Class easily meets

7 the certification requirements of Fed. R. Civ. P. 23 (“Rule 23”). The threshold requirements of

8 23(a) are all satisfied: (1) the proposed class has more than 140 members, (2) the claims of the

9 Class members arise from the same conduct, (3) the claims of named Plaintiffs Robert Hickey

10 and Carroll Jackson are typical of other class members in that they were among those arrested as

11 part of the herding incident, and (4) Plaintiffs Hickey and Jackson and their counsel have and

12 will adequately represent the Class.

13

In addition, the Class satisfies Rule 23(b) without difficulty. Because the claims of the

14 Class arise from a single incident in which all Class members were treated nearly identically, the

15 issues common to the Class far outweigh any individual issues, thus satisfying Rule 23(b)(3). In

16 addition, a class action is the superior method of addressing well over a hundred nearly identical

17 claims.

18

Certification under Rule 23(b)(2) for the portion of the case addressing equitable relief is

19 also appropriate. In addition to damages, Plaintiffs seek declaratory relief, and the declaration

20 sought will likely affect the interests of all Class members.

21

22

23

24

1 This is Plaintiffs’ second motion for class certification. Plaintiffs’ first motion, which sought to certify a larger class with all named Plaintiffs as representatives, was filed prior to this Court’s rulings on summary judgment.

Those summary judgment rulings effectively disposed of the claims of several named Plaintiffs and a large part of

25 the proposed class. The Court therefore denied the motion for class certification without considering the merits.

Plaintiffs respectfully disagree with the Court’s summary judgment rulings and plan to appeal. Plaintiffs will renew

26

their first motion on any remand following appellate review. This motion seeks to certify a different class with only Plaintiffs Hickey and Jackson as representatives.

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
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1

II. STATEMENT OF RELEVANT FACTS

2

Plaintiffs seek to certify a class, defined below, which consists of all those arrested in the

3 mass arrest that took place in the vicinity of First Avenue and Broad Street at about 4 o’clock in

4 the afternoon on December 1, 1999, and whose arrest records indicate that they were arrested for

5 violating an order of then-Mayor Paul Schell. On December 1, 1999, then-Mayor Schell issued

6 the Local Proclamation of Civil Emergency Order Number 3, City of Seattle (“Order No. 3”).

7 See Ex. F to Declaration of Tyler S. Weaver (“Weaver Decl.”). Under Order No. 3, no person

8 intending to protest the World Trade Organization (“WTO”) was allowed to enter a multi-block

9 area of downtown Seattle (the “No-Protest Zone”). See id. Any protester who violated the terms

10 of Order No. 3 by entering the No-Protest Zone was subject to arrest. See id. As illustrated by a

11 map incorporated into Order No. 3, the western edge of the No-Protest Zone was Fourth Street,

12 with the farthest northern edge being Lenora Street and the farthest southern edge being Seneca

13 Street. See id.

14

On December 1, 1999, the first day Order No. 3 was in effect, a large group of

15 individuals marched from the Labor Temple at approximately First and Clay toward the Seattle

16 waterfront, where they held a demonstration. Deposition of James Pugel, pp. 267-69, Ex. A to

17 Weaver Decl. The march and demonstration, which had been organized by the United

18 Steelworkers of America, were conducted pursuant to a permit issued by the City and took place

19 several blocks outside of the No-Protest Zone. See id.

20

After the march and demonstration concluded, the crowd dissipated and a number of

21 them proceeded to the 200 or 300 block of Pine Street, near the Pike Place Market and outside of

22 the No-Protest Zone. See id. at 257, 269-72. According to the testimony of Captain James

23 Pugel, Event Commander for the WTO meetings, no one in this group attempted to enter the No-

24 Protest Zone. See id. at 272. However, despite the fact that they were outside the No-Protest

25 Zone and were not attempting to enter it, this group of future arrestees was met by a phalanx of

26 law enforcement officers lining Pine Street from First Avenue to Third Streets. See id. at 257.

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
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1

The officers ordered the crowd to leave the area, which it did, generally traveling

2 northward, away from the No-Protest Zone. See id. at 259-60. Rather than allow the group to

3 disperse, the officers herded them northward on First and Second Avenues – which are two to

4 three blocks south of the No-Protest Zone. See id. at 261-62, 272, 278; see also Ex. S to Weaver

5 Decl. (Declaration of Tricia Sexton, Ex. 3 (transcript of radio transmissions documenting herding

6 movements)). As Captain Pugel testified, the goal of the police was to “get [the group]

7 cornered.” Ex. A to Weaver Decl, at 261-62.

8

Eventually the officers did corner the group. A second group of officers formed a

9 blockade to the north, at Denny Avenue, in order to prevent the group from leaving the

10 downtown area entirely. Id. at 278. The officers were ordered to “use some sting balls” in order

11 to keep the group from moving farther northward or eastward. See Ex. S to Weaver Decl. (Ex. 3

12 to Sexton Decl., at p. 12). Eyewitness testimony indicates that the officers also used concussion

13 grenades and tear gas to keep the group at or near the intersection of First Avenue and Broad

14 Street. See Ex. T to Weaver Decl. at pp. 3-4 (Declaration of Carroll Jackson); Ex. U to Weaver

15 Decl. at p. 3 (Declaration of Robert Hickey). Finally, at approximately First and Broad – after

16 the police had pursued the group for 11 blocks – the officers converged, trapping a large group of

17 people that were then arrested. Id. at 277-78. The police did not allow individuals to disperse

18 from this confined area, even those who requested that they be allowed to leave and attempted to

19 do so. See Ex. T to Weaver Decl. at p. 4; Ex. U to Weaver Decl. at pp. 3-4.

20

As Captain Pugel admitted in his deposition, those arrested at First and Broad never

21 entered the No-Protest Zone. Id. at 266. In fact, the intersection of First and Broad is no less

22 than 3 blocks west and 8 blocks north of the nearest corner of the No-Protest Zone. It is so far

23 outside the No-Protest Zone, in fact, that it does not even appear on the map of Seattle

24 incorporated into Order No. 3. See Ex. E to Weaver Decl. Moreover, the arrest occurred at

25 roughly the same intersection where the permitted United Steelworkers march had started – First

26 and Clay (Broad and Clay are one block from each other). It is likely that a significant number

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
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1 of those arrested were attempting to return to the march’s origination to retrieve their cars or

2 other belongings, or participate in events scheduled that night at the Labor Temple. See Pugel

3 Decl., Ex. A to Weaver Decl., at p. 270.

4

As the arrest records of Plaintiffs Hickey and Jackson submitted with this motion

5 illustrate, these Plaintiffs and the class they seek to represent were arrested for a crime they did

6 not commit: violating the boundaries of the No-Protest Zone. The arrest records for Hickey and 7 Jackson both contain an identical description of the reason for arrest:

8

SUSP FAILED TO CLEAR STREET IN THE AREA OF 1ST &

BROAD TO 1ST & DENNY IN ACCORDANCE WITH MAYOR

9

ORDER.

10 Exs. C and D to Weaver Decl.

11

In case this description left any doubt about the basis for arrest, the arrest records for both

12 of these Plaintiffs indicate, on pre-printed stickers, that they were booked on charges of

13 “FAILURE TO OBEY 12A.26.040.” Id. Seattle Municipal Code (“SMC”) § 12A.26.040, in

14 turn, provides as follows:

15

SMC 12A.26.040 Failure to obey

16 A person is guilty of failure to obey the Mayor's emergency order

17

when he or she knowingly violates any order issued under

authority of Sections 12A.26.010 or 12A.26.040.

18 Ex. E to Weaver Decl.

19 The same basis for arrest appears on the records for every member of the Class.

20 Plaintiffs have produced the arrest records of twelve other people arrested as part of this mass

21 arrest, and in each instance, the record indicates the person was arrested for violating the “mayor

22 order” and has a preprinted sticker indicating that the reason for arrest was a violation of SMC

23 § 12A.26.040. See Exs. G through R to Weaver Decl. Plaintiffs have reviewed the arrest records

24 of those arrested at or near First and Broad on December 1, 1999, and have determined that there

25

26

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
1428.10 0082 MTN.DOC

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1 were more than 140 people arrested and booked in the same fashion. Weaver Decl., ¶¶ 2-5 and 2 Ex. B.2

3

III. PROPOSED CLASS

4

Plaintiffs seek to certify the following class:

5

All individuals arrested on December 1, 1999, in the vicinity of the

6

intersections of First Avenue and Broad Street or First Avenue and Clay Street in Seattle, Washington, whose arrest records indicate

7

that a reason for arrest was a violation of Seattle Municipal Code § 12A.26.040.

8 IV. THE PROPOSED CLASS SATISFIES ALL

9

THE REQUIREMENTS OF FRCP 23

10 A. The Class Action Device is Frequently Used to Resolve Civil Rights Claims

11

Courts have recognized that the class action device is well suited to resolving civil rights

12 case involving large groups of people. See Wilson v. Tinkcom Township, 1993 U.S. Dist. Lexis

13 9971 (E.D. Pa. July 20, 1993) (certifying class of persons challenging same illegal conduct

14 involving policy of stopping and searching cars). The Supreme Court itself, in Amchem Prods.

15 v. Windsor, 521 U.S. 591, 614 (1997), recognized that civil rights cases are particularly amenable

16 to class treatment.

17

Accordingly, courts have certified classes in circumstances similar to those at issue here,

18 where police officers have violated the constitutional rights of a large group of people in a single

19 arrest or other incident. In Johns v. DeLeonardis, 145 F.R.D. 480 (N.D. Ill. 1992), for example,

20 plaintiffs alleged that the Chicago police had performed a raid on a group of Gypsy elders in

21 which the officers had, without a warrant or other basis for suspicion, separated the men and

22

2 As noted in the Declaration of Tyler Weaver, ¶ 5 and Exs. B and Q, some class members were also booked on

charges of obstructing an officer. In each and every instance where a class member was charged with this additional

23 offense, the arrest record indicates that – in addition to violating the mayor’s order – the class member refused to
promptly leave the bus in which the class member was placed following the arrest. This notation is, again,

24

photocopied for every class member and does not refer to individual circumstances. This does not affect class certification because it does not change the circumstance of their arrest. In addition, as noted in the Declaration of

Tyler Weaver, ¶ 6 and Exs. B and R, eight class members were booked on a third offense of failure to disperse. The

25 reason why these few members were charged with this third offense is not evident from the arrest records, which do

not indicate any special circumstances applicable to these arrestees. In any event, this also does not affect class

26

certification, as they were subject to the same arrest and the same uniform booking procedure, and their records indicate that the only reason for their arrest was that they were found to be in violation of Order No. 3.

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1 women and then strip-searched all the women. See id. at 481-82. The plaintiffs brought suit

2 under the First, Fourth, and Fourteenth Amendments and sought to certify a class of all of those

3 searched in the police raid, allegedly without probable cause. The court certified the class,

4 finding no reason to deny certification where “the injuries arise from a core of common operative

5 facts concerning a single occurrence.” See id. at 485. See also Patrykus v. Gomilla, 121 F.R.D.

6 357, 360-63 (N.D. Ill. 1988) (certifying class of bar patrons who were forbidden as a group from

7 leaving a bar by police who were acting without a warrant).

8

Courts have also certified classes involving mass arrests that took place in multiple

9 locations over the course of several days. In Sullivan v. Murphy, 478 F.2d 938 (D.C. Cir. 1973),

10 for example, the plaintiffs sought to certify a class of people arrested, allegedly without probable

11 cause, during the 1971 May Day demonstrations in Washington, D.C. Although the arrests had

12 taken place in different parts of the city over several days, the court certified the class, finding

13 that they were “the product of a common course of conduct by the police.” Id. at 967. See also

14 generally Collins v. Jordan, 110 F.3d 1363 (9th Cir. 1997) (class certified in legal challenge to

15 San Francisco policy of arresting protesters within specified areas of the City following the 1992

16 Rodney King verdict). Since class certification is appropriate in such circumstances, it is

17 certainly appropriate here, where the members of the proposed Class were all arrested at the

18 same location at the same time and were booked on precisely the same charges.

19

The certification of the proposed Class would follow a long line of precedent in which

20 courts have certified civil rights claims under section 1983. See, e.g., Maneely v. City of

21 Newburgh, 208 F.R.D. 69, 74-79 (S.D.N.Y. 2002) (class of prisoners alleging Fourth

22 Amendment violation due to strip-searches without probable cause certified); Thompson v. City

23 of Chicago, 2002 U.S. Dist. Lexis 10627 (N.D. Ill. June 11, 2002) (class certified where claims

24 were brought under First, Fourth, and Fourteenth Amendments for damages arising from

25 enforcement of panhandling ordinance); Mathis v. Bess, 138 F.R.D. 390 (S.D.N.Y. 1991) (class

26 of prisoners certified where undue delay alleged in perfecting appeals of convictions); Milonas v.

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1 Williams, 691 F.2d 931 (10th Cir. 1982) (class certified where cruel and unusual punishment and

2 due process violations alleged by boys confined in juvenile school).

3

Thus, Plaintiffs invoke a long-used and well-established procedure for resolving their

4 civil rights claims. Plaintiffs demonstrate below specifically how the Class meets the

5 requirements of Rule 23.

6 B. 7

The Court Should Certify the Proposed Class Under Rule 23(b)(3), or, In the Alternative, Under Rule 23(b)(2) with an Opt-Out Class for Plaintiffs’ Damages Claims

8

“Class actions serve an important function in our system of civil justice.” Gulf Oil Co. v.

9 Bernard, 452 U.S. 89, 99 (1981). Class actions allow individuals to collectively redress a wrong:

10

Equity has long recognized that there is need for a course which

11

would redress wrongs otherwise unremediable because the individual claims involved were too small, or the claimants too

12

widely dispersed. Moreover, early in the development of our civil procedures it became apparent that judicial efficiency demanded

13

the elimination of multiple suits arising from the same facts and questions of law. Hence, the wise and necessary procedure was

14

created by which a few representatives of a class could sue on behalf of others similarly situated, and be granted a judgment that

15

would bind all.

16 Green v. Wolf Corp., 406 F.2d 291, 297 (2d Cir. 1968).

17

A putative class action must satisfy all four of Rule 23(a)’s prerequisites, and at least one

18 of Rule 23(b)’s requirements, in order to be certified as a class action. Plaintiffs’ claims satisfy

19 all the elements of Rule 23(a) and the elements of 23(b)(3), as well as 23(b)(2).

20

1. Plaintiffs’ claims satisfy Rule 23(a)’s requirements

21

Rule 23(a) has four requirements:

22
23
24
25 Id.
26

(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.

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1

Plaintiffs’ claims satisfy each of these requirements.

2

a. Rule 23(a)(1) is satisfied because the class is so numerous that joinder

of all members is impracticable 3

Rule 23(a)(1) requires that the class be so numerous that the joinder of all class members 4

is impracticable. Impracticability may be based on size alone. See, e.g., Stewart v. Abraham, 5

275 F.3d 220, 226-27 (3d Cir. 2001), cert. denied, 122 S. Ct. 2661 (2002). 6

The number of individuals in the proposed class is more than 140. Weaver Decl., ¶ 2 and 7

Ex. B. This is more than sufficient to establish impracticability of joinder. See, e.g., NEWBERG 8

ON CLASS ACTIONS, Third Ed., § 3.05 (“In light of prevailing precedent, the difficulty inherent in 9

joining as few as 40 class members should raise a presumption that joinder is impracticable”); 10

Stewart, 275 F.3d at 226-27 (41 is sufficiently large class); Jordan v. County of Los Angeles, 669 11

F.2d 1311, 1319 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810 (1982) (classes with 12

39, 64 and 71 members probably sufficient); Gay v. Waiters’ and Dairy Lunchmen’s Union, 549 13

F.2d 1330, 1332 n.7 (9th Cir. 1977), quoting Sagers v. Yellow Freight Sys., Inc., 529 F.2d 721 14

(5th Cir. 1976) (a class of 110 is “clearly sufficient” under Rule 23(a)(1)). Requiring class 15

members to join almost 150 plaintiffs in one action would not only be burdensome to the parties, 16

it would also create administrative problems for the court. See Int’l Moulders’ & Allied 17

Workers’ Local Union No. 164 v. Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983). The Class, 18

therefore, satisfies Rule 23(a)(1). 19

20

b. Rule 23(a)(2) is satisfied because there are questions of law and fact common to the class

21

The “commonality” requirement of Rule 23(a)(2) is satisfied where a common question

22 of law or fact exists. Id. at 461-62. “[A]ll that is required is a common issue of law or fact.”

23 Blackie v. Barrack, 524 F.2d 891, 904 (9th Cir. 1975). The fact that there may be some

24 individual issues of fact or law does not mean that commonality does not exist. “The existence

25 of shared legal issues with divergent factual predicates is sufficient, as is a common core of

26 salient facts coupled with disparate legal remedies within the class.” Hanlon v. Chrysler Corp.,

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1 150 F.3d 1011, 10 (9th Cir. 1998). It is enough, for the purposes of Rule 23(a)(2), that “the

2 defendants have acted in a uniform manner with respect to the class.” Int’l Moulders, 102

3 F.R.D. at 462.

4

Here, Plaintiffs Hickey and Jackson and each of the members of the Class have numerous

5 factual and legal issues in common. In fact, their claims are virtually indistinguishable from one

6 another. Each member of the Class, including Plaintiffs Hickey and Jackson, was arrested at or

7 near First and Broad on December 1, 1999, for entering the No-Protest Zone, which was at least

8 11 blocks away at the time. Their arrest records are virtually identical, the result of a blank form

9 that was photocopied and used for each person arrested at or near First and Broad, a form that

10 listed the same operating officer and gave the exact same reason for the arrest. Compare, e.g.,

11 Exs. C, D, and G-R to Weaver Decl.

12

Every arrestee has the same claim – that they were arrested for a crime they did not

13 commit, without probable cause, in violation of the First, Fourth and Fourteenth Amendments of

14 the U.S. Constitution as well as the Washington Constitution. Plaintiffs Hickey and Jackson and

15 the Class therefore have, at a minimum, the following legal issues in common:

16

• whether Defendants, by arresting Plaintiffs Hickey and

Jackson and the Class for violating the mayor’s order and

17

SMC § 12A.26.040 when they were no less than 11 blocks

outside of the No-Protest Zone, violated the First, Fourth,

18

and Fourteenth Amendments of the United States

Constitution; and 19

20

• whether Defendants, by arresting Plaintiffs Hickey and Jackson and the Class for violating the mayor’s order and

21

SMC § 12A.26.040 when they were no less than 11 blocks outside of the No-Protest Zone violated the rights

22

guaranteed under Article 1, Section 5 of the Washington State Constitution.

23

Each member of the Class, including Plaintiffs Hickey and Jackson, was arrested at the

24 same place, at the same time, as a result of the same police conduct, and was booked on the same

25 charges. They therefore have the same claims and have numerous issues of fact and law in

26 common. The claims of Plaintiffs Hickey and Jackson claims satisfy Rule 23(a)(2).

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1

c. Rule 23(a)(3) is satisfied because the representative plaintiffs’ claims

are typical of all class members’ claims

2

Typicality under Rule 23(a)(3) is satisfied upon a showing that other members of the 3

class have the same or similar grievances. In Jones v. Shalala, 64 F.3d 510, 514 (9th Cir. 1995), 4

the Ninth Circuit stated: “The test of typicality refers to the nature of the claim or defense of the 5

class representative, and not to the specific facts from which it arose or the relief sought.” See 6

also, e.g., Hanlon, 150 F.3d at 1020 (9th Cir. 1998); Donaldson v. Pillsbury Co., 554 F.2d 825, 7
830 (8th Cir. 1977); Wright v. Stone Container Corp., 524 F.2d 1058 (8th Cir. 1975). 8

The typicality requirement is satisfied “when the claims of the named plaintiffs emanate 9

from the same event or are based on the same legal theory as the claims of the class members.” 10

In re Workers’ Compensation, 130 F.R.D. 99, 105 (D. Minn. 1990) (quoting Dirks v. Clayton 11

Brokerage Co., 105 F.R.D. 125, 132-33 (D. Minn. 1985)). As the Ninth Circuit has explained, 12

“[u]nder the rule’s permissive standards, representative claims are ‘typical’ if they are reasonably 13

co-extensive with those of absent class members; they need not be substantially identical.” 14

Hanlon, 150 F.3d at 1020. Differences in damages among class plaintiffs do not defeat 15

typicality. See, e.g., Blackie, 524 F.2d at 905 (“The amount of damages is invariably an 16

individual question and does not defeat class action treatment.”). 17

Here, the claims of Plaintiffs Hickey and Jackson are not only typical of those of the 18

other Class members, but they are also virtually indistinguishable from those of the other Class 19

members. As the arrest records of Plaintiffs Hickey and Jackson clearly show, they were 20

arrested in the area at or near First and Broad on December 1, 1999, at approximately 4:00 p.m., 21

and were booked on charges of violating SMC § 12A.26.040 because they violated the 22

“mayor[al] order.” Their claims are typical of the Class because the same is true of every 23

member of the Class. Plaintiffs Hickey and Jackson do not seek any relief different from or in 24

addition to that which is sought for all Class members. Like every other member of the Class, 25

Plaintiffs Hickey and Jackson claim only that their arrest without probable cause for a crime they 26

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1 did not commit violated their constitutional rights under the First, Fourth, and Fourteenth

2 Amendments of the U.S. Constitution, and the Washington Constitution. Plaintiffs Hickey and

3 Jackson satisfy the typicality requirement of Rule 23(a)(3).

4

d. Rule 23(a)(4) is satisfied because Plaintiffs Hickey and Jackson will

fairly and adequately protect the interests of all class members 5

Rule 23(a)(4) requires that the named plaintiffs be adequate representatives of the class, 6

by (1) prosecuting the action vigorously through qualified counsel, and (2) having no interests 7

antagonistic to or conflicting with the unnamed class members. Lerwill v. Inflight Motion 8

Pictures, Inc., 582 F.2d 507, 512 (9th Cir. 1978). See also Hanlon, 150 F.3d at 1020. 9

Plaintiffs seek to appoint only Plaintiffs Hickey and Jackson as representatives of the 10

proposed Class, and Plaintiffs Hickey and Jackson easily satisfy both adequacy requirements. 11

As to the first requirement, all Plaintiffs have retained experienced and qualified counsel. 12

Plaintiffs’ counsel has experience both in the field of class actions and in the field of civil rights 13

and constitutional law. See Ex. 1 to Declaration of Steve Berman (résumé of Hagens Berman 14

LLP) and Ex. 2 to Berman Decl. (Declaration of Arthur Bryant). Moreover, among Plaintiffs’ 15

counsel is one of the foremost Constitutional scholars in the United States. See Ex. 3 to Berman 16

Decl. (curriculum vitae of Professor Erwin Chemerinsky). 17

Plaintiffs also satisfy the second criterion under Rule 23(a)(4) since their interests are 18

coincident with the general interests of the class. The focus under the second prong is on 19

whether there is an actual or potential conflict between the claims of the representatives and the 20

claims of the Class. See, e.g., Hanlon, 150 F.3d at 1020. Plaintiffs Hickey and Jackson suffered 21

the exact same injury as the rest of the members of the Class, as they were arrested in the same 22

place, at the same time, for the same reason, and on the same charges, as the rest of the Class. 23

Their claims are precisely co-extensive with those of the Class, and they seek no recovery in 24

addition to that sought on behalf of every Class member. There is no actual or potential conflict 25

26

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1 between the Class and Plaintiffs Hickey and Jackson. Plaintiffs Hickey and Jackson satisfy both

2 aspects of Rule 23(a)(4).

3 C. Plaintiffs’ Claims Satisfy the Requirements of Rule 23(b)

4

A class action must not only satisfy the prerequisites of Rule 23(a), but must also satisfy

5 at least one of the three parts of Rule 23(b). Plaintiffs ask the Court to certify an opt-out

6 damages class pursuant to Rule 23(b)(3), or in the alternative, a hybrid class pursuant to Rule

7 23(b)(2) for Plaintiffs’ declaratory relief claims with an opt-out class for Plaintiffs’ damages

8 claims. Plaintiffs satisfy both subsections (b)(3) and (b)(2).

9

1. Plaintiffs’ claims meet the requirements of Rule 23(b)(3)

10

The claims of Plaintiffs Hickey and Jackson satisfy Rule 23(b)(3) because: (1) common

11 questions predominate over individual questions, and (2) the class action device is superior to

12 other forms of litigation. Rule 23(b)(3) permits an order granting certification if the Court finds

13 that “questions of law or fact common to the members of the class predominate over any

14 questions affecting only individual members, and that a class action is superior to other available

15 methods for the fair and efficient adjudication of the controversy.” These conditions are satisfied

16 here.

17 a. Common questions predominate
18 The Class satisfies the requirement of Rule 23(b)(3) that common issues of law and fact
19 predominate over any individual issues. The predominance test does not require exact identity of
20 the claims among Class members, and instead merely “tests whether proposed classes are
21 adhesive enough to warrant adjudication by representation.” Local Joint Ex. Board of
22 Culinary/Bartender Trust Fund v. Las Vegas Sands, Inc., 244 F.3d 1152, 1162 (9th Cir. 2001),
23 cert denied 151 L. Ed. 2d 299 (U. S. 2001), quoting Amchem, 521 U.S. at 591. The test is
24 satisfied “[w]hen common questions present a significant aspect of the case and they can be
25 resolved for all members of the class in a single adjudication.” Hanlon, 150 F.3d at 1022.
26

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1

There should be little question that the claims of the Class satisfy this standard. The

2 Class is comprised of a group of people who were herded together by the Seattle police into a

3 single location and then arrested en masse for the same reason and booked on the same charges –

4 for committing a crime that even the Seattle police concede none of the Class members

5 committed. The Class was herded, arrested, and booked without regard to individual

6 circumstances, and hence there are virtually no relevant individual issues of fact or law that stand

7 in the way of class certification. The Class has in common the issue of whether they were

8 arrested without probable cause, as they were all booked on charges of entering the No-Protest

9 Zone despite never having entered it. This common, overarching issue completely overshadows

10 any and all individual issues of fact. In other words, a “common nucleus of facts and potential

11 legal remedies dominates” the claims of the Class that remain after the Court’s previous rulings

12 on summary judgment. Hanlon, 150 F.3d at 1022.

13

Courts have found that common issues predominated in mass arrest cases larger and more

14 complex than the case presented by the present motion for class certification. In Dellums v.

15 Powell, 566 F.2d 167 (D.C. Cir. 1977), for example, the plaintiffs brought a class action on

16 behalf of everyone arrested at the U.S. Capitol on May 5, 1971, during a protest against the

17 Vietnam War. During the protest, the police formed a line at the bottom of the Capitol steps and

18 arrested the protesters without giving them an opportunity to disperse. The complaint further

19 alleged that the arrestees were detained for periods of up to several days without due process of

20 law. The district court certified the class under Rule 23(b)(3) and the D.C. Circuit affirmed.

21

In particular, the Dellums Court noted that a mass false arrest case is not the equivalent of

22 a ‘mass accident’ case resulting in injuries to numerous persons that would ordinarily not be

23 appropriate for a class action. The key difference is that in a mass arrest, the issue of liability

24 would be tried on substantially the same evidence no matter who brought suit or whether suit

25 was brought individually, by joined plaintiffs, or by a class. The court went on to point out that

26

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1 despite varying lengths of incarceration, damages could be fixed without any difficulty, either for

2 the class as a whole, or by subclass. Dellums, 566 F.2d at 188 n.56.

3

In summary, common issues unquestionably predominate. The Class members were

4 arrested at the same place, at the same time, for the same reasons, and on the same charges.

5 They therefore have the same claims, for which liability can uniformly be determined without

6 reference to individual claims. Defendants treated the Class members like a herd of cattle, and in

7 so doing created a uniquely cohesive, uniform class for which common issues completely

8 overshadow any individual issues. This Class is a creature of Defendants’ creation.

9

b. The class action device is superior

10

In addition to finding that common questions predominate, Rule 23(b)(3) requires a

11 finding that “a class action is superior to other available methods for the fair and efficient

12 adjudication of the controversy.” As the Supreme Court has recognized, the requirement of

13 superiority was designed and intended to

14

achieve economies of time, effort, and expense, and promote . . .

15

uniformity of decision as to persons similarly situated, without sacrificing procedural fairness or bringing about other undesirable

16

results.

17 Amchem Prods. v. Windsor, 521 U.S. 591, 615 (1997), quoting Adv. Comm. Notes, 28 U.S.C.

18 App., p. 697. Certification of the Class would promote all of these values.

19

If the more than 140 Class members arrested in the vicinity of First and Broad on

20 December 1, 1999, each brought an individual civil rights action, the federal courts – and this

21 Court in particular – would face dozens of summary judgment motions, dozens of motions to

22 dismiss, and untold numbers of motions in limine and other non-dispositive motions. This

23 multiplication of efforts would overburden this Court and delay adjudication of the claims of the

24 Class members. Such a scenario is completely unnecessary and entirely avoidable because the

25 virtually indistinguishable claims of the Class members can be tried in the same action without

26 multiplication of the efforts of counsel and of the Court. Certification would promote both

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1 judicial efficiency and overall fairness by expediting adjudication of the claims of the Class and

2 ensuring consistent treatment of similarly-situated claimants.

3

A class action on the claims of the Class would also allow those Class members who

4 cannot afford to hire an attorney the opportunity to litigate their claims. The typical claim too

5 small for each individual Class member to maintain a separate action against the City. In the

6 words of the Ninth Circuit,

7

the alternative [to certification of a class is] individual claims for a

small amount of . . . damages. . . . Even if efficacious, these claims

8

would not only unnecessarily burden the judiciary, but would

prove uneconomic for potential plaintiffs. In most cases, litigation

9

costs would dwarf potential recovery. In this sense, the proposed

class action is paradigmatic. A fair examination of alternatives can

10

only result in the apodictic conclusion that a class action is the

clearly preferred procedure in this case. 11

Hanlon, 150 F.3d at 1023. 12

A review of other relevant factors identified in Rule 23(b)(3) only confirms the 13

conclusion that a class action is superior to other methods of adjudicating the claims of the class. 14

This is, for example, clearly the proper forum for the certification of this Class: the mass arrest 15

at First and Broad took place in this District and the vast majority of the witnesses and evidence 16

are located here. Rule 23(b)(3)(C). In addition, the interests of the Class members in pursuing 17

their own claims is relatively small, given the relatively small damages each member suffered. 18

Rule 23(b)(3)(A). And finally, given the cohesiveness of the Class and the nearly identical 19

issues of fact and law applicable to every member of the Class, it is unlikely that certification of 20

this Class would cause significant difficulties in the future litigation of this case. Rule 21

23(b)(3)(D). 22

Plaintiffs satisfy the predominance and superiority aspects of Rule 23(b)(3). Evaluation 23

of the four 23(b)(3) factors relevant to superiority confirms that conclusion. This Court should 24

certify this case according to Rule 23(b)(3). 25

26

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1

2. The Class also satisfies Rule 23(b)(2)

2

In the alternative, the Class should also be certified for the purposes of declaratory

3 judgment under Rule 23(b)(2), which authorizes a class action where “the party opposing the

4 class has acted or refused to act on grounds generally applicable to the class, thereby making

5 appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a

6 whole .…” Certification pursuant to subsection (b)(2) is particularly appropriate in civil rights

7 cases where the defendants have acted in a uniform manner toward the members of the class.

8 See Amchem Prods. v. Windsor, 521 U.S. 591, 614 (1997); Int’l Molders’, 102 F.R.D. at 465;

9 Santiago v. City of Philadelphia, 72 F.R.D. 619, 625-26 (E.D. Pa. 1976); see also Alliance to

10 End Repression v. Rochford, 565 F.2d 975, 979 (7th Cir. 1977), citing to Advisory Committee

11 Notes to the 1966 Amendments to Rule 23).

12

For example, in Daniels v. City of New York, 198 F.R.D. 409 (S.D.N.Y. 2001), the

13 plaintiffs alleged that New York police officers routinely stopped and searched drivers based on

14 their race and without a reasonable suspicion that the drivers had committed any crime. The

15 plaintiffs brought suit under the Fourth and Fourteenth Amendments, seeking a declaration that

16 their civil rights had been violated, and moved to certify a class of similarly situated individuals.

17 The court certified the class, noting that:

18

(b)(2) classes have been certified in a legion of civil rights cases

where commonality findings were based primarily on the fact that

19

defendant's conduct is central to the claims of all class members

irrespective of their individual circumstances and the disparate

20

effects of the conduct.

21 Id. at 416, quoting Baby Neal for and by Kanter v. Casey, 43 F.3d 48, 57 (3d Cir. 1994).

22 That is certainly the case here, where Defendants arrested Plaintiffs Hickey and Jackson and

23 every member of the Class under the exact same circumstances and booked them with the exact

24 same offense. A declaration as to the constitutionality of the arrest at First and Broad will affect

25 the claims of each member of the Class in precisely the same fashion. Accordingly, in the event

26 this Court determines that Rule 23(b)(3) certification for all claims is not proper, this Court

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1 should certify the declaratory judgment claims under Rule 23(b)(2) and certify the damages

2 claims under Rule 23(b)(3) in order to preserve class members’ rights to opt out.

3

V. CONCLUSION

4

For the reasons above, this Court should certify the proposed Class under Rule 23.

5

DATED: September 12, 2002.

6

HAGENS BERMAN LLP

7

8

By

9

Steve W. Berman, WSBA #12536 Tyler Weaver, WSBA #29413

10

1301 Fifth Avenue, Suite 2900 Seattle, WA 98101

11

(206) 623-7292

12

Lead Counsel for Plaintiffs

13

Arthur Bryant Victoria Ni

14

TRIAL LAWYERS FOR PUBLIC JUSTICE One Kaiser Plaza, Suite 275

15

Oakland, CA 94612-3684 (510) 622-8150

16

Michael E. Withey

17

STRITMATTER KESSLER WHELAN WITHEY COLUCCIO

18

200 Second Avenue West Seattle, WA 98119-4204

19

(206) 448-1777

20

FRED DIAMONDSTONE Attorney at Law

21

700 Dexter Horton Bldg 710 Second Ave

22

Seattle, WA 98104 (206) 568-0082

23

YVONNE KINOSHITA WARD

24

Attorney at Law 200 Second Ave. W.

25

Seattle, WA 98119 (206) 628-8686

26

PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
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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 26
PLAINTIFFS' SECOND MOTION FOR CLASS CERTIFICATION Case No. C00-1672 R
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John Muenster MUENSTER & KOENIG Wells Fargo Center 999 Third Ave., Suite 4100 Seattle, WA 98104
ERWIN CHEMERISNKY Professor of Law Univ. of So. Calif. Law School University Park Los Angeles, CA 90089-0071
Counsel for Plaintiffs

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 1

The Honorable Barbara J. Rothstein

2

3

4

5

6

7

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

8

AT SEATTLE

9

10 ROBERT HICKEY, KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE LANE,
11 CARROLL JACKSON, DENISE COOPER, NICOLE PEARSON, and EMILY
12 MALONEY, on behalf of themselves and all others similarly situated,
13
Plaintiffs, 14
v. 15
THE CITY OF SEATTLE, a municipality; 16 PAUL SCHELL, Mayor of the City of Seattle;
and NORMAN STAMPER, Chief of Police of 17 the City of Seattle,

No. C00-1672 R
PLAINTIFFS' REPLY MEMORANDUM IN SUPPORT OF SECOND MOTION FOR CLASS CERTIFICATION
Noted for Hearing: October 11, 2002

18

Defendants.

19

20

21

22

23

24

25

26

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1

TABLE OF CONTENTS

2
Page 3
I. INTRODUCTION ...............................................................................................................1 4
II. THE MOTION IS NOT UNTIMELY .................................................................................1 5
III. THE COURT SHOULD NOT CONSIDER THE MERITS ON THIS MOTION..............2 6
IV. THE CLASS IS DEFINED CLEARLY ..............................................................................3 7
V. THE CLASS SATISFIES THE REQUIREMENTS OF RULE 23(a) ................................5 8
A. Joinder Would be Impracticable ..............................................................................6 9
B. There Are Numerous Common Issues of Law and Fact..........................................6 10
C. Plaintiffs Hickey and Jackson’s Claims Are Typical of the Class...........................9 11
D. Plaintiffs Hickey and Jackson Are Adequate Representatives ..............................10 12
VI. THE CLASS SATISFIES THE REQUIREMENTS OF RULE 23(b)(3) .........................10 13
A. Common Questions Predominate ..........................................................................10 14
B. A Class Action Would be Superior........................................................................11 15
VII. THE CLASS ALSO SATISFIES RULE 23(b)(2).............................................................12 16
VI. CONCLUSION..................................................................................................................12 17

18

19

20

21

22

23

24

25

26

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Case No. C00-1672 R

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1

TABLE OF AUTHORITIES

2

CASES

3 Abramovitz v. Ahern,

96 F.R.D. 208 (D. Conn. 1982)......................................................................................1, 11

4

Arrington v. City of Philadelphia,

5

1989 U.S. Dist. LEXIS 19117 (E.D. Pa. 1989) ...................................................................8

6 Blackie v. Barrack,

524 F.2d 891 (9th Cir. 1975) ...............................................................................................7

7

Cliett v. City of Philadelphia,

8

1985 U.S. Dist. LEXIS 14832 (E.D. Pa. 1985) .................................................................11

9 In re Dalkon Shield IUD Products Liability Litigation,

693 F.2d 847 (9th Cir. 1982) .............................................................................................11

10

Eisen v. Carlisle & Jacquelin,

11

417 U.S. 156 (1974).............................................................................................................2

12 Gay v. Waiters' & Dairy Lunchmen's Union,

549 F.2d 1330 (9th Cir. 1977) .............................................................................................6

13

Hanlon v. Chrysler Corp.,

14

150 F.3d 1011 (9th Cir. 1998) ...........................................................................................10

15 Hanon v. Dataproducts Corp.,

976 F.2d 497 (9th Cir. 1992) ...............................................................................................9

16

International Moulders' & Allied Workers' Local Union No. 164 v. Nelson,

17

102 F.R.D. 457 (N.D. Cal. 1983).........................................................................................6

18 Jones v. Shalala,

64 F.3d 510 (9th Cir. 1995) .................................................................................................9

19

Jordan v. County of Los Angeles,

20

669 F.2d 1311 (9th Cir. 1982), vacated on other grounds ..................................................6

21 Lemon v. International Union of Operating Eng'rs, Local No. 139,

216 F.3d 577 (7th Cir. 2000) .............................................................................................12

22

Maneely v. City of Newburgh,

23

208 F.R.D. 69 (S.D.N.Y. 2002) ................................................................................. passim

24 Patrykus v. Gomilla,

121 F.R.D. 361 (N.D. Ill. 1988)...................................................................................11, 12

25

Rand v. Monsanto Co.,

26

926 F.2d 596 (7th Cir. 1991) .............................................................................................10

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1

Schnepp v. Hocker,

2

429 F.2d 1096 (9th Cir. 1970) .............................................................................................8

3 Sheimo v. Bengston,

64 Wn.App. 545, 825 P.2d 343 (1992) ................................................................................5

4

Singer v. AT&T Corp.,

5

185 F.R.D. 681 (S.D. Fla. 1998)..........................................................................................3

6 State v. Mance,

82 Wn.App. 539, 918 P.2d 527 (1996) ................................................................................8

7

Stewart v. Abraham,

8

275 F.3d 220 (3d Cir. 2001), cert. denied, 122 S. Ct. 2661 (2002) .....................................6

9 Stolz v. United Brotherhood of Carpenters & Joiners, Local Union No. 971,

620 F. Supp. 396 (D. Nev. 1985).........................................................................................2

10

Wilson v. City of Seattle,

11

122 Wn.2d 814, 863 P.2d 1336 (1993)................................................................................5

12 Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180 (9th Cir.) ....................................................................................................12
13

14

15

16

17

18

19

20

21

22

23

24

25

26

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1

2

I. INTRODUCTION

3

Defendants’ opposition is notable for what it concedes: that on December 1, 1999, the

4 City of Seattle arrested more than 140 individuals at or near the intersection of First Avenue and

5 Broad Street for entering the No-Protest Zone, a crime they did not commit. Defendants do not

6 dispute that police cornered a large group of people that never entered the No-Protest Zone, and

7 then arrested and booked them on charges of entering the No-Protest Zone, using identical,

8 photocopied arrest records (a “Superform”) that listed the same crime, the same place and time

9 of arrest, and the same arresting officer, and omitted any mention of individual circumstances.

10 Defendants treated this class of individuals as a faceless group of individuals. In so doing, they

11 treated the Class in a uniform and common manner that compels class certification.

12

Defendants’ primary argument in opposition to certification is that there may have been

13 individual circumstances relevant to some arrests. However, none of the arrest records in

14 question contain any individual explanation for a particular person’s arrest, and Defendants have

15 not even attempted to suggest how they would prove individual circumstances. Even supposing

16 they could muster such evidence, courts have held that such inquiries do not defeat certification.

17 See, e.g., Maneely v. City of Newburgh, 208 F.R.D. 69, 77-79 (S.D.N.Y. 2002) (class certified on

18 allegations that strip-searches had been conducted without probable cause where reasonableness

19 inquiry required for each search); Abramovitz v. Ahern, 96 F.R.D. 208, 217 (D. Conn. 1982)

20 (class certified for illegal wiretap victims where inquiry necessary for each tap).

21

Defendants also raise a number of other issues, such as “vagueness” of the Class

22 definition and adequacy of representation, that are equally groundless.

23

II. THE MOTION IS NOT UNTIMELY

24

Defendants suggest Plaintiffs’ motion is untimely, apparently contending that this case

25 has a set deadline for class certification. In fact, as Defendants are well aware, there have been

26 no deadlines in this case ever since the Court vacated all deadlines on February 27, 2001. Reply

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1 Declaration of Tyler S. Weaver in Support Second Motion for Class Certification, ¶ 3 (“Weaver

2 Reply Decl.”). Indeed, the parties have in recent weeks discussed the need to set a trial date and

3 associated deadlines. There are no deadlines in this case and Plaintiffs’ motion is not untimely.

4

During those discussions regarding proposed trial and pre-trial dates, Plaintiffs told

5 Defendants they would file a second motion for class certification. Weaver Reply Decl., ¶ 5.

6 Defendants did not respond in any fashion to Plaintiffs’ declared intentions and did not object on

7 the basis that such a motion would be untimely. Id.

8

In any event, a motion for class certification should not be denied on grounds of

9 timeliness except where a defendant has been prejudiced. See, e.g., Stolz v. United Brotherhood

10 of Carpenters & Joiners, Local Union No. 971, 620 F. Supp. 396, 402 (D. Nev. 1985).

11 Defendants have not demonstrated any prejudice, nor could they where there is no case schedule.

12 The timing of present motion reflects the evolution of this case following the Court’s summary

13 judgment orders, which eliminated the claims of most Plaintiffs and mooted the first motion for

14 class certification. Plaintiffs, with the Court’s permission, sought review of the Court’s summary

15 judgment order from the Ninth Circuit, which request was only recently denied. Plaintiffs have

16 brought this second motion for certification of a subgroup of the original class. Any delay has 17 not prejudiced Defendants, who have always known that Plaintiffs sought to represent a class.1

18

III. THE COURT SHOULD NOT CONSIDER THE MERITS ON THIS MOTION

19

Defendants’ have invited the Court to consider the merits of the Class’s claims in

20 deciding this motion. However, there is “nothing in either the language or history of Rule 23

21 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order

22 to determine whether it may be maintained as a class action. Indeed, such a procedure

23 contravenes the Rule.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974). The Court

24 should decline Defendants’ invitation to render a ruling on the merits of the Class’s claims.

25
1 Defendants claim that they were not previously on notice that the Plaintiffs arrested outside the No-Protest

26

Zone had stated or would state a claim that their arrests were unlawful. That is not the case. See, e.g., Amended Complaint, ¶ 10, Ex. 4 to Weaver Reply Decl.

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1

IV. THE CLASS IS DEFINED CLEARLY

2

Defendants object to the Class definition as being allegedly “vague.” However,

3 Defendants’ objections are easily refuted. Indeed, Defendants’ actually concede that “the

4 putative members of the proposed class can be . . . easily identified.” Opp. at p. 12.

5

The proposed Class definition is highly specific:

6

All individuals arrested on December 1, 1999, in the vicinity of the intersections of First

7

Avenue and Broad Street or First Avenue and Clay Street in Seattle, Washington, whose

arrest records indicate that a reason for arrest was a violation of Seattle Municipal Code

8

§ 12A.26.040.

9 Defendants’ objections to this definition boil down to mere semantics. Yet, “[w]hile the

10 definition of the class must not be vague or difficult to apply, the implicit definition requirement

11 does not require an overly strict degree of certainty and is to be liberally applied.” Singer v.

12 AT&T Corp., 185 F.R.D. 681, 685 (S.D. Fla. 1998).

13

Defendants’ first argument is that the use of the word “vicinity” is vague.2 In fact, it is

14 not vague at all in context. The members of the Class were arrested en masse in a multi-block

15 area that included First Avenue’s intersection with Broad and Clay Streets. As the sample arrest

16 records Plaintiffs submitted with their motion demonstrate, each Class member’s “Superform” 17 indicates that the “location” of arrest was “1st & Broad to 1st & Denny.” See Declaration of

18 Tyler Weaver in Support of Second Motion for Class Certification (“Weaver Decl.”), Exs. C, D,

19 and G through R. This is the area referred to by Plaintiffs’ Class definition. Defendants have not

20 produced a single record of an arrest in the “vicinity” of First and Broad that was not part of the

21 mass arrest at issue. Plaintiffs, who have reviewed what they understand to be all arrest records

22 from December 1, 1999, believe there is no such arrest record.

23

24

25

26

2 Defendants incorrectly claim in their discussion of the class definition that Plaintiffs have impliedly alleged a facial challenge to SMC 12A.26.040. Opp. at 7. That is not the one of the Class claims.

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1

Defendants also claim that “arrest” is vague. The Class definition uses “arrest” as it is

2 commonly used – to refer to the act of taking someone into police custody. All of the Class

3 members were taken into police custody. “Arrest” does not render the definition vague.

4

Defendants also claim that the use of the phrase “arrest record” is vague. Reference to

5 the context of Plaintiffs’ motion shows that this term is not vague. By “arrest record,” Plaintiffs

6 are referring to each Class member’s Superform, on which Seattle police recorded information

7 on each arrestee. See, e.g., Weaver Decl., Exs. C, D, and G through R. By “arrest record,”

8 Plaintiffs are referring primarily to these Superforms. It is readily apparent from these records

9 what charges each Class member was booked on and when and where they were arrested.

10

Defendants also complain the Class includes individuals who were booked on offenses in

11 addition to a violation of SMC 12A.26.040. This does not render the definition vague. As

12 indicated in Plaintiffs’ motion (p. 6 at n.2), a portion of the Class was charged with obstructing

13 an officer in addition to violating SMC 12A.26.040. However, those charges arose from a post-

14 arrest refusal to exit a bus. See Weaver Decl., ¶ 5 and Ex Q. This additional charge would not –

15 could not – have been brought if the Class members had not been wrongfully arrested. Any

16 charges for post-arrest behavior are irrelevant to the Class’s claims for wrongful arrest.

17

The Superforms for a handful of Class members also indicate that they were booked on

18 charges of failing to disperse in violation of SMC 12A.12.020, in addition to violating SMC

19 12A.26.040. See Weaver Decl., ¶ 6, Ex. Q. However, a review of the entire arrest record for

20 these Class members shows that they were arrested for the same reasons and under the same

21 circumstances as the rest of the Class. See id.

22

Defendants also claim the Class includes “individuals arrested for acts of property

23 destruction, assault, threatening the President, and endangering the public.” Opp. at 8. That is

24 not so. Plaintiffs submitted a table that shows what each Class member was charged with. See

25 Weaver Decl., ¶¶ 2 and 3, and Ex. B. No Class member was charged with any such crimes.

26

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1

Defendants further complain that the Class does not explicitly exclude individuals who

2 have already litigated claims against Defendants for their wrongful arrests. Any such individuals

3 would be, of course, necessarily excluded from the Class.

4

Defendants also claim that the Class is “vague” because it is not limited to those arrested

5 by a Seattle police officer. However, the Superform for every Class member lists the “arresting

6 officer” as “Lt. Black” of the Seattle Police Department. See, e.g., Weaver Decl., Exs. C, D, and

7 G through R. If there were different arresting officers, Defendants failed to note as such, and

8 have not provided any evidence that the mass arrest at issue involved anyone other than Seattle

9 officers. Even if a Class member was arrested by an officer from a different jurisdiction,

10 Defendants would be liable for that officer’s acts while acting at the direction of Seattle officers.

11 See, e.g., Sheimo v. Bengston, 64 Wn.App. 545, 550, 825 P.2d 343 (1992) (city liable for actions

12 of county officers working under city’s direction). See also Weaver Decl., Exs. A and S

13 (documenting that Seattle Captain James Pugel directed the mass arrest).

14

Defendants also argue that the Class definition is insufficient because it would require

15 inquiry into 1) when a person was arrested, 2) where the person was arrested, 3) the arresting

16 officer, 4) whether the person was arrested for violating SMC 12A.26.040, and 5) whether the

17 individual filed a claim with the City. As for the first four of these points, all of this information

18 is easily gleaned from each person’s Superform. As for the final point, it is an issue of law

19 common to the Class whether any Class member was required to file a claim with the City. See,

20 e.g., Wilson v. City of Seattle, 122 Wn.2d 814, 819, 863 P.2d 1336 (1993).3

21

If the Court is concerned that the definition is imprecise, Plaintiffs request the Court

22 allow Plaintiffs to rewrite the definition to address the Court’s concerns.

23

V. THE CLASS SATISFIES THE REQUIREMENTS OF RULE 23(A)

24

Contrary to Defendants’ arguments, the Class satisfies all elements of Rule 23(a).

25

26

3 Defendants also argue that individual issues are invited into this case by claims of excessive force. Plaintiffs have not stated claims of excessive force.

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1 A. Joinder Would be Impracticable

2

Defendants claim that the joinder of more than 140 Class members would not be

3 impracticable. That is simply incorrect. Contrary to Defendants’ argument, impracticability

4 under Rule 23(a)(1) can be proven by the size of the Class alone, and 140 Class members is

5 sufficient. See, e.g., Stewart v. Abraham, 275 F.3d 220, 226-27 (3d Cir. 2001), cert. denied, 122

6 S. Ct. 2661 (2002) (classes of 40 or more routinely certified); Gay v. Waiters’ & Dairy

7 Lunchmen’s Union, 549 F.2d 1330, 1332 n.7 (9th Cir. 1977) (110 is “clearly sufficient”).

8

Even if the sheer size of the Class were not enough to establish impracticability, Rule

9 23(a)(1) is also satisfied where “the difficulty or inconvenience of joining all members of the

10 class makes class litigation desirable.” Int’l Moulders’ & Allied Workers’ Local Union No. 164

11 v. Nelson, 102 F.R.D. 457, 461 (N.D. Cal. 1983). Geographical diversity and relatively small

12 damages claims both suggest that joinder would be impracticable. Jordan v. County of Los

13 Angeles, 669 F.2d 1311, 1319-20 (9th Cir. 1982), vacated on other grounds, 459 U.S. 810

14 (1982). Here, the individual damage claims are not particularly large, and, as Defendants point

15 out, “as these [Class members] may have come from all over the world, plaintiffs will have

16 considerable difficulty in accessing these putative class members . . . .” Opp. at 23. Joinder of

17 over 140 people with relatively small claims who live across the country would be especially

18 difficult, as well as unmanageable for this Court. Joinder would be impracticable.

19 B. There Are Numerous Common Issues of Law and Fact

20

Defendants claim that there are no common issues of law or fact. That is incorrect.

21 Defendants do not dispute that every member of the Class was arrested in a group, at the same

22 time, on the same day, in the same place, pursuant to the same arrest order, and was booked the

23 same offense for the same reason, using photocopied arrest records that are virtually

24 indistinguishable. This creates an entire host of common factual and legal issues, including why

25 police ordered a mass arrest without concern for probable cause, and whether Plaintiffs were

26

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1 arrested for a crime they did not commit. Indeed, Seattle Police Captain James Pugel, who was

2 in charge of the mass arrest, testified that every arrest record from the mass arrest is wrong:

3

A. [Reading photocopied arrest record from First and Broad mass arrest:] “Suspect

4

arrested after refusing to leave area.” Okay. The first sentence, “Suspect failed to clear

street in area of First and Broad to First and Denny in accordance with Mayoral Order.”

5

Q. Do you know what Mayor order that was?

6

A. No.

7

Q. Was there any Mayor’s order governing that?

8

A. That was clearly a misstatement by the person that wrote this report.

9 Weaver Decl., Ex. A at pp. 281-82 (emphasis added). This “misstatement” appears in every

10 arrest record for every Class member.4 There are thus obvious common issues of fact and law.

11 These include whether the order to arrest all Class members without consideration of probable

12 cause violated the First and Fourth Amendments, why the arrest order was given, whether the

13 City had a policy of arresting all protestors regardless of whether they were inside or outside the

14 No-Protest Zone, and whether any such policy violated the First and Fourth Amendments. All

15 that Rule 23(a)(2) requires is that there is “a common issue of law or fact.” Blackie v. Barrack,

16 524 F.2d 891, 904 (9th Cir. 1975). That rule is satisfied here.

17

The supposed individual issues Defendants identify are nothing more than attempts to

18 suggest there may have been individual circumstances for each arrestee – something never

19 claimed when the arrests were made. Not a single Class member’s arrest record contains any

20 description of individual circumstances. See Weaver Decl., ¶¶ 3-6, Exs. C, D, and G through R.

21 Nearly 3 years after the mass arrest, Defendants now make the dubious claim that they may have

22 had cause to arrest Class members for other crimes. However, even if Defendants could attempt

23 to prove a different basis for arrest at this late stage, Defendants are attempting to delve into the

24 merits of the case, which is improper on this motion.

25

26

4 There is but a single exception. One of the arrest records Plaintiffs have reviewed does not contain the sheet Capt. Pugel testified about, but that record also does not give any other reason for arrest. Weaver Decl., ¶¶ 4,5.

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1

In any event, even if probable cause inquiries were required, that does not mean that there

2 are no common issues, and does not defeat class certification. Other courts have certified classes

3 that presented the possibility of far more individualized inquiries than would ever be necessary

4 here. See, e.g., Maneely, 208 F.R.D. at 77-79 (class certified on allegations that strip-searches

5 had been conducted without probable cause even where circumstances of each search required

6 reasonableness inquiry); Arrington v. City of Philadelphia, 1989 U.S. Dist. LEXIS 19117, at

7 *10-*12 (E.D. Pa. 1989) (class of 400 individuals stopped in investigation even though

8 individual inquiries required for each stop).5 Furthermore, Defendants will bear the burden of

9 proving the existence of probable cause. See, e.g. State v. Mance, 82 Wn.App. 539, 544-45, 918 10 P.2d 527 (1996); Schnepp v. Hocker, 429 F.2d 1096, 1099 n.5 (9th Cir. 1970). Yet Defendants

11 have not indicated how they plan to carry that burden for any Class member, or whether there is

12 any proof of individualized determinations of probable cause for any Class member. The arrest

13 records for the Class certainly do not provide any such proof – they provide the exact same

14 explanation for every Class member’s arrest.

15

Defendants’ suggested “alternative” offenses are entirely speculative and conveniently

16 overlook the undisputed facts. Defendants suggest that the Class members could be charged

17 with (1) blocking traffic, (2) congregating with others so as to block traffic, or (3) conducting a

18 parade without a permit. These offenses have no factual basis; it is undisputed that Class 19 members attempted to leave the area but were stopped by the police. See Second Motion at 3-5.6

20

Defendants also discuss at length the fact that Plaintiffs Hickey and Jackson were not

21 herded with other Class members before being arrested. It is true that members of the Class

22 likely arrived at First and Broad under slightly different circumstances, some being herded,

23
5 For the Court’s convenience, all unpublished authorities cited herein are attached to this motion as an

24 Appendix In Support of Plaintiffs’ Reply Memorandum in Support of Second Motion for Class Certification.

6 In addition, it must be noted that all of the suggested alternative offenses would either apply to the entire Class
25 or not at all. If any Class member could have been arrested for blocking traffic, then all of the Class members could

have been arrested for the same crime because they were corralled in the same area. In addition, the other suggested

26

alternative offenses – congregating and conducting a parade without a permit – are necessarily group offenses that would apply to the entire Class or not at all. There can be no one-person parade or congregation.

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1 others not, but that does not change the fact that they were all – including Plaintiffs Hickey and

2 Jackson – arrested en masse without any concern for those individual circumstances, at the same

3 location, the same time, under the same order, and for the same erroneous reason.

4

Defendants also suggest the Court would have to perform individual inquiries as to

5 whether a particular person was engaging in protected “speech” or “assembly” for the purposes

6 of the First Amendment. However, even assuming that is an accurate statement of law, it does

7 not mean that the Class does not satisfy the commonality requirement. In any event, whether or

8 not the Class members were engaged in protected “speech” or “assembly” at the time of arrest is

9 a question of law and fact common to the Class because they were all in the same group and the

10 same location at the time of arrest, and the question of whether Defendants arrested the Class for

11 exercising their rights will also be a common issue. Furthermore, Defendants’ claim that the

12 mass arrest at issue might involve “a reasonable time, place, and manner restriction” creates yet

13 another common issue – was the order to arrest the Class members such a restriction?

14 C. Plaintiffs Hickey and Jackson’s Claims Are Typical of the Class

15

Defendants claim that Plaintiffs Hickey and Jackson’s claims are not typical of the Class

16 because they were not herded before being arrested. This is incorrect. “The test of typicality

17 refers to the nature of the claim . . . of the class representative, and not to the specific facts from

18 which it arose . . . .” Jones v. Shalala, 64 F.3d 510, 514 (9th Cir. 1995) (emphasis added). The

19 focus is on whether the representatives have the same claims, and rely on the same legal theory,

20 as the rest of the Class. See Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992).

21 Plaintiffs Hickey and Jackson clearly satisfy the standard. Like every other Class member, they

22 were arrested at or near First and Broad on December 1, 1999, without probable cause, for

23 allegedly entering the No-Protest Zone. Their arrest records are for all intensive purposes

24 identical to those of every Class member (Compare Weaver Decl., Exs. C and D, and G through

25 R), and their claims rest on the exact same legal theory as the rest of the Class members’ claims.

26

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1 D. Plaintiffs Hickey and Jackson Are Adequate Representatives

2

Defendants argue that Hickey and Jackson are not adequate representatives because they

3 cannot advance the costs of litigation. However, Plaintiffs have more than sufficient resources to

4 represent the Class. Weaver Reply Decl., ¶ 6. See also Rand v. Monsanto Co., 926 F.2d 596,

5 599-600 (7th Cir. 1991) (resources of counsel can serve to establish adequacy).

6

VI. THE CLASS SATISFIES THE REQUIREMENTS OF RULE 23(B)(3)

7 A. Common Questions Predominate

8

Defendants claim that the Class falls short of the requirements of Rule 23(b)(3) because

9 individual issues would predominate in this case. However, their argument is baseless. The

10 “predominance” requirement is satisfied wherever “common questions present a significant

11 aspect of the case and may be resolved for all members of the class in a single adjudication.” See

12 Hanlon v. Chrysler Corp., 150 F.3d 1011, 1022 (9th Cir. 1998). Common legal and factual issues

13 dominate the claims of the Class. There are numerous common factual and legal issues, many of

14 which are outlined in Plaintiffs’ motion as well as Section V.B, above.

15

In contrast, the individual issues Defendants focus on are either not issues at all, or are

16 secondary to the common issues. For example, Defendants’ claim that identification of the Class

17 would require significant individual inquiry is groundless. See Section IV, above. Similarly,

18 Defendants’ argument that issues regarding probable cause, reasonableness, and other individual

19 circumstances giving rise to arrest present too many individual issues are pure speculation. See

20 Section V.B, above. Defendants did not note any individual circumstances at the time of arrest.

21 Also, Defendants’ arguments regarding free-speech serve only to raise common issues. Id.

22

This case is similar to a number of cases in which courts have found that because a

23 defendant arrested or searched a large group of people for the same reason, common issues

24 predominated over any issues concerning the particular circumstances of individual arrests. In

25 Maneely, for example, plaintiffs alleged the defendant had a policy of strip-searching inmates

26 without probable cause. Even though the claims required a case-by-case analysis, the court

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1 found that the common questions concerning the constitutionality of the defendants’ policy

2 predominated because the need for inquiries was merely a problem of manageability. See 208

3 F.R.D. at 76-78. Similarly, in this case, even assuming that Defendants can substantiate their

4 bald assertion that there are individualized defenses to each arrest, common issues predominate,

5 particularly the common issues of whether the City had a policy to arrest all protesters regardless

6 of whether they were in the No-Protest Zone (and the constitutionality of such a policy) and

7 whether the order to arrest all Class members without regard to probable cause was

8 constitutional. See also, e.g., Patrykus v. Gomilla, 121 F.R.D. 361, 363 (N.D. Ill. 1988) (where

9 police entered bar and arrested or searched 50 people in single incident, common issues

10 predominated); Abramovitz, 96 F.R.D. at 217 (in case alleging illegal wiretaps, common issues

11 predominated even where inquiry necessary for each tap); Cliett v. City of Philadelphia, 1985

12 U.S. Dist. LEXIS 14832, at *5-*6 (E.D. Pa. 1985) (where defendants searched 1400 people,

13 common issues of constitutionality predominated despite need for inquiry into each arrest).

14

Defendants’ reliance on In re Dalkon Shield IUD Prods. Liab. Litig., 693 F.2d 847 (9th

15 Cir. 1982) is misplaced. Individual issues predominated in that case, which alleged damages

16 from an interuterine device, because the claims required deep inquiry into the medical history of

17 each Class member to determine causation and harm. Id. at 853. The case is easily

18 distinguished. All Class members were subject to the same mass arrest in a single incident, and

19 the cause of each arrest was the same – a single arrest order given by the Seattle police.

20 B. A Class Action Would be Superior

21

Defendants also claim that a class action would not be superior, yet their arguments are

22 thin. Defendants claim that the fact that only two plaintiffs would be class representatives would

23 render litigation procedurally difficult. However, they do not indicate why that would be.

24 Plaintiffs have confidence that the Court and parties can manage both class and non-class claims.

25

Defendants also claim that the paucity of previous litigation over the mass arrest indicates

26 a class action would not be proper. However, Rule 23(b)(3)(B), which indicates that the

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1 existence of other suits is relevant, is intended to avoid conflicts with other suits already filed,

2 not to deny class certification because other suits have not been filed. See Zinser v. Accufix

3 Research Inst., Inc., 253 F.3d 1180, 1191 (9th Cir.), as amended, 273 F.3d 1266 (2001).

4

Defendants also, finally, suggest that the fact that the Class is geographically diverse

5 indicates that a class action would be inferior. To the contrary, the fact that the Court could

6 bring the common claims of a geographically diverse group together in a single forum, rather

7 than risk suits being brought across the country, indicates that a class action is superior.

8

VII. THE CLASS ALSO SATISFIES RULE 23(B)(2)

9

Defendants claim the Class cannot be certified under Rule 23(b)(2) because Plaintiffs

10 seek damages. This argument fails because Plaintiffs seek a hybrid class, with certification of

11 their damages claims under Rule 23(b)(3). As the Seventh Circuit has recognized:

12

The district court could certify a Rule 23(b)(2) class for the portion

13

of the case addressing equitable relief and a Rule 23(b)(3) class for the portion of the case addressing damages. This avoids the due

14

process problems of certifying the entire case under Rule 23(b)(2) by introducing the Rule 23(b)(3) protections of personal notice and

15

opportunity to opt out for the damages claims.

Lemon v. International Union of Operating Eng’rs, Local No. 139, 216 F.3d 577, 581 (7th Cir. 16

2000). See also Patrykus v. Gomilla, 121 F.R.D. at 363 (certifying (b)(2) and (b)(3) classes over 17

objection that “the substantial damages sought preclude certification under Rule 23(b)(2)”). 18

The City also argues that (b)(2) certification is inappropriate because Plaintiffs cannot 19

demonstrate a “common policy.” That is not the case. The “common policy” with regard to the 20
Class was, of course, the single order to arrest all of them for something they did not do. 7 21

22

VIII. CONCLUSION

23

Plaintiffs satisfy the prerequisites of Rule 23(a), and meet the requirements of Rule

24 23(b)(3) and (2). The Court should certify a Rule 23(b)(3) class. Alternatively, the Court should

25 certify a hybrid class that includes an opt-out class under Rule 23(b)(3) for damages claims.

26

7 Plaintiffs also note that there is a common issue of whether Defendants maintained a common policy that all protesters were subject to arrest, regardless of whether they were in the No-Protest Zone.

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1

DATED: October 10, 2002.

2

HAGENS BERMAN LLP

3

4

By

Steve W. Berman, WSBA #12536

5

Tyler Weaver, WSBA #29413

1301 Fifth Avenue, Suite 2900

6

Seattle, WA 98101

(206) 623-7292 7

Lead Counsel for Plaintiffs 8

Arthur Bryant

9

Victoria Ni

TRIAL LAWYERS FOR PUBLIC JUSTICE

10

One Kaiser Plaza, Suite 275

Oakland, CA 94612-3684

11

(510) 622-8150

12

Michael E. Withey

STRITMATTER KESSLER WHELAN WITHEY

13

COLUCCIO

200 Second Avenue West

14

Seattle, WA 98119-4204

(206) 448-1777 15

FRED DIAMONDSTONE

16

Attorney at Law

700 Dexter Horton Bldg

17

710 Second Ave

Seattle, WA 98104

18

(206) 568-0082

19

YVONNE KINOSHITA WARD

Attorney at Law

20

200 Second Ave. W.

Seattle, WA 98119

21

(206) 628-8686

22

John Muenster

MUENSTER & KOENIG

23

Wells Fargo Center

999 Third Ave., Suite 4100

24

Seattle, WA 98104

25

26

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1

ERWIN CHEMERISNKY

Professor of Law

2

Univ. of So. Calif. Law School

University Park

3

Los Angeles, CA 90089-0071

4

Counsel for Plaintiffs

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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 U.S. District Court United States District Court for the Western District of Washington (Seattle)
CIVIL DOCKET FOR CASE #: 2:00-cv-01672-MJP

Hankin et al v. Seattle City of, et al Assigned to: Judge Marsha J. Pechman Demand: $0 Cause: 42:1983 Civil Rights Act

Date Filed: 10/02/2000 Date Terminated: 10/26/2007 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff Robert Hickey

represented by Arthur H Bryant TRIAL LAWYERS FOR PUBLIC JUSTICE (OAKLAND) 555 TWELFTH ST STE 1620 OAKLAND, CA 94607-3616 510-622-8150 Email: abryant@tlpj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Benjamin A. Schwartzman ANDERSON BANDUCCI SCHWARTZMAN WOODWARD BRAILSFORD PLLC 101 S. CAPITOL BLVD., STE 1600 BOISE, ID 83702 208-342-4411 Fax: 208-342-4455 Email: bas@aswdpllc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Fred Diamondstone 1218 THIRD AVENUE SUITE 1000 SEATTLE, WA 98101 206-568-0082 Fax: 206-568-1683 Email: fdiamondstone@seanet.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Leslie A Bailey TRIAL LAWYERS FOR PUBLIC JUSTICE (OAKLAND) 555 TWELFTH ST STE 1620 OAKLAND, CA 94607-3616 510-622-8150 Email: lbailey@publicjustice.net LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey LAW OFFICE OF MIKE WITHEY TWO UNION SQUARE 601 UNION ST STE 4200 SEATTLE, WA 98101 206-405-1800 Email: mike@witheylaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2ND AVENUE STE 2000 SEATTLE, WA 98101 206-623-7292 Fax: 206-623-0594 Email: steve@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tyler Weaver HAGENS BERMAN SOBOL SHAPIRO LLP (WA) 1301 2ND AVENUE STE 2000 SEATTLE, WA 98101 206-623-7292 Fax: FAX 623-0594 Email: tyler@hbsslaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Kenneth Hankin TERMINATED: 10/26/2007

Victoria Ni TRIAL LAWYERS FOR PUBLIC JUSTICE (OAKLAND) 555 TWELFTH ST STE 1620 OAKLAND, CA 94607-3616 510-622-8150 Email: vni@tlpj.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster MUENSTER & KOENIG 14940 SUNRISE DRIVE NE BAINBRIDGE ISLAND, WA 98110 206-467-7500 Fax: FAX 467-0101 Email: jmkk1613@aol.com ATTORNEY TO BE NOTICED
represented by Arthur H Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin A. Schwartzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Jennifer Hudziec TERMINATED: 10/26/2007

Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Ni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur H Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin A. Schwartzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman

Plaintiff
Stephanie Lane on behalf of themselves and all others similarly situated TERMINATED: 10/26/2007

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Ni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Arthur H Bryant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Benjamin A. Schwartzman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY

Plaintiff Carroll Jackson

ATTORNEY TO BE NOTICED
Tyler Weaver (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Victoria Ni (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
represented by Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Michael S McNamara PILLSBURY WINTHROP SHAW PITTMAN (DC) 1200 SEVENTEENTH STREET, NW WASHINGTON, DC 20036-3004

Plaintiff Denise Cooper TERMINATED: 10/26/2007
Plaintiff Nicole Pearson TERMINATED: 07/26/2006

206-663-9386 Email: michael.mcnamara@pillsburylaw.com TERMINATED: 11/13/2002
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Michael S McNamara (See above for address) TERMINATED: 11/13/2002
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Fred Diamondstone (See above for address)

Plaintiff
Emily Maloney on behalf of themselves and all others similarly situated

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Michael S McNamara (See above for address) TERMINATED: 11/13/2002
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Fred Diamondstone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie A Bailey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael E Withey (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steve W. Berman (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Seattle City of a municipality

John Rolfing Muenster (See above for address) ATTORNEY TO BE NOTICED
Michael S McNamara (See above for address) TERMINATED: 11/13/2002
Tyler Weaver (See above for address) ATTORNEY TO BE NOTICED
represented by Heather L Carr STAFFORD FREY COOPER 601 UNION ST 3100 TWO UNION SQ SEATTLE, WA 98101 206-623-9900 Fax: FAX 624-6885 Email: hcarr@staffordfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Powell Larson FREY BUCK PS 1200 FIFTH AVENUE STE 1900 SEATTLE, WA 98101 206-486-8000 Fax: 206-902-9660 Email: slarson@freybuck.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theron A Buck FREY BUCK PS 1200 FIFTH AVENUE STE 1900 SEATTLE, WA 98101 206-486-8000 Email: tbuck@freybuck.com LEAD ATTORNEY

Defendant
Paul Schell Mayor of the City of Seattle

ATTORNEY TO BE NOTICED
Thomas Sean Sheehan LEWIS BRISBOIS BISGAARD & SMITH LLP (SEATTLE) 1111 THIRD AVE STE 2700 SEATTLE, WA 98101 206-436-2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Melani Bremner FREY BUCK PS 1200 FIFTH AVENUE STE 1900 SEATTLE, WA 98101 206-486-8000 Fax: 206-902-9660 Email: abremner@freybuck.com TERMINATED: 06/14/2006
Karen L Cobb FREY BUCK PS 1200 FIFTH AVENUE STE 1900 SEATTLE, WA 98101 206-486-8000 Fax: 206-902-9660 Email: kcobb@freybuck.com ATTORNEY TO BE NOTICED
Lisa M Marchese DAVIS WRIGHT TREMAINE (SEA) 920 FIFTH AVE STE 3300 SEATTLE, WA 98104-1610 206-622-3150 Fax: 206-757-7700 Email: lisamarchese@dwt.com TERMINATED: 06/14/2006
represented by Heather L Carr (See above for address)

Defendant
Norman Stamper Former Chief of Police of the City of Seattle

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Powell Larson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theron A Buck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Sean Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anne Melani Bremner (See above for address) TERMINATED: 06/14/2006
Lisa M Marchese (See above for address) TERMINATED: 06/14/2006
represented by Heather L Carr (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Stephen Powell Larson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Theron A Buck (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Sean Sheehan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anne Melani Bremner (See above for address) TERMINATED: 06/14/2006
Lisa M Marchese (See above for address) TERMINATED: 06/14/2006

Date Filed
10/02 /2000
10/06 /2000
10/16 /2000
10/20 /2000
11/01 /2000
11/07 /2000
12/07 /2000
12/20 /2000
12/20 /2000
12/20 /2000
12/20 /2000

# Docket Text
1 CLASS ACTION COMPLAINT (Summons(es) issued) Receipt # 400810 (KERR) (Entered: 10/10/2000)
2 RETURN OF SERVICE of summons and complaint executed upon defendant Seattle City of, defendant Paul Schell on 10/4/00 (KERR) (Entered: 10/12/2000)
3 RETURN OF SERVICE of summons and complaint executed upon defendant Norman Stamper on 10/11/00 (RS) (Entered: 10/19/2000)
4 ATTORNEY APPEARANCE for defendant by Stephen Powell Larson, Theron A Buck, Anne Melani Bremner, Lisa M Marchese, Thomas Sean Sheehan (VK) (Entered: 10/24/2000)
5 ANSWER to complaint [1-1] by defendants (RS) (Entered: 11/06/2000)
6 ORDER/NOTICE OF JOINT STATUS REPORT Joint Status Report due 12/7/00 (cc: counsel, Judge) (KERR) (Entered: 11/07/2000)
7 JOINT STATUS REPORT filed by all parties. Est. Trial Days: 10 (VK) (Entered: 12/12/2000)
8 MOTION by plaintiff to extend CR23 ddl for class certification NOTED FOR 1/5/01 (KERR) (Entered: 12/20/2000)
9 MEMORANDUM by plaintiffs in support of motion to extend CR23 ddl for class certification [8-1] (KERR) (Entered: 12/20/2000)
10 APPENDIX OF CASES filed by plaintiff re: memorandum in support [91] (KERR) (Entered: 12/20/2000)
LODGED ORDER: re: motion to extend CR23 ddl for class certification [8-1] (KERR) (Entered: 12/20/2000)

12/20 /2000
12/20 /2000 12/20 /2000 12/22 /2000
12/27 /2000
01/09 /2001 01/09 /2001
02/21 /2001 02/27 /2001 03/26 /2001 03/26 /2001

11 MOTION by plaintiff to shorten time on motion to extend CR23 ddl for class certification [8-1] NOTED FOR 12/22/00 (KERR) (Entered: 12/20/2000)
LODGED ORDER: re: motion to shorten time on motion to extend CR23 ddl for class certification [8-1] [11-1] (KERR) (Entered: 12/20/2000)
12 AFFIDAVIT OF SERVICE by plaintiff of motion to extend CR23 ddl for class certification [8-1] etc (KERR) (Entered: 12/20/2000)
13 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion to shorten time on motion to extend CR23 ddl for class certification [8-1] [11-1], RE-NOTED FOR 12/27/00 motion to extend CR23 ddl for class certification [8-1] (cc: counsel, Judge) (MD) (Entered: 12/22/2000)
14 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion to extend CR23 ddl for class certification [8-1]. The new deadline for pltfs' filing of a motion for class certification is set for 4/5/01. (cc: counsel, Judge) (MD) (Entered: 12/27/2000)
15 ORDER re: DISCOVERY and DEPOSITIONS by Judge Barbara J. Rothstein (cc: counsel, Judge) (KERR) (Entered: 01/09/2001)
16 ORDER SETTING TRIAL and PRETRIAL SCHEDULES and Designating case under Local Rule CR 39.1 by Judge Barbara Jacobs Rothstein: Deadline to Join Additional Parties is 3/26/01 ; Jury trial set for 9:30 12/10/01 ; Pretrial Order set for 11/12/01 ; Trial briefs to be submitted by 11/26/01 ; Voir dire/jury instructions deadline: 11/26/01 ; Motions in Limine deadline 11/26/01 ; Motion filing ddl 9/6/01 ; 39.1 designation effective 8/24/01 ; Discovery deadline set for 8/27/01 ; Disclose Expert Witnesses by 7/9/01 ; Disclose Rebuttal Expert Witnesses by 8/6/01 ; Jury Trial set for 14 days (cc: counsel, Judge) (KERR) (Entered: 01/09/2001)
17 NOTICE by plaintiffs of taking depo of Norman Stamper on 3/12/01 at 9:00 am (KERR) (Entered: 02/23/2001)
LODGED ORDER: re: production of jail records from the King Cty Dept of Adult and Juvenile detention (KERR) (Entered: 03/05/2001)
18 MOTION AND SUBJOINED BRIEF IN SUPPORT by plaintiffs to amend complaint NOTED FOR 4/13/01 (KERR) (Entered: 03/27/2001)
PROPOSED AMENDED COMPLAINT re: motion to amend complaint [18-1] (KERR) (Entered: 03/27/2001)

03/26 /2001 03/26 /2001 04/10 /2001 04/13 /2001
04/13 /2001
04/13 /2001
04/13 /2001
07/26 /2001 07/26 /2001 07/26 /2001 07/26 /2001 07/26 /2001
07/26 /2001 07/26 /2001

LODGED ORDER: re: motion to amend complaint [18-1] (KERR) (Entered: 03/27/2001)
19 AFFIDAVIT OF SERVICE by plaintiffs of motion to amend complaint [18-1] etc (KERR) (Entered: 03/27/2001)
20 NOTICE of Unavailability of counsel Theron A Buck for defendant Norman Stamper from 4/10/01 to 4/23/01 (KERR) (Entered: 04/11/2001)
21 APPLICATION by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane AND ORDER admitting Victoria Ni pro hac vice. Receipt # 801519 (cc: counsel, Judge) (KERR) (Entered: 04/13/2001)
22 APPLICATION by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane AND ORDER admitting Arthur H Bryant pro hac vice. Receipt # 801519 (cc: counsel, Judge) (KERR) (Entered: 04/13/2001)
23 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion to amend complaint [18-1] (cc: counsel, Judge) (KERR) (Entered: 04/13/2001)
24 AMENDED CLASS ACTION COMPLAINT [1-1] by plaintiffs; adding Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney (KERR) (Entered: 04/18/2001)
25 MOTION by plaintiffs for order granting class certification NOTED FOR 8/10/01 (CL) (Entered: 07/27/2001)
26 DECLARATION of Steve W. Berman by plaintiffs in support of motion for order granting class certification [25-1] (CL) (Entered: 07/27/2001)
27 DECLARATION of Arthur H. Bryant by plaintiffs in support of motion for order granting class certification [25-1] (CL) (Entered: 07/27/2001)
LODGED ORDER: re: motion for order granting class certification [251] (CL) (Entered: 07/27/2001)
28 APPENDIX of unpublished authorities filed by plaintiffs in support of motion for order granting class certification [25-1] (CL) (Entered: 07/27/2001)
29 MOTION by plaintiffs for leave to file overlength br in support of mtn for class cert. NOTED FOR 8/10/01 (CL) (Entered: 07/27/2001)
PROPOSED Mem in Support of mtn for class certf. re: motion for order granting class certification [25-1] (CL) (Entered: 07/27/2001)

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08/06 /2001
08/06 /2001

LODGED ORDER: re: motion for leave to file overlength br in support of mtn for class cert. [29-1] (CL) (Entered: 07/27/2001)
LODGED ORDER: re: motion for leave to file overlength br in support of mtn for class cert. [29-1] (CL) (Entered: 07/27/2001)
30 MOTION by plaintiffs for entry of revised case schedule order NOTED FOR 8/10/01 (CL) (Entered: 07/27/2001)
31 DECLARATION of Michael S. McNamara by plaintiffs in support of motion for entry of revised case schedule order [30-1] (CL) (Entered: 07/27/2001)
LODGED ORDER: re: motion for entry of revised case schedule order [30-1] (CL) (Entered: 07/27/2001)
32 AFFIDAVIT OF SERVICE by plaintiffs of motion for leave to file overlength br in support of mtn for class cert. [29-1], etc. (CL) (Entered: 07/27/2001)
33 MOTION by defendant Seattle City of for leave to file an overlength brief in opposition to pltf's motion for class certification NOTED FOR 8/10/01 (MD) (Entered: 08/07/2001)
LODGED ORDER: re: motion for leave to file an overlength brief in opposition to pltf's motion for class certification [33-1] (MD) (Entered: 08/07/2001)
PROPOSED Defts' opposition to re: motion for leave to file an overlength brief in opposition to pltf's motion for class certification [33-1] (MD) (Entered: 08/07/2001)
34 DECLARATION of Heather Carr in opposition to re motion for order granting class certification [25-1] (MD) (Entered: 08/07/2001)
35 DECLARATION of Dori M. Sutton in opposition re motion for order granting class certification [25-1] (MD) (Entered: 08/07/2001)
36 DECLARATION of Lisa M. Marchese in opposition re motion for order granting class certification [25-1] (MD) (Entered: 08/07/2001)
37 DECLARATION of Ted Buck re motion for entry of revised case schedule order [30-1] (MD) (Entered: 08/07/2001)
LODGED ORDER: re: denying pltfs' motion for order granting class certification [25-1] (MD) (Entered: 08/07/2001)

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38 PRAECIPE: by defendant w/copy of opposition re: motion for entry of revised case schedule order [30-1] (MD) (Entered: 08/09/2001)
LODGED ORDER: re: denying pltfs' motion for order granting class certification [25-1] (MD) (Entered: 08/09/2001)
39 AFFIDAVIT OF SERVICE by defendant of declaration [37-1] et al (MD) (Entered: 08/09/2001)
LODGED ORDER: stipulation and order extending deadline for pltfs' class certification reply brief, renoting class certification hearing and withdrawing pltfs' motion for entry of revised case schedule (MD) (Entered: 08/10/2001)
40 STIPULATION and ORDER by Judge Barbara J. Rothstein : renoting pltfs' motion for order granting class certification [25-1] for 8/17/01; withdrawing pltfs' motion for entry of revised case schedule order [30-1] (cc: counsel, Judge) (RS) (Entered: 08/10/2001)
LODGED STIPULATION EXTENDING DEADLINE FOR PLTFS' CLASS CERTIFICATION REPLY BR AND RENOTING CLASS CERTIFICATION HRG, AND ORDER (CL) Modified on 08/15/2001 (Entered: 08/15/2001)
41 STIPULATION and ORDER by Judge Barbara J. Rothstein : renoting pltfs' motion for order granting class certification [25-1] to 8/24/01; reply due 8/23/01 (cc: counsel, Judge) (RS) (Entered: 08/17/2001)
42 ORDER by Judge Barbara J. Rothstein GRANTING motion for leave to file an overlength brief in opposition to pltf's motion for class certification [33-1] (cc: counsel, Judge) (ZG) (Entered: 08/20/2001)
43 MOTION by plaintiff for leave to file overlength reply brief NOTED FOR 9/7/01 (ZG) (Entered: 08/24/2001)
44 MOTION by plaintiffs to shorten time on motion for leave to file overlength reply brief [43-1] NOTED FOR 8/27/01 (ZG) (Entered: 08/24/2001)
PROPOSED reply brief in support of class certification (ZG) (Entered: 08/24/2001)
LODGED ORDER: granting plas' motion to shorten time and leave to file overlength brief (ZG) (Entered: 08/24/2001)
45 REPLY DECLARATION of Steve W. Berman by plaintiffs' re motion for order granting class certification [25-1] (w/cd format exhibit #6) (ZG) Modified on 08/27/2001 (Entered: 08/27/2001)

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46 AFFIDAVIT OF SERVICE by plaintiffs' of reply declaration [45-1] (ZG) (Entered: 08/27/2001)
47 ORDER by Judge Barbara J. Rothstein REFERRING to Magistrate Judge John L. Weinberg the motion for order granting class certification [25-1] (cc: counsel, Judge) (RS) (Entered: 09/04/2001)
48 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion to shorten time and pltfs' underlying motion for leave to file overlength reply brief [43-1] in support of motion for class certif(cc: counsel, Judge) (RS) (Entered: 09/12/2001)
49 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion for leave to file overlength br in support of mtn for class cert. [29-1] (cc: counsel, Judge) (RS) (Entered: 09/12/2001)
50 NOTICE by plaintiff of change of address (RY) (Entered: 09/14/2001)
51 MEMORANDUM by plaintiff in support of motion for order granting class certification [25-1] (RS) (Entered: 09/26/2001)
52 REPLY by plaintiff TO RESPONSE to motion for order granting class certification [25-1] (RS) (Entered: 09/26/2001)
53 RESPONSE by defendants to motion for order granting class certification [25-1] (RS) (Entered: 09/26/2001)
54 ANSWER TO PLAINTIFF' AMENDED CLASS ACTION complaint [24-1] by defendant (dktclk) (Entered: 10/11/2001)
55 ORDER by Judge Barbara J. Rothstein granting in part and denying in part dfts' motion for summary jgm and denying pltfs' cross-motion for summary jgm (cc: counsel, Judge) (RS) (Entered: 10/31/2001)
56 ORDER by Magistrate Judge John L. Weinberg. Parties are directed to file supplemental memoranda re the impact of the District Court's sum jgm rulings on Rule 23 mtn for class certification. RE-NOTED FOR 11/16/01 motion for order granting class certification [25-1] (cc: counsel, Judge) (CL) (Entered: 10/31/2001)
57 MOTION by plaintiffs to clarify order on summary jgm. and for entry of rule 54(B) order NOTED FOR 11/30/01 (RY) (Entered: 11/16/2001)
58 MEMORANDUM by plaintiffs in support of motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (RY) (Entered: 11/16/2001)

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LODGED ORDER: re: motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (RY) (Entered: 11/16/2001)
59 AFFIDAVIT OF SERVICE by plaintiffs motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] etc (RY) (Entered: 11/16/2001)
60 MOTION by plaintiffs to stay consideration of class certification NOTED FOR 11/30/01 (RS) (Entered: 11/16/2001)
61 MEMORANDUM by plaintiff in support of motion to stay consideration of class certification [60-1] (RS) (Entered: 11/16/2001)
62 MOTION by plaintiff to shorten time on motion to stay consideration of class certification [60-1] NOTED FOR 11/19/01 (RS) (Entered: 11/16/2001)
LODGED ORDER: re: motion to shorten time on motion to stay consideration of class certification [60-1] [62-1], re: motion to stay consideration of class certification [60-1] (RS) (Entered: 11/16/2001)
63 AFFIDAVIT OF SERVICE by plaintiff motion to stay consideration of class certification [60-1] (RS) (Entered: 11/16/2001)
71 RESPONSE by defendant Seattle City of, defendant Paul Schell, defendant Norman Stamper to pla's motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (ZG) (Entered: 11/20/2001)
72 SUPPLEMENTAL BRIEF IN OPPOSITION by defendant Seattle City of, defendant Paul Schell, defendant Norman Stamper in opposition to motion clarify order on summary jgm. [57-1] (ZG) Modified on 11/20/2001 (Entered: 11/20/2001)
64 MOTION by plaintiffs to stay consideration of class certification NOTED FOR 12/7/01 (incorrectly noted for 11/30/01, atty called) (MH) (Entered: 11/19/2001)
65 BRIEF by plaintiffs in support of motion to stay consideration of class certification [64-1] and BRIEF addressing impact of District Court's summary judgment ruling on pla's class certification motion (MH) (Entered: 11/19/2001)
66 MOTION by plaintiffs to shorten time on motion to stay consideration of class certification [64-1] NOTED FOR 11/16/01 (MH) (Entered: 11/19/2001)

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LODGED ORDER: re: motion to shorten time on motion to stay consideration of class certification [64-1] [66-1] (MH) (Entered: 11/19/2001)
67 AFFIDAVIT OF SERVICE by plaintiffs re motion to stay consideration of class certification [64-1] etc (MH) (Entered: 11/19/2001)
68 RESPONSE/OBJECTION by defendants to motion to shorten time on motion to stay consideration of class certification [64-1] [66-1], motion to stay consideration of class certification [64-1] (MH) (Entered: 11/19/2001)
69 MINUTE ORDER: by Judge Barbara J. Rothstein renoting pltfs' motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] for 11/30/01; the 12/10/01 trial date is vacated (cc: counsel, Judge) (RS) (Entered: 11/20/2001)
70 ORDER by Magistrate Judge John L. Weinberg RE-NOTED FOR 12/28/01 pltf's motion for order granting class certification [25-1]; STRIKING petitioner's motion to shorten time on motion to stay consideration of class certification [60-1] [62-1], STRIKING motion to stay consideration of class certification [60-1] (cc: counsel, Judge) (CL) (Entered: 11/20/2001)
73 NOTICE by plaintiff that the following is NOTED FOR 12/7/01 motion to stay consideration of class certification (CL) (Entered: 11/26/2001)
74 RESPONSE by defendants to motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (RS) (Entered: 11/30/2001)
75 REPLY by plaintiff TO RESPONSE to motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (VK) (Entered: 12/05/2001)
Amended LODGED ORDER: re: motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (VK) (Entered: 12/05/2001)
76 AFFIDAVIT OF SERVICE by plaintiff motion reply [75-1] etc. (VK) (Entered: 12/05/2001)
77 ORDER by Judge Barbara J. Rothstein re pltfs' motion to clarify order on summary jgm. and for entry of rule 54(B) order [57-1] (cc: counsel, Judge) (RS) (Entered: 12/10/2001)
78 SUPPLEMENTAL BRIEF by plaintiffs to motion for order granting class certification [25-1] (ZG) (Entered: 12/27/2001)

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79 SECOND SUPPLEMENTAL RESPONSE by defendants to pla's motion for order granting class certification [25-1] (ZG) (Entered: 12/27/2001)
80 REPORT AND RECOMMENDATION re denying motion for order granting class certification [25-1] by Magistrate Judge John L. Weinberg NOTED FOR 1/25/02 (cc: counsel, Judge). Objections to be noted for the 3rd. Friday after they are filed. (CL) (Entered: 01/09/2002)
LODGED ORDER: REPORT AND RECOMMENDATION re denying motion for order granting class certification [25-1] [80-1] (CL) (Entered: 01/09/2002)
81 MOTION by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane for Certificate of Appealability and for Stay Pending Appeal order NOTED FOR 2/8/02 (cc: BJR) (SA) Modified on 01/24/2002 (Entered: 01/24/2002)
PROPOSED Order Granting Certificate of Appealability re: motion for Certificate of Appealability order [81-1] (SA) (Entered: 01/24/2002)
82 AFFIDAVIT OF SERVICE by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane motion for Certificate of Appealability order [81-1] (SA) (Entered: 01/24/2002)
83 Objections to Report and Recommendation by plaintiffs (RY) (Entered: 01/25/2002)
84 ORDER by Judge Barbara J. Rothstein ADOPTING the Court's report & recommendation, DENYING plas' motion for class certification (Dkt. 25) (cc: counsel, Judge) (ZG) (Entered: 01/28/2002)
85 ORDER by Judge Barbara J. Rothstein GRANTING motion for Certificate of Appealability and for Stay Pending Appeal [81-1] (cc: counsel, BJR, CCA) (SA) (Entered: 02/13/2002)
86 ORDER (CCA)(02-80115) The Clerk shall file respondents' opposition to petitioners' petition for permission to appeal; The petition for permission to appeal is DENIED (KN) (Entered: 04/22/2002)
87 MOTION by defendants to dismiss defendants Schell and Stamper NOTED FOR 8/23/02 (LS) (Entered: 08/02/2002)
88 MEMORANDUM by defendants in support of motion to dismiss defendants Schell and Stamper [87-1] (LS) (Entered: 08/02/2002)
89 RESPONSE by plaintiff to deft's motion to dismiss defendants Schell and Stamper [87-1] (LS) (Entered: 08/20/2002)

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10/04 /2002
10/04 /2002

90 DECLARATION of Tyler S. Weaver by plaintiff re: motion response [89-1] (LS) (Entered: 08/20/2002)
LODGED ORDER: re: denying deft's motion response [89-1] (LS) (Entered: 08/20/2002)
91 AFFIDAVIT OF SERVICE by plaintiff's motion response [89-1]etc. (LS) (Entered: 08/20/2002)
92 REPLY by defendants TO RESPONSE to motion to dismiss defendants Schell and Stamper [87-1] (RS) (Entered: 08/23/2002)
93 DECLARATION of Buck by defendant re: motion reply [92-1] (RS) (Entered: 08/23/2002)
94 ORDER by Judge Barbara J. Rothstein GRANTING dfts Schell and Stamper's motion to dismiss defendants Schell and Stamper [87-1] (cc: counsel, Judge) (RS) (Entered: 08/30/2002)
95 JUDGMENT: by court granting dft Schell and Stamper's motion for summ jgm (cc: counsel, Judge, Jgm. Book) Entered on: 8/30/02 (RS) (Entered: 08/30/2002)
96 SECOND MOTION by plaintiffs for class certification NOTED FOR 9/27/02 (RS) (Entered: 09/13/2002)
97 SEALED DECLARATION of Tyler Weaver by plaintiff re motion for class certification [96-1] (RS) Modified on 8/31/2004; sealed by docket clerk MD per 253 Order (AF) (Entered: 09/13/2002)
98 DECLARATION of Steve Berman by plaintiff re motion for class certification [96-1] (RS) (Entered: 09/13/2002)
LODGED ORDER: re: motion for class certification [96-1] (RS) (Entered: 09/13/2002)
99 AFFIDAVIT OF SERVICE by plaintiff motion for class certification [961] (RS) (Entered: 09/13/2002)
100 NOTICE by plaintiffs that the following is RE-NOTED FOR 10/11/02: pltfs' second motion for class certification (AF) (Entered: 09/20/2002)
101 RESPONSE by defendants to motion for class certification [96-1] (RS) (Entered: 10/07/2002)
102 DECLARATION of Heather Carr by defendant re: motion response [1011] (RS) (Entered: 10/07/2002)

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103 REPLY by plaintiff TO RESPONSE to motion for class certification [961] (VK) (Entered: 10/15/2002)
104 DECLARATION of Tyler S. Weaver by plaintiff re: motion reply [103-1] (VK) (Entered: 10/15/2002)
105 APPENDIX filed by plaintiff re: motion reply [103-1] (VK) (Entered: 10/15/2002)
106 AFFIDAVIT OF SERVICE by plaintiff motion reply [103-1] etc. (VK) (Entered: 10/15/2002)
107 SECOND MOTION by plaintiffs for judgment NOTED FOR 11/1/02 (RS) (Entered: 10/18/2002)
108 AFFIDAVIT OF SERVICE by plaintiff motion for judgment [107-1] (RS) (Entered: 10/18/2002)
LODGED ORDER: re: motion for judgment [107-1] (RS) (Entered: 10/18/2002)
109 RESPONSE by defendants to second motion for judgment [107-1] (RS) (Entered: 10/29/2002)
110 REPLY by plaintiffs TO RESPONSE to 2nd motion for judgment [107-1] (RS) (Entered: 11/01/2002)
111 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' second motion for judgment [107-1], GRANTING pltf's second motion for class certification [96-1] (cc: counsel, Judge) (RS) (Entered: 11/06/2002)
112 JUDGMENT: by court finding against pltfs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper and Nichole Pearson (cc: counsel, Judge, Jgm. Book) Entered on: 11/8/02 (RS) (Entered: 11/08/2002)
113 NOTICE OF APPEAL (02-36027) by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane from Dist. Court decision [112-1], [111-1], [94-1], [84-1], [77-1], [55-1] (cc: CCA, Judge, counsel) (SA) Modified on 11/20/2002 (Entered: 11/14/2002)
APPEAL FEE RECEIVED: Appellant pd fee in amount of $105.00 (Receipt #603037) (SA) (Entered: 11/14/2002)
114 SUBSTITUTION OF COUNSEL on behalf of Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, attorney Tyler Weaver

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substituting attorney Michael McNamara. (cc: BJR, CCA) (SA) (Entered: 11/14/2002)
ENT-REPRESENTATION STATEMENT forwarded to CCA. (SA) (Entered: 11/14/2002)
Civil Appeals Docketing Statement, by plaintiff Robert Hickey, plaintiff Kenneth Hankin, plaintiff Jennifer Hudziec, plaintiff Stephanie Lane , forwarded to the Mediator's Office in Seattle. [113-1] (SA) (Entered: 11/14/2002)
115 AFFIDAVIT OF SERVICE by plaintiff(s) appeal, certificate of service, civil appeals docketing statement, representation statement. [113-1] (SA) (Entered: 11/14/2002)
CERTIFICATE OF RECORD Transmitted to USCA (cc: all counsel) (SA) (Entered: 11/14/2002)
APPEAL NOTIFICATION packet sent to CCA (cc: cnsl) (SA) (Entered: 11/14/2002)
116 NOTICE of Unavailability of counsel Theron A Buck for defendant Norman Stamper from 11/18/02 to 11/29/02 (VK) (Entered: 11/19/2002)
NOTIFICATION by Circuit Court of Appellate Docket Number 0236027 (SA) (Entered: 11/20/2002)
117 TIME SCHEDULE ORDER (CCA 02-36027) Appellant opening brief due 12/24/02; Appellee brief due 1/23/03; Reply brief due w/in 14 days of service of appellee brief. (SA) (Entered: 11/20/2002)
118 MOTION by plaintiffs for approval of proposed form and manner of notice to class members NOTED FOR 12/13/02 (RS) (Entered: 11/29/2002)
LODGED ORDER: re: motion for approval of proposed form and manner of notice to class members [118-1] (RS) (Entered: 11/29/2002)
119 ORDER by Judge Barbara J. Rothstein GRANTING pltfs' motion for approval of proposed form and manner of notice to class members [1181] (cc: counsel, Judge) (RS) (Entered: 12/19/2002)
LODGED ORDER: stipulated motion for entry of case schedule and order (RS) (Entered: 02/05/2003)
120 AFFIDAVIT OF SERVICE by plaintiff order lodged [0-0] (VK) (Entered: 02/05/2003)

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121 ORDER by Judge Barbara J. Rothstein jury trial set for 1/20/04; Deadline to Join Additional Parties is 4/30/03 ; Disclose Expert Witnesses by 7/21/03 ; Disclose Rebuttal Expert Witnesses by 8/25/03; discovery ddl due 9/29/03 ; 39.1 designation effective on 10/3/03 Dispositive Motions to be filed by 10/9/03 , pretrial order ddl due 12/22/03 ; trial brief ddl due 1/5/04 ; Voir dire/jy inst due 1/5/04 , Settlement Conference deadline 5/5/03 ; (cc: counsel, Judge) (LS) (Entered: 04/10/2003)
122 NOTICE by defendant of change of address (RS) (Entered: 06/09/2003)
123 MOTION to Compel Production of Arrest Records of Class Members and Related Information by Plaintiff Robert Hickey. Noting Date 7/11/2003. (Attachments: # 1Proposed Order)(EW, ) Additional attachment(s) added on 7/15/2003 (RS, ). (Entered: 07/08/2003)
124 DECLARATION of Tyler S. Weaver re 123 MOTION to Compel (EW, ) (Entered: 07/08/2003)
125 AFFIDAVIT OF SERVICE re 123 MOTION to Compel, 124 Declaration. (EW, ) (Entered: 07/08/2003)
126 RESPONSE to Motion filed by Defendant Seattle City of re 123 MOTION to Compel (RS, ) (Entered: 07/15/2003)
127 DECLARATION of Ted Buck re 126 Response to Motion by Defendant Seattle City of. (RS, ) (Entered: 07/15/2003)
128 ORDER re 123 Motion to Compel arrest records by Judge Barbara J. Rothstein. (RS, ) (Entered: 07/18/2003)
129 NOTICE to Take Deposition of Landy Black on 8/21/2003 by Plaintiff (Attachments: # 1 subpoena)(RS, ) (Entered: 07/30/2003)
130 DISCLOSURE OF EXPERT WITNESSES by pltfs (Attachments: # 1 certif of svc)(RS, ) (Entered: 07/30/2003)
132 MOTION to Authorize Discovery to Unnamed Class Members by Defendant Seattle City of. Noting Date 8/19/2003. (Attachments: # 1 Text of Proposed Order)(Temp4, ) (Entered: 08/18/2003)
133 DECLARATION of Tamara K. Nelson filed by Defendant Seattle City of in support of 132 MOTION to Authorize Discovery to Unnamed Class Members (Temp4, ) (Entered: 08/18/2003)
134 NOTICE by Defendants that the following is RE-NOTED: 132 MOTION to authorize discovery to unnamed class members Noting Date 8/29/2003. (RS, ) (Entered: 08/18/2003)

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131 MINUTE ORDER The request of the parties to continue pretrial schedules is denied.(Elizabeth Tyree) (Entered: 08/15/2003)
135 ORDER REASSIGNING CASE This matter is hereby reassigned to U.S. District Judge Marsha J. Pechman for all future proceedings. (Elizabeth Tyree) (Entered: 08/19/2003)
136 RESPONSE to Motion filed by Plaintiffs Robert Hickey, et. al. in opposition to 132 MOTION to Authorize Discovery of Class Members (Attachments: # 1 Text of Proposed Order; # 2 Certificate of Service)(Temp4, ) (Entered: 08/26/2003)
137 DECLARATION of Tyler S. Weaver filed by Plaintiffs Robert Hickey, et. al. in support of 136 Plaintiffs' Opposition to Motion to Authorize Discovery of Class Members (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 08/26/2003)
138 MOTION to Compel Amended Interrogatory Answer by Plaintiffs Robert Hickey, et. al. Noting Date 9/12/2003. (Attachments: # 1 Text of Proposed Order; # 2 Certificate of Service)(Temp4, ) (Entered: 08/26/2003)
139 DECLARATION of Tyler S. Weaver filed by Plaintiffs Robert Hickey, et. al. in support of 138 MOTION to Compel Amended Interrogatory Answer (Attachments: # 1Certificate of Service)(Temp4, ) (Entered: 08/26/2003)
140 MINUTE ORDER 132 Defendants' MOTION to Authorize Discovery to Unnamed Class Members is stricken.By Judge Marsha J. Pechman. (CS) (Entered: 09/03/2003)
141 RESPONSE to Motion filed by Defendant Seattle City of re 138 MOTION to Compel (Temp4, ) (Entered: 09/10/2003)
142 DECLARATION of Ted Buck filed by Defendant Seattle City of in support of 141 Response to Motion to Compel (Attachments: # 1 Exhibit 1-8)(Temp4, ) (Entered: 09/10/2003)
143 NOTICE to Take Deposition of Officer Thomas J Burns on 9/24/03 by Plaintiff Robert Hickey. (Attachments: # 1subpoena)(MD, ) (Entered: 09/12/2003)
145 REPLY to Response to Motion filed by Plaintiffs Robert Hickey, et. al. in support of 138 MOTION to Compel Amended Interrogatory Answer (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 09/16/2003)

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146 SECOND DECLARATION of Tyler Weaver filed by Plaintiffs Robert Hickey, et. al. in support of 138 MOTION to Compel Amended Interrogatory Answer (Attachments: # 1 Certificate of Service)(Temp4, ) (Entered: 09/16/2003)
147 CERTIFICATE OF SERVICE by Plaintiffs Robert Hickey, et al. for Stipulated Motion for Order Extending Deadline for Mediation (Temp4, ) (Entered: 09/17/2003)
144 STIPULATION AND ORDER extending deadline for mediation 39.1 Settlement Report due by 10/28/2003. by Judge Marsha J. Pechman. (MD, ) (Entered: 09/15/2003)
149 NOTICE of Unavailability of counsel Heather L Carr for Defendant Seattle City of, et al. from 9/19/03 to 9/26/03 (AF, ) (Entered: 09/25/2003)
148 NOTICE of Unavailability of counsel Theron A Buck for Defendant Seattle City of from 9/22/03 to 10/8/03 (Temp4, ) (Entered: 09/24/2003)
152 Mail Returned as Undeliverable re 144 Stipulation and Order, Set/Reset Trial Date and Related Deadlines addressed to Michael McNamara (MD, ) (Entered: 10/06/2003)
150 ORDER granting 138 Motion to Compel. Defendants shall respond fully and completely to Interrogatory Number 11 within 5 days of entry of this order. by Judge Marsha J. Pechman. (JS) (Entered: 10/03/2003)
151 CORRECTED ORDER on discovery motion. Order first sent did not bear the signature of the Judge. by Judge Marsha J. Pechman. (JS) (Entered: 10/03/2003)
153 MOTION for Summary Judgment by Defendant Seattle City of. Noting Date 10/31/2003. (Attachments: # 1 Text of Proposed Order)(AF, ) (Entered: 10/15/2003)
154 DECLARATION of James Pugel filed by Defendant Seattle City of in support of 153 MOTION for Summary Judgment. (AF, ) (Entered: 10/15/2003)
155 DECLARATION of Scott D. Bissell filed by Defendant Seattle City of in support of 153 MOTION for Summary Judgment; Exhibit 1-5; (Attachments: # 1 Exhibit 6-7# 2Exhibit 8-9# 3 Exhibit 10# 4 Exhibit 1115)(AF, ) (Entered: 10/15/2003)

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156 MOTION for Partial Summary Judgment by Plaintiffs. Noting Date 10/31/2003. (Attachments: # 1 Text of Proposed Order)Oral Argument Requested.(AF, ) (Entered: 10/15/2003)
157 SEALED DECLARATION of Tyler S. Weaver filed by Plaintiffs in support of 156 MOTION for Partial Summary Judgment; and Exhibits 14; (Attachments: # 1 Exhibit 5-7# 2 Exhibit 8-9# 3 Exhibit 1017# 4 Exhibit 18-23# 5 Exhibit 24-27# 6 Exhibit 28-30# 7 Exhibit 31)(AF, ) Modified on 8/31/2004; Sealed by docket clerk MD per 253Order (AF) (Entered: 10/15/2003)
158 DECLARATION of Michael Anderson filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
159 DECLARATION of Max T. Beagarie filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
160 DECLARATION of Estelle Davis filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
161 DECLARATION of Nancy Egan filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
162 DECLARATION of Nathaniel Eli Hastings filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
163 DECLARATION of Robert Hickey filed by Plaintiffs re 156 MOTION for Partial Summary Judgment. Exhibit 1 - Video Tape, available at the Clerk's Office. (AF, ) (Entered: 10/15/2003)
164 DECLARATION of Jonathan Rosenblum filed by Plaintiffs re 156 MOTION for Partial Summary Judgment (AF, ) (Entered: 10/15/2003)
165 CERTIFICATE OF SERVICE by Plaintiffs re 156 MOTION for Partial Summary Judgment, 157 Declaration, 158 Declaration, 159 Declaration, 160 Declar ation, 161Declaration, 162 Declaration, 163 Declaration, 164 Declaration. (AF, ) (Entered: 10/15/2003)
166 PRAECIPE to attach documents exhibit 10 to declaration of Scott D Bissell ofto in the Court file re 153 deft's MOTION for Summary Judgment. (MD, ) (Entered: 10/21/2003)

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167 RESPONSE filed by Defendant Seattle City of re 156 PLTFS' MOTION for Partial Summary Judgment (Attachments: # 1 Text of Proposed Order)(MD, ) (Entered: 10/30/2003)
168 DECLARATION of Daniel Whelan re 167 Response to Motion (MD, ) (Entered: 10/30/2003)
169 DECLARATION of Ted Buck re 167 Response to Motion (Attachments: # 1 Exhibit 1)(MD, ) (Entered: 10/30/2003)
170 RESPONSE/OPPOSITION filed by Plaintiff Robert Hickey re 153 MOTION for Summary Judgment (MD, ) (Entered: 10/30/2003)
171 DECLARATION of Tyler S Weaver re 170 Response to Motion (Attachments: # 1 Exhibit 5-8# 2 Exhibit 1-4)(MD, ) (Entered: 10/30/2003)
172 DECLARATION of Ron Judd re 170 Response to Motion (MD, ) (Entered: 10/30/2003)
173 CERTIFICATE OF SERVICE re 170 Response to Motion, 171 Declaration, 172 Declaration. (MD, ) (Entered: 10/30/2003)
174 REPLY filed by Plaintiff Robert Hickey re 156 pltfs' MOTION for Partial Summary Judgment (MD, ) (Entered: 11/04/2003)
175 CERTIFICATE OF SERVICE re 174 Reply to Response to Motion. (MD, ) (Entered: 11/04/2003)
176 REPLY filed by Defendant Seattle City of re 153 MOTION for Summary Judgment (MD, ) (Entered: 11/04/2003)
177 DECLARATION of Ted Buck re 170 Response to Motion (MD, ) (Entered: 11/04/2003)
178 DECLARATION of Tyler S Weaver re 167 Response to Motion (Attachments: # 1 Exhibit 1 pg 1-17# 2 Exhibit pg1-10# 3 Exhibit pg1120# 4 Exhibit pg 21-27# 5 Exhibit 2# 6 Exhibit 3)(MD, ) (Entered: 11/04/2003)
179 RESPONSE/OPPOSITION by Plaintiffs to the City's Motion to Strike, which was contained in the City's 167 Response to Motion for partial summary judgment. (AF, ) (Entered: 11/17/2003)
180 DECLARATION of Tyler S. Weaver in support of Pltfs' 179 Opposition to the City's Motion to Strike, filed by Plaintiffs. (Attachments: # 1 Exhibit 1-4# 2 Exhibit 5-10)(AF, ) (Entered: 11/17/2003)

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181 CERTIFICATE OF SERVICE by Plaintiffs re 179 Response/Opposition, 180 Declaration. (AF, ) (Entered: 11/17/2003)
182 REPLY to Response to Motion filed by Defendant Seattle City of re 156 MOTION for Partial Summary Judgment (Buck, Theron) (Entered: 11/18/2003)
Set/Reset Hearings: In-court Hearing on cross motions for summary judgment set for 12/5/2003 03:00 PM before Hon. Marsha J. Pechman. (JS) (Entered: 11/21/2003)
183 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Gail Glass; CR: Donna Hunter, Vernon & Associates; Pla Counsel: Tyler Weaver; Def Counsel: Ted Buck; Motion Hearing held on 12/5/2003 re 153 MOTION for Summary Judgment filed by Seattle City of, 156 MOTION for Partial Summary Judgment filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney. After hearing arguments from counsel, the court takes this matter underadvisement. (GG, ) (Entered: 12/05/2003)
189 PROPOSED ORDER (Unsigned) - Pretrial Order. (MD, ) (Entered: 01/05/2004)
190 CERTIFICATE OF SERVICE re 189 Proposed Order (Unsigned) Pretrial order. (MD, ) (Entered: 01/05/2004)
191 MOTIONS IN LIMINE to exclude evidence of unrelated events by Plaintiffs Noting Date 1/2/2004. (MD, ) (Entered: 01/05/2004)
192 MOTIONS IN LIMINE to exclude audio track from certain video exhibits by Plaintiffs Noting Date 1/2/2004. (MD, ) (Entered: 01/05/2004)
193 PROPOSED ORDER (Unsigned) re 191 192 MOTIONS IN LIMINE(MD, ) (Entered: 01/05/2004)
194 DECLARATION of Tyler Weaver re 191 MOTIONS IN LIMINE, 192 MOTIONS IN LIMINE (Attachments: # 1 Exhibit 1#; Exhibit 2 - audio tract (not scanned/given to MJP; (2) Exhibit 3-5; Exhibit 6 - not scanned-Audio Track-given to MJP;# 3 Exhibit 7)(MD, ) (Entered: 01/05/2004)
195 MOTIONS IN LIMINE by Defendant Seattle City of. Noting Date 1/2/2004. (MD, ) (Entered: 01/05/2004)

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184 ORDER granting in part and denying in part 153 defendant City of Seattle's Motion for Summary Judgment, granting in part and denying in part 156 plaintiffs' Motion for Partial Summary Judgment. by Judge Marsha J. Pechman. (JS) Additional attachment(s) added on 12/30/2003; signed order attached and unsigned order deleted (AF, ). (Entered: 12/29/2003)
185 STIPULATION AND ORDER re: Motions in limine; the deadline for filing responsive briefs to motions in limine is extended to 12/30/03; the deadline for filing reply briefs is extended to 1/5/04; by Judge Marsha J. Pechman. (AF, ) (Entered: 12/30/2003)
186 NOTICE OF DOCKET MODIFICATION re 184 Order on Cross Motions for Summary Judgment: the order sent by e-mail notification on 12/29/03 was unsigned; attached please find signed order. Document # 184 has been corrected on the docket report. (AF) (Entered: 12/30/2003)
187 RESPONSE by Defendant Seattle City of Defendant's Response to Plaintiffs' Motion in Limine to Exclude Certain Audio Tracks; noted for 01/02/04. (Buck, Theron) (Entered: 12/30/2003)
188 RESPONSE by Defendant Seattle City of City of Seattle's Response to Plaintiffs' Motion in Limine to Exclude Evidence of Unrelated Events; noted for 01/02/04. (Buck, Theron) (Entered: 12/30/2003)
201 RESPONSE/ Partial Opposition filed by Plaintiffs to Defendant City of Seattle's 195 MOTIONS IN LIMINE (AF, ) (Entered: 01/08/2004)
202 DECLARATION of Tyler Weaver filed by Plaintiffs in opposition to City's 195 MOTIONS IN LIMINE (AF, ) (Entered: 01/08/2004)
203 CERTIFICATE OF SERVICE by Plaintiffs re 201 Response/Partial Opposition, 202 Declaration. (AF, ) (Entered: 01/08/2004)
196 Proposed Voir Dire by Defendant Seattle City of (Buck, Theron) (Entered: 01/05/2004)
197 TRIAL BRIEF by Defendant Seattle City of (Buck, Theron) (Entered: 01/05/2004)
207 JOINT INSTRUCTIONS filed by Plaintiffs, Defendant. (Temp1, ) (Entered: 01/13/2004)
208 JOINT STATEMENT OF DISPUTED INSTRUCTIONS filed by Plaintiffs, Defendant. (Temp1, ) (Entered: 01/13/2004)
209 Plaintiffs' Proposed VOIR DIRE. (Temp1, ) (Entered: 01/13/2004)

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210 TRIAL BRIEF by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson (Temp1, ) (Entered: 01/13/2004)
211 Plaintiffs' Reply Regarding 192 MOTION IN LIMINE to Exclude Audio Track. Noted: January 2, 2004. (Temp1, ) (Entered: 01/13/2004)
212 Plaintiffs' REPLY Regarding 191 MOTION IN LIMINE to Exclude Evidence of Unrelated Events. Noted: January 2, 2004. (Temp1, ) (Entered: 01/13/2004)
213 CERTIFICATE OF SERVICE filed by Plaintiffs. (Temp1, ) (Entered: 01/13/2004)
198 STATEMENT Plaintiffs' Notice of Needed Revisions to Pretrial Order by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/06/2004)
199 MOTION for Reconsideration by Defendant Seattle City of. Noting Date 1/8/2004. (Buck, Theron) (Entered: 01/08/2004)
200 Proposed Jury Verdict Form by Defendant Seattle City of (Buck, Theron) (Entered: 01/08/2004)
204 ORDER denying 199 Motion for Reconsideration of the Court's December 29, 2003 order on summary judgment by Judge Marsha J. Pechman. (JS) (Entered: 01/09/2004)
205 MOTION for Reconsideration of Court's Order On Ratification by Defendant Seattle City of. Noting Date 1/12/2004. (Buck, Theron) (Entered: 01/12/2004)
206 Proposed Voir Dire by Defendant Seattle City of (Buck, Theron) (Entered: 01/12/2004)
214 AMENDED DOCUMENT by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Plaintiffs' Revised Proposed Voir Dire. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/13/2004)
215 AMENDED DOCUMENT by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Revised Pretrial Order. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/13/2004)

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216 REPLY to Response to Motion filed by Defendant Seattle City of re 191 MOTIONS IN LIMINE to Exclude Evidence of Unrelated Events (Attachments: # 1)(Bissell, Scott) (Entered: 01/13/2004)
217 REPLY to Response to Motion filed by Defendant Seattle City of re 192 MOTIONS IN LIMINE re Excluding Audio Tracks (Attachments: # 1 # 2)(Bissell, Scott) (Entered: 01/13/2004)
218 Proposed Jury Instructions by Defendant Seattle City of (Attachments: # 1 # 2 # 3)(Bissell, Scott) (Entered: 01/13/2004)
219 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; CR: Susan Palmerton; Pla Counsel: Michael Withey/Tyler Weaver; Def Counsel: Ted Buck/Scott Bissell; Pretrial Conference held on 1/8/04. Discussion re trial procedures, hours, etc. ELT: 6 day jury trial. Jury panel: 8 jurors. Voir dire: 45" eachfirst round, 30" each second round. Opening statements: 45 " each. Closing arguments: 60" each. Court directs counsel to return to Terry Carroll, mediator,for another session. PTO, jury questionaire, proposed jury instructions & voirdire & trial briefs due by noon on 1/13/04. No response necessary to motion forreconsideration unless the court asks for it. The court rules on motions in limine as follows: deft's motion re insurance: excluded, agreed. deft's opinion evidence: excluded, agreed. Discussion re other mass arrests, undisclosed witnesses & other claims & lawsuits. Final pretrial conference scheduled for1/14/04 at 2:00 p.m.(ES) (Entered: 01/14/2004)
223 PRETRIAL ORDER by Judge Marsha J. Pechman. (MD, ) (Entered: 01/15/2004)
231 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA of Norman Stamper served on 1/12/04. (MD, ) (Entered: 01/21/2004)
220 NOTICE by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson Plaintiffs' Notice of Additional Authority Regarding Disclosure of Third-Party Witnesses (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/15/2004)
221 MEMORANDUM Plaintiffs' Response to City's Arguments Regarding Paul Schell's Status as Policymaker by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. (Attachments: # 1 Declaration# 2)(Berman, Steve) (Entered: 01/15/2004)
222 Plaintiffs' Supplemental BRIEF Regarding Scope of Trial and Request for Modification by Plaintiffs Denise Cooper, Kenneth Hankin, Robert

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Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/15/2004)
224 AMENDED DOCUMENT by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Plaintiffs' Revised Proposed Instruction on Ratification. (Attachments: # 1 Certificate of Service)(Berman, Steve) (Entered: 01/15/2004)
226 SUPPLEMENTAL BRIEF by Defendant re: Undisclosed Witnesses. (Document filed by counsel via e-mail on 1/15/04 pursuant to instructions from the Clerk's Office while CM/ECF was temporarily out of service.) (SL, ) (Entered: 01/16/2004)
227 RESPONSE by Defendant to Plaintiff's Supplemental 222 Brief Regarding Scope of Trial. (Document filed by counsel via e-mail on 1/15/04 pursuant to instructions from the Clerk's Office while CM/ECF was temporarily out of service.) (SL, ) (Entered: 01/16/2004)
228 REPLY by Defendant to 221 Memorandum Re: Paul Schell's Status as Policymaker. (Document filed by counsel via e-mail on 1/15/04 pursuant to instructions from the Clerk's Office while CM/ECF was temporarily out of service.) (SL, ) (Entered: 01/16/2004)
229 DECLARATION of Ted Buck re 228 Final Policymaking Authority. (Document filed by counsel via e-mail on 1/15/04 pursuant to instructions from the Clerk's Office while CM/ECF was temporarily out of service.) (SL, ) (Entered: 01/16/2004)
230 Defendant's Supplemental Suggested Ratification Jury Instruction. (Document filed by counsel via e-mail on 1/15/04 pursuant to instructions from the Clerk's Office while CM/ECF was temporarily out of service.)(SL, ) (Entered: 01/16/2004)
232 DECLARATION OF SERVICE OF SUBPOENA on Asst. Chief James Pugel, Seattle Police Department, served on January 7, 2004. (Temp1, ) (Entered: 01/23/2004)
225 Plaintiffs' Supplemental BRIEF Regarding Disputed Audio Track by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. (Attachments: # 1 Weaver Decl.# 2 Certificate of Service)(Berman, Steve) (Entered: 01/16/2004)
233 MOTION for Order Directing Expunction of Records by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll

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Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Noting Date 3/12/2004. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Berman, Steve) (Entered: 02/26/2004)
234 MOTION to Approve Consent Judgment for Preliminary Approval of Settlement by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Noting Date 3/12/2004. (Attachments: # 1 Weaver Decl.# 2 Proposed Order # 3 Certificate of Service)(Berman, Steve) (Entered: 02/26/2004)
235 RESPONSE filed by Defendant Seattle City of re 233 MOTION for Order Directing Expunction of Records (Bissell, Scott) (Entered: 03/08/2004)
236 DECLARATION of Scott D. Bissell filed by Defendant Seattle City of re 234 MOTION to Approve Consent Judgment for Preliminary Approval of Settlement (Bissell, Scott) (Entered: 03/08/2004)
237 REPLY to Response to Motion filed by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson re 233 MOTION for Order Directing Expunction of Records (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 03/11/2004)
238 ORDER granting limited relief on 233 Motion for Order of Expunction of arrest records. by Judge Marsha J. Pechman.(JS) (Entered: 04/09/2004)
239 ORDER Granting re 234 MOTION to Approve Consent Judgment for Preliminary Approval of Settlement and approving of form and manner of notice filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney by Judge Marsha J. Pechman. (MD, ) (Entered: 04/12/2004)
240 SEALED CERTIFICATE of Completion of Expunction/Sealing by Defendant Seattle City of. (Attachments: # 1 Exhibit A)(Buck, Theron) Modified on 8/31/2004; sealed per dockert clerk MD per 253 Order (AF) (Entered: 06/04/2004)
241 MOTION for Attorney Fees and Costs and Incentive Awards by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Noting Date 7/2/2004.Oral Argument Requested. (Attachments: # 1 # 2 # 3 Certificate of Service)(Weaver, Tyler) Modified on 6/18/2004; attachments #1 and #2 are a motion & declaration; re-filed as separate documents - see Dkt # 242 and 243 (AF, ). (Entered: 06/17/2004)

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242 MOTION for Final Approval of Class Settlement by Plaintiffs. Noting Date 7/2/2004.Oral Argument Requested. [Proposed] Order attached to motion. Motion was originally electronically filed as an attachment to Dkt. #241(AF, ) (Entered: 06/18/2004)
243 DECLARATION of Tyler S. Weaver filed by Plaintiffs in support of 241 MOTION for Attorney Fees and Costs and Incentive Awards, and 242 MOTION for Final Approval of Class Settlement. Declaration was originally filed electronically as attachment to Dkt. #241 (AF, ) (Entered: 06/18/2004)
NOTICE OF DOCKET TEXT MODIFICATIONS regarding 241 Plaintiffs' MOTION for Attorney Fees and Costs and Incentive Awards: Attachments #(1) - Motion for Approval of Class Settlement, and Attachment #(2) - Declaration of Tyler S. Weaver, have been refiled as separate documents (See Dkt. #242 and #243). (AF, ) (Entered: 06/18/2004)
244 RESPONSE filed by Defendant Seattle City of re 241 MOTION for Attorney Fees and Costs and Incentive Awards (Buck, Theron) (Entered: 06/22/2004)
245 RESPONSE filed by Defendant Seattle City of re 242 MOTION for Final Approval of Class Settlement (Buck, Theron) (Entered: 06/22/2004)
246 MOTION for Consideration To Allow Late Claim by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Noting Date 7/15/2004. (Attachments: # 1 Declaration# 2 Proposed Order # 3 Certificate of Service)(Weaver, Tyler) (Entered: 07/12/2004)
247 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; CR: Susan Palmerton; Pla Counsel: Tyler Weaver; Def Counsel: Scott Bissell; Motion Hearing held on 7/15/04 re 246 MOTION for Consideration To Allow Late Claim filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney, 241 MOTION for Attorney Fees and Costs and Incentive Awards filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney, 242 MOTION for Final Approval of Class Settlement filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney. All motions are granted.Court signs proposed orders. Counsel to file motion re sealing arrest records. (ES) (Entered: 07/15/2004)

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248 ORDER granting 242 MOTION for Final Approval of Class Settlement and dismissing the claims of Robert Hickey, Carroll Jackson and the class they represent by Judge Marsha J. Pechman. (RS, ) (Entered: 07/19/2004)
249 ORDER granting 246 Motion for approval of late claim by Judge Marsha J. Pechman.(RS, ) (Entered: 07/19/2004)
250 ORDER granting 241 Motion for Attorney Fees and incentive awards by Judge Marsha J. Pechman.(RS, ) (Entered: 07/19/2004)
251 STIPULATION AND PROPOSED ORDER TO SEAL CERTAIN COURT RECORDS by parties. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) Modified text on 8/17/2004 (MD, ). (Entered: 08/13/2004)
252 NOTICE of Change of Address by Tyler Weaver (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 08/24/2004)
253 STIPULATION AND ORDER TO SEAL CERTAIN COURT RECORDS DOCKET NO. 97,157,240 (SEALED) re 251 Stipulation by Judge Marsha J. Pechman. (MD, ) (Entered: 08/25/2004)
254 AMENDED DOCUMENT by Plaintiffs Denise Cooper, Kenneth Hankin, Robert Hickey, Jennifer Hudziec, Carroll Jackson, Stephanie Lane, Emily Maloney, Nicole Pearson. Amendment to 252 Notice of Change of Address. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 08/25/2004)
255 STIPULATION for and Proposed Order of Dismissal with Prejudice [of plaintiff Emily Maloney] by parties. (Buck, Theron) Modified text on 10/28/2004 (MD, ). (Entered: 10/27/2004)
256 STIPULATION AND ORDER OF DISMISSAL WITH PREJUDICE AND WITHOUT COSTS TAXED TO EITHER PARTY re 255 Stipulation filed by Seattle City of, by Judge Marsha J. Pechman. (MD, ) (Entered: 10/28/2004)
257 MANDATE of USCA (02-36027) as to 113 Notice of Appeal, filed by Robert Hickey,, Kenneth Hankin,, Jennifer Hudziec,, Stephanie Lane, The judgment of the said district court is hereby AFFIRMED IN PART, REVERSED IN PART AND REMANDED. (SA, ) (Entered: 08/23/2005)
258 ORDER REGARDING INITIAL DISCLOSURES, JOINT STATUS REPORT AND EARLY SETTLEMENT Joint Status Report due by 11/14/2005; by Judge Marsha J. Pechman. (RP, ) (Entered: 10/12/2005)
259 JOINT STATUS REPORT filed by all parties.. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 11/14/2005)

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260 NOTICE of Appearance by attorney John Rolfing Muenster on behalf of Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper (Muenster, John) (Entered: 11/15/2005)
261 MOTION to Certify Class Third Motion For Class Certification by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper. Noting Date 2/3/2006. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)
262 DECLARATION of Tyler S. Weaver filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Exhibit D (Part 2-A, pgs. 35-51)# 2 Exhibit E-F (Part 2-B pgs. 5263)# 3 Exhibit Part 2-C Exs. G-H pgs.64-78# 4 Exhibit # 5 Exhibit Part 4 Exs. K-L# 6 Exhibit Part 5 Exs. M-P# 7 Exhibit Part 6 Exs. QS# 8 Exhibit Part 7 Exs. T-U# 9Exhibit Part 8 Exs. V-Z# 10 Exhibit Part 9 Ex. AA# 11 Exhibit Part 10 Exhibit BB)(Weaver, Tyler) (Entered: 01/19/2006)
263 DECLARATION of Jennifer Hudziec filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)
264 DECLARATION of Abraham Haim filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)
265 DECLARATION of Denise Cooper filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)
266 DECLARATION of Anandi Worden filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)

01/19 /2006
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01/26 /2006 01/30 /2006
01/30 /2006
01/31 /2006
01/31 /2006
02/01 /2006

267 DECLARATION of Stephanie Lane filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2006)
268 NOTICE of Filing Compact Discs - Dec. 1, 1999 Video Footage Of Westlake Park Arrests in paper form with the Clerk's Office by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper (Attachments: # 1 Certificate of Service)(Weaver, Tyler) Modified on 1/20/2006- 3 ring binder w/compack discs located in chambers (MD, ). (Entered: 01/19/2006)
269 MOTION to Continue Class Certification Hearing Date by Defendant Seattle City of. Noting Date 2/3/2006. (Attachments: # 1Proposed Order)(Buck, Theron) Modified/Described Attachment on 1/27/2006 (ECS, ). (Entered: 01/26/2006)
270 DECLARATION of Ted Buck filed by Defendant Seattle City of re 269 MOTION to Continue Class Certification Hearing Date (Buck, Theron) (Entered: 01/26/2006)
271 RESPONSE, by Defendant Seattle City of, to 261 MOTION to Certify Class Third Motion For Class Certification, 269 MOTION to Continue Class Certification Hearing Date. Oral Argument Requested. (Attachments: # 1 Proposed Order)(Carr, Heather) (Entered: 01/30/2006)
272 DECLARATION of Ted Buck filed by Defendant Seattle City of re 261 MOTION to Certify Class Third Motion For Class Certification, 269 MOTION to Continue Class Certification Hearing Date (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4# 5 Exhibit 5)(Carr, Heather) (Entered: 01/30/2006)
273 RESPONSE, by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, to 269MOTION to Continue Class Certification Hearing Date. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/31/2006)
274 DECLARATION of Tyler S. Weaver In Support of Plaintiffs' Opposition to Defendants 269 MOTION to Continue Class Certification Hearing Date (Attachments: # 1Certificate of Service)(Weaver, Tyler) Modified duplicative text on 2/1/2006 (ECS, ). (Entered: 01/31/2006)
275 NOTICE to Take Deposition of Stephanie Lane on Wednesday, Feb. 8, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/01/2006)

02/01 /2006 02/01 /2006 02/01 /2006 02/01 /2006 02/03 /2006
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276 NOTICE to Take Deposition of Jennifer Hudziec on Wednesday, Feb. 8, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/01/2006)
277 NOTICE to Take Deposition of Denise Cooper on Thursday, Feb. 9, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/01/2006)
278 NOTICE to Take Deposition of Kenneth Hankin on Monday, Feb. 13, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/01/2006)
279 NOTICE to Take Deposition of Nicole Pearson on Tuesday, Feb. 14, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/01/2006)
280 NOTICE of Unavailability of counsel Heather L Carr for Defendants Seattle City of, Paul Schell, Norman Stamper from 2/8/2006 to 2/10/2006 (Carr, Heather) (Entered: 02/03/2006)
281 NOTICE of Unavailability of counsel Heather L Carr for Defendants Seattle City of, Paul Schell, Norman Stamper from 3/16/2006 to 3/31/2006 (Carr, Heather) (Entered: 02/03/2006)
282 REPLY, filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, TO RESPONSE to 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 02/03/2006)
283 REPLY, filed by Defendant Seattle City of, TO RESPONSE to 269 MOTION to Continue Class Certification Hearing Date (Buck, Theron) (Entered: 02/03/2006)
284 NOTICE to Take Deposition of Kenneth Hankin on Monday, February 24, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/07/2006)
285 AMENDMENT to 284 Notice to Take Deposition Kenneth Hankin by Defendant Seattle City of. (Buck, Theron) (Entered: 02/07/2006)
286 NOTICE to Take Deposition of Denise Cooper on Thursday, February 16, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/07/2006)
287 ORDER denying 269 Motion to Continue by Judge Marsha J. Pechman.(RP, ) (Entered: 02/09/2006)
288 NOTICE of Unavailability of counsel Tyler Weaver for Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper from February

02/16 /2006 02/16 /2006
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20, 2006 to March 3, 2006 (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 02/16/2006)
289 NOTICE to Take Deposition of Jennifer Hudziec on Thursday, April 6, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/16/2006)
290 NOTICE to Take Deposition of Stephanie Lane on Wednesday, March 22, 2006 by Defendant Seattle City of.(Buck, Theron) (Entered: 02/16/2006)
291 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Abraham Haim served on 2/7/06. (MD, ) (Entered: 02/17/2006)
292 OBJECTIONS re 291 Affidavit of Service of Deposition Subpoena by Plaintiff Kenneth Hankin. (Diamondstone, Fred) (Entered: 02/17/2006)
293 RESPONSE by Defendant Seattle City of re 292 Objections re Affidavit of Service. (Attachments: # 1 Exhibit 1 through 4)(Buck, Theron) (Entered: 02/22/2006)
294 MINUTE ORDER Motion Hearing set for 4/19/2006 at 09:00 AM in Courtroom 14206 before Hon. Marsha J. Pechman. by Judge Marsha J. Pechman. (RP, ) (Entered: 03/03/2006)
295 NOTICE of Unavailability of counsel Theron A Buck for Defendant Seattle City of from April 7, 2006 to April 17, 2006 (Buck, Theron) (Entered: 04/06/2006)
Reset Hearing: In-court Hearing on Pltfs. motion for class certification scheduled for 4/19/06 is rescheduled for 5/30/06 at 4:00 p.m. before Hon. Marsha J. Pechman. An updated Joint Status Report shall be submitted by 5/25/06. Counsel should be prepared to discuss an amended case schedule at the motion hearing. (ES) (Entered: 04/10/2006)
296 STIPULATION AND PROPOSED ORDER REGARDING SECOND AMENDED CLASS ACTION COMPLAINT by parties. (Attachments: # 1 Exhibit 1# 2 Certificate of Service)(Weaver, Tyler) (Entered: 05/02/2006)
297 STIPULATION AND ORDER REGARDING SECOND AMENDED CLASS ACTION COMPLAINT re 296 Stipulation filed by by the parties by Judge Marsha J. Pechman. (MD, ) (Entered: 05/11/2006)
298 Second AMENDED COMPLAINT Part 1 pgs 1-16 against defendant(s) all plaintiffs with JURY DEMAND, filed by Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper. (Attachments: # 1 Second

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Amended Class Action Complaint Part 2 pgs 17-32# 2Certificate of Service)(Weaver, Tyler) (Entered: 05/17/2006)
299 JOINT STATUS REPORT AND SUGGESTED CASE SCHEDULE filed by all parties. Est. Trial Days: 7-10. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 05/24/2006)
300 SURREPLY filed by Defendants Seattle City of, Paul Schell, Norman Stamper re 261 MOTION to Certify Class Third Motion For Class Certification (Carr, Heather) (Entered: 05/26/2006)
301 DECLARATION of Ted Buck in Support of Supplemental Breifing in Opposition to Class Certification filed by Defendants Seattle City of, Paul Schell, Norman Stamper re 261 MOTION to Certify Class Third Motion For Class Certification (Attachments: # 1 # 2 Exhibit 2# 3 Errata 3-part 1 of 2# 4 Exhibit 3-part 2 of 2# 5 Exhibit 4-part 1 of 2# 6 Exhibit 4-part 2 of 2)(Carr, Heather) (Entered: 05/26/2006)
302 SURREPLY filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 261MOTION to Certify Class Third Motion For Class Certification Plaintiffs' Request to Strike Defendants Supplementary Briefing (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 05/29/2006)
304 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Tyler Weaver; Def Counsel: Ted Buck, et al; CR:Laurene Kelly; Time of Hearing: 1 hr; Motion Hearing held on 5/30/2006 re 261 MOTION to Certify Class Third Motion For Class Certification filed by Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole Pearson, Emily Maloney. Court hears argument and will issue written decision. (ES) (Entered: 06/05/2006)
303 ORDER granting 261 Motion to Certify Class by Judge Marsha J. Pechman.(RP, ) (Entered: 06/05/2006)
305 ORDER SETTING TRIAL DATE AND RELATED DATES; (LIABILITY PHASE) Length of Trial: *7-10 days*. Jury Trial is set for 1/8/2007 at 09:00 AM before Hon. Marsha J. Pechman. Joinder of Parties due by 7/5/2006; Amended Pleadings due by 7/15/2006; Expert Witness Disclosure/Reports under FRCP 26(a)(2) due by 7/31/2006; Motions due by 8/10/2006; Discovery completed by 10/2/2006; Dispositive motions due by 10/15/2006; Settlement conference to be held by 11/10/2006; 39.1 Settlement Report due by 10/31/2006; Settlement conference per CR39.1(c)(2) held no later than 11/10/06; Motions in Limine due by 12/10/2006; Pretrial Order due by 12/14/2006; Pretrial Conference set for

06/14 /2006 06/14 /2006
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12/15/2006 at 09:00 AM before Hon. Marsha J. Pechman. Trial briefs to be submitted by 1/2/2007; Proposed voir dire/jury instructions due by 1/2/2007; by Judge Marsha J. Pechman. (MD, ) (Entered: 06/08/2006)
306 NOTICE of Appearance by attorney Karen Cobb on behalf of Defendant Seattle City of (Cobb, Karen) (Entered: 06/14/2006)
307 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Lisa M Marchese for Defendants Seattle City of, Paul Schell, Norman Stamper. (Cobb, Karen) (Entered: 06/14/2006)
308 NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Anne Melani Bremner for Defendants Seattle City of, Paul Schell, Norman Stamper. (Cobb, Karen) (Entered: 06/14/2006)
309 NOTICE to Take Deposition of Abraham Haim on 6/22/06 by Defendant Seattle City of.(Cobb, Karen) (Entered: 06/14/2006)
310 DEPOSITION of Anandi Worden taken on June 27, 2006 by Defendants Seattle City of, Paul Schell, Norman Stamper.(Carr, Heather) (Entered: 06/14/2006)
311 MOTION Plaintiffs' Motion For Approval Of Proposed Form And Manner Of Notice To Class Members by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper. Noting Date 6/30/2006. (Attachments: # 1 Proposed Order Approving Form And Manner Of Notice To Westlake Park Class# 2 Exhibit 1 to Proposed Order Proposed Mailed Notice# 3 Exhibit 2 to Proposed Order - Proposed Published Order# 4Certificate of Service)(Weaver, Tyler) (Entered: 06/14/2006)
312 DEPOSITION of Anandi Worden taken on June 27, 2006 by Defendants Seattle City of, Paul Schell, Norman Stamper.(Carr, Heather) (Entered: 06/16/2006)
313 RESPONSE, by Defendant Seattle City of, to 311 MOTION Plaintiffs' Motion For Approval Of Proposed Form And Manner Of Notice To Class Members. (Carr, Heather) (Entered: 06/22/2006)
314 REPLY, filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, TO RESPONSE to 311 MOTION Plaintiffs' Motion For Approval Of Proposed Form And Manner Of Notice To Class Members (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 06/29/2006)

06/29 /2006
06/29 /2006
07/07 /2006
07/11 /2006
07/13 /2006
07/19 /2006 07/24 /2006
07/25 /2006
07/26 /2006
07/28 /2006

315 MOTION to Compel Production of Arrest Records Of Class Members And Related Information by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper. Noting Date 7/14/2006. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion To Compel# 2 Certificate of Service)(Weaver, Tyler) (Entered: 06/29/2006)
316 DECLARATION of Tyler S. Weaver filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper re 315 MOTION to Compel Production of Arrest Records Of Class Members And Related Information (Weaver, Tyler) (Entered: 06/29/2006)
317 ORDER denying 311 Motion for Approval of Form and Manner of Notice to Class Members by Judge Marsha J. Pechman.(RP, ) (Entered: 07/07/2006)
318 RESPONSE, by Defendant Seattle City of, to 315 MOTION to Compel Production of Arrest Records Of Class Members And Related Information. (Carr, Heather) (Entered: 07/11/2006)
319 MOTION for Approval of Proposed Form and Manner of Notice to Class Members by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. Noting Date 7/28/2006. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Weaver, Tyler) (Entered: 07/13/2006)
320 ORDER granting 315 Motion to Compel by Judge Marsha J. Pechman.(RP, ) (Entered: 07/19/2006)
321 RESPONSE, by Defendants Seattle City of, Paul Schell, Norman Stamper, to 319 MOTION for Approval of Proposed Form and Manner of Notice to Class Members. (Carr, Heather) (Entered: 07/24/2006)
322 STIPULATION AND PROPOSED ORDER DISMISSING NICOLE PEARSON AS NAMED PLAINTIFF by parties. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 07/25/2006)
323 STIPULATION AND ORDER dismissing Nicole Pearson as a Named Plaintiff re 322 Stipulation of the parties, by Judge Marsha J. Pechman. (LT, ) (Entered: 07/26/2006)
324 REPLY, filed by Plaintiffs Nicole Pearson, Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, TO RESPONSE to 319 MOTION for Approval of Proposed Form and Manner of Notice to Class Members (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 07/28/2006)

08/01 /2006
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325 ORDER granting 319 Motion approving form and manner of notice to Westlake Park Class by Judge Marsha J. Pechman.(MD, ) (Entered: 08/02/2006)
326 MINUTE ORDER Motions in Limine due by 11/3/2006; by Judge Marsha J. Pechman. (AO, ) (Entered: 10/12/2006)
327 NOTICE by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper OF FILING VIDEO ON CD-ROM WITH THE CLERK (Attachments: # 1Certificate of Service)(Weaver, Tyler) (Entered: 10/12/2006)
328 MOTION for Partial Summary Judgment by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. Noting Date 11/3/2006.Oral Argument Requested. (Attachments: # 1 Proposed Order # 2 Certificate of Service)(Weaver, Tyler) (Entered: 10/12/2006)
329 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 328 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A-N# 2 Exhibit OZ# 3 Certificate of Service)(Weaver, Tyler) (Entered: 10/12/2006)
330 DECLARATION of Jennifer Hudziec filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 328 MOTION for Partial Summary Judgment (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 10/12/2006)
331 DECLARATION of Stephanie Lane filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 328 MOTION for Partial Summary Judgment (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 10/12/2006)
332 MOTION for Summary Judgment by Defendant Seattle City of. Noting Date 11/3/2006. (Attachments: # 1 Proposed Order)(Cobb, Karen) (Entered: 10/12/2006)
333 DECLARATION of James Pugel filed by Defendant Seattle City of re 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 10/12/2006)
334 DECLARATION of Nicholas Metz filed by Defendant Seattle City of re 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 10/12/2006)
335 DECLARATION of Karen Cobb filed by Defendant Seattle City of re 332 MOTION for Summary Judgment (Attachments: # 1 Exhibit A1 to D# 2 Exhibit E to J)(Cobb, Karen) (Entered: 10/12/2006)

10/20 /2006
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336 PRAECIPE to attach document (signature page) of Nicholas Metz re 334 Declaration by Defendant Seattle City of. (Cobb, Karen) (Entered: 10/20/2006)
337 PRAECIPE to attach document (signature page) of Nicholas Metz re 334 Declaration by Defendant Seattle City of. (Attachments: # 1 Signature Page)(Cobb, Karen) (Entered: 10/20/2006)
338 STIPULATION AND PROPOSED ORDER REGARDING OVERLENGTH BRIEF by parties re 332 MOTION for Summary Judgment. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 10/23/2006)
339 STIPULATION AND ORDER re 338 Stipulation regarding over-length brief filed by Kenneth Hankin,Jennifer Hudziec,Stephanie Lane,Denise Cooper, by Judge Marsha J. Pechman. (MD, ) (Entered: 10/25/2006)
340 PRAECIPE to attach document (Signature page) to Declaration of Nicholas Metz re 334 Declaration by Defendant Seattle City of. (Attachments: # 1 Signatue Page to Declaration)(Cobb, Karen) (Entered: 10/27/2006)
341 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 332 MOTION for Summary Judgment. Oral Argument Requested. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 10/30/2006)
342 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 332 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1-9# 2 Exhibit 10# 3 Exhibit 11-20# 4 Exhibit 21-34# 5 Exhibit 35-41)(Weaver, Tyler) (Entered: 10/30/2006)
343 RESPONSE, by Defendant Seattle City of, to 328 MOTION for Partial Summary Judgment. (Cobb, Karen) (Entered: 10/30/2006)
344 MOTIONS IN LIMINE by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. Noting Date 11/17/2006. (Attachments: # 1 Proposed Order # 2Certificate of Service)(Weaver, Tyler) (Entered: 11/03/2006)
345 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 344 MOTIONS IN LIMINE (Attachments: # 1Exhibit A-B)(Weaver, Tyler) (Entered: 11/03/2006)

11/03 /2006
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346 REPLY, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, TO RESPONSE to 328 MOTION for Partial Summary Judgment (Attachments: # 1 Exhibit A# 2 Certificate of Service)(Weaver, Tyler) (Entered: 11/03/2006)
347 MOTIONS IN LIMINE by Defendant Seattle City of. Noting Date 11/17/2006. (Carr, Heather) (Entered: 11/03/2006)
348 REPLY, filed by Defendant Seattle City of, TO RESPONSE to 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 11/03/2006)
349 DECLARATION of Karen Cobb filed by Defendant Seattle City of re 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 11/03/2006)
350 DECLARATION of Kevin Smith filed by Defendant Seattle City of re 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 11/03/2006)
351 MINUTE ORDER striking 348 Reply to Response to Motion filed by Seattle City of, by Judge Marsha J. Pechman. (AO, ) (Entered: 11/06/2006)
352 REPLY, filed by Defendant Seattle City of, TO RESPONSE to 332 MOTION for Summary Judgment (Cobb, Karen) (Entered: 11/06/2006)
353 SURREPLY filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 332 MOTION for Summary Judgment (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 11/07/2006)
354 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 332 MOTION for Summary Judgment (Attachments: # 1 Exhibit 1)(Weaver, Tyler) (Entered: 11/07/2006)
355 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 347 MOTIONS IN LIMINE. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 11/13/2006)
356 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 347 MOTIONS IN LIMINE (Attachments: # 1Exhibit 1-9)(Weaver, Tyler) (Entered: 11/13/2006)

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357 MINUTE ORDER Motion Hearing set for 12/7/2006 at 02:30 PM in Courtroom 14206 before Hon. Marsha J. Pechman. by Judge Marsha J. Pechman. (AO, ) (Entered: 11/13/2006)
358 RESPONSE, by Defendant Seattle City of, to 344 MOTIONS IN LIMINE. (Buck, Theron) (Entered: 11/13/2006)
359 REPLY, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, TO RESPONSE to 344 MOTIONS IN LIMINE (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 11/17/2006)
360 REPLY, filed by Defendant Seattle City of, TO RESPONSE to 347 MOTIONS IN LIMINE (Carr, Heather) (Entered: 11/17/2006)
361 DECLARATION of Heather Carr filed by Defendant Seattle City of re 347 MOTIONS IN LIMINE (Carr, Heather) (Entered: 11/17/2006)
362 STIPULATION AND PROPOSED ORDER REGARDING DEPOSITION DESIGNATIONS by parties. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 12/06/2006)
363 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Law Clerk: Andrea Ostrovsky; Pla Counsel: Tyler Weaver, Michael Withey, Fred Diamondstrone; Def Counsel: Ted Buck, et a l; CR: Laurie Briggs; Time of Hearing: 45 minutes; Motion Hearing held on 12/7/2006 re 332 MOTION for Summary Judgment filed by Seattle City of, 328 MOTION for Partial Summary Judgment filed by Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. Court hears argument and will issue written decision. (ES) (Entered: 12/08/2006)
364 STIPULATION AND ORDER REGARDING DEPOSITION DESIGNATIONS re 362 Stipulation filed by Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, by Judge Marsha J. Pechman. (MD, ) (Entered: 12/11/2006)
365 ORDER DENYING 332 MOTION for Summary Judgment filed by Defendant City of Seattle and GRANTING 328 MOTION for Partial Summary Judgment filed by Plaintiffs by Judge Marsha J. Pechman. (AO, ) (Entered: 12/13/2006)
366 Proposed Pretrial Order by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, Defendant Seattle City of (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 12/14/2006)

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382 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Timothy Burgess served on 12/9/06. (MD, ) (Entered: 12/21/2006)
367 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Nicholas Metz, Seattle Police Headquarters served on 12/13/06. (RS, ) (Entered: 12/18/2006)
368 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon R. Gil Kerlikowski, Chief Seattle Police served on 12/13/06. (RS, ) (Entered: 12/18/2006)
389 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Andrea Delgadillo Ostrovsky; Pla Counsel: Tyler Weaver, Steve Berman, Michael Withey; Def Counsel: Heather Carr, Ted Buck; Time of Hearing: 9:00 a.m.; Final Pretrial Conference held on 12/15/2006.. (AO, ) (Entered: 12/29/2006)
369 BRIEF REGARDING NECESSITY OF TRIAL ON LIABILITY by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Exhibit A# 2 Certificate of Service)(Weaver, Tyler) (Entered: 12/18/2006)
370 DEFENDANTS' SUBMISSION BRIEF ON ISSUES REMAINING FOR TRIAL by Defendant Seattle City of. (Buck, Theron) (Entered: 12/18/2006)
371 MINUTE ORDER regarding juror questionnaire by Judge Marsha J. Pechman. (AO, ) (Entered: 12/18/2006)
372 SUPPLEMENTAL BRIEF REGARDING UNRESOLVED MOTIONS IN LIMINE by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 12/18/2006)
373 DECLARATION of Tyler Weaver re 372 Brief Regarding Unresolved Motions In Limine by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Exhibit 1-2)(Weaver, Tyler) (Entered: 12/18/2006)
374 STIPULATION REGARDING AGREED MOTIONS IN LIMINE by parties. (Weaver, Tyler) (Entered: 12/18/2006)
375 THE CITY'S SUPPLEMENTAL BRIEF REGARDING MOTIONS IN LIMINE by Defendant Seattle City of. (Carr, Heather) (Entered: 12/18/2006)

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376 SURREPLY filed by Defendant Seattle City of re 347 MOTIONS IN LIMINE (Carr, Heather) (Entered: 12/18/2006)
377 MOTION for Reconsideration RE: PLAINTIFFS' STATE CONSTITUTIONAL CLAIMS by Defendant Seattle City of. (Cobb, Karen) (Entered: 12/18/2006)
378 MINUTE ORDER re 377 MOTION for Reconsideration RE: PLAINTIFFS' STATE CONSTITUTIONAL CLAIMS filed by City of Seattle; A Responsive Brief from the Plaintiffs is due by 12/26/2006, by Judge Marsha J. Pechman. (AO, ) (Entered: 12/19/2006)
379 MINUTE ORDER directing Plaintiffs to file a copy of the entire "Plaintiffs-Appellants' Opening Brief" today by Judge Marsha J. Pechman. (AO, ) (Entered: 12/19/2006)
380 Letter from Tyler Weaver re 379 Minute Order. (Attachments: # 1 Exhibit (Ninth Circuit Opening Brief))(Weaver, Tyler) (Entered: 12/19/2006)
381 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Dianne Newsom Sergeant Seattle Police Dept served on 12/14/06; Alexander C Stephen Detective on 12/14/06, filed by Plaintiff Robert Hickey. (MD, ) (Entered: 12/21/2006)
383 STIPULATION AND DEPOSITION DESIGNATIONS by parties. (Attachments: # 1 Exhibit 1-2 (Parties' Deposition Designations)# 2 Certificate of Service)(Weaver, Tyler) (Entered: 12/22/2006)
384 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 377 MOTION for Reconsideration RE: PLAINTIFFS' STATE CONSTITUTIONAL CLAIMS. (Attachments: # 1 Exhibit A# 2 Certificate of Service)(Weaver, Tyler) (Entered: 12/22/2006)
385 MOTION for Reconsideration /CR 60 Motion re Individualized Probable Cause by Defendant Seattle City of. Noting Date 12/22/2006. (Attachments: # 1 Proposed Order [Proposed] Order Granting the City's Motion for Reconsideration/CR 60 Motion re Individualized Probable Cause)(Cobb, Karen) (Entered: 12/22/2006)
386 DECLARATION of Karen L. Cobb filed by Defendant Seattle City of re 385 MOTION for Reconsideration /CR 60 Motion re Individualized Probable Cause (Attachments: # 1 Exhibit 1-4)(Cobb, Karen) (Entered: 12/22/2006)

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387 MINUTE ORDER regarding trial schedule and memorializing 12/15/06 pretrial conference by Judge Marsha J. Pechman. (AO, ) (Entered: 12/29/2006)
388 AMENDED MINUTE ORDER -- Amending 387 Minute Order regarding trial schedule and memorializing 12/15/06 pretrial conference by Judge Marsha J. Pechman. (AO, ) (Entered: 12/29/2006)
390 ORDER re 347 MOTIONS IN LIMINE filed by City of Seattle and 344 MOTIONS IN LIMINE filed by Plaintiffs by Judge Marsha J. Pechman. (AO, ) (Entered: 01/02/2007)
391 Proposed Voir Dire by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/02/2007)
392 TRIAL BRIEF by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper (Attachments: # 1 Exhibit A# 2 Certificate of Service)(Weaver, Tyler) (Entered: 01/02/2007)
393 TRIAL BRIEF CONCERNING PHASE ONE - LIABILITY by Defendant Seattle City of (Buck, Theron) (Entered: 01/02/2007)
394 Proposed Voir Dire by Defendant Seattle City of (Buck, Theron) (Entered: 01/02/2007)
395 ORDER denying 377 Motion for Reconsideration and denying 385 Motion for Reconsideration / Relief from Judgment by Judge Marsha J. Pechman.(AO, ) (Entered: 01/03/2007)
396 Proposed Jury Instructions by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper [JOINT STATEMENT OF DISPUTED INSTRUCTIONS](Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/03/2007)
397 Proposed Jury Instructions by Plaintiffs Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper, Defendants Seattle City of, Paul Schell, Norman Stamper [Joint Undisputed Jury Instructions for Liability Phase] (Buck, Theron) (Entered: 01/03/2007)
408 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Andrea Ostrovsky; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: None; Time of Hearing: 3 hours; In Chambers Jury Instruction Conference held on 1/3/07. Conference is continued to 1/4/07 at 12:00 p.m.. (ES) (Entered: 01/09/2007)

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409 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Law Clerk: Andrea Ostrovsky; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: None; Time of Hearing: 2.5 hours; Continuation of In Chambers Jury Instruction Conference held on 1/4/07. (ES) (Entered: 01/09/2007)
398 MEMORANDUM (SUPPLEMENTAL) RE: ASST. CHIEF ED JOINER AS HAVING POLICY MAKING AUTHORITY by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Appendix A# 2 Appendix B# 3 Appendix C# 4 Appendix D# 5 Certificate of Service)(Weaver, Tyler) (Entered: 01/05/2007)
399 Proposed Jury Instructions by Defendant Seattle City of [Supplemental] (Buck, Theron) (Entered: 01/05/2007)
400 Proposed Pretrial Order by Defendant Seattle City of (Buck, Theron) (Entered: 01/05/2007)
401 CERTIFICATE OF SERVICE by Defendant Seattle City of re 399 Proposed Jury Instructions (Corrected). (Buck, Theron) (Entered: 01/05/2007)
402 APPLICATION by Plaintiffs Emily Maloney, Robert Hickey, Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Carroll Jackson, Denise Cooper AND ORDER admitting Leslie A Bailey for pro hac vice. Receipt # SEA 6392. (MD, ) (Entered: 01/08/2007)
403 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon KOMO-4 TV served on 1/8/07, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Weaver, Tyler) (Entered: 01/08/2007)
404 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon KIRO7 TV served on 1/8/07, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Weaver, Tyler) (Entered: 01/08/2007)
405 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon KING5 TV served on 1/8/07, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Weaver, Tyler) (Entered: 01/08/2007)
406 AFFIDAVIT OF SERVICE OF SUBPOENA upon Dianne Newsom served on 1/1/07. (MD, ) (Entered: 01/09/2007)
407 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Law Clerk: Andrea Ostrovsky; Pla

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Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Laurene Kelly; Time of Hearing: 2.5 hours; Jury Trial held on 1/8/07. Court excuses these jurors for hardship: 4, 9, 12, 16, 24, 26, 27, 28, 40, 42, 44, 46, 49, 50, 51, 52, 57. Jury panel present. Qualification oath given.Voir dire of the jury panel. Pltf challenges juror # 15: denied. Pltfs. Peremptory Challenges: 6, 15, 2; Def's Peremptory Challenges: 19, 18. JURY PANEL: 1, 3, 22, 7, 8, 10, 11, 13, 14, 20, 17, 21. Empanelment oath given. Trial to resume on 1/9/07 at 9:00 a.m.. (ES) (Entered: 01/09/2007)
410 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Laurene Kelly; Time of Hearing: 5.5 hrs.; 2nd Day Jury Trial held on 1/9/07. Counsel and jury present.Opening statementss. Witnesses sworn and examined: William Alder, Kenneth Hankin, Denise Cooper. Exhibits admitted: 127, 138. Pltfs. motion in-limine re "ruse" and Diamondstone is granted. Depositions published: Kenneth Hankin, Denise Cooper. Trial cont'd to 1/10/07. (ES) (Entered: 01/10/2007)
411 ORDER - Plaintiffs have requested that the title of this case be changed to the following: Kenneth Hankin et al on behalf of themselves and all other similarly situated vs. The City of Seattle - Court GRANTS Plaintiffs request. Clerk corrects case caption by Judge Marsha J. Pechman. (MD, ) (Entered: 01/10/2007)
412 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Laurene Kelly; Time of Hearing: 2.5 hours; 3rd Day Jury Trial held on 1/10/07. Witnesses sworn: Jennifer Hudziec, Stephanie Lane, Victor Menotti. Stipulation re Exhibit 111 filed. Exhibits admitted: 111, 135, 237, 238. Deposition of Stephanie Lane published. Court adjourns to 1/16/07 at 9:00 a.m.. (ES) (Entered: 01/16/2007)
413 STIPULATION RE: EXHIBIT #111 (Joiner Press Conference Excerpt)(MD, ) (Entered: 01/17/2007)
414 AFFIDAVIT of of Linda Schmidt, News Librarian for King-TV, Seattle, WA. (MD, ) (Entered: 01/17/2007)
415 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Laurene Kelly; Time of Hearing: 5.5 hours; 4th Day Jury Trial held on 1/16/07. Jury present. Witnesses sworn & testify: Dana Scheurholz, Andrew Russell, Sue Bastian, Merf Ehman, Norm Stamper. Exhibits

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admitted: 105, 128, 140, 141. 4:00 p.m. Court adjourns to 1/17/07 at 9:00 a.m. (ES) (Entered: 01/18/2007)
416 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck/Heather Carr. CR: Laurene Kelly; Time of Hearing: 5.5 hours; 5th Day Jury Trial held on 1/17/07. Jury present. Witnesses sworn and testify: Norm Stamper, Jonathan Moore, Mickey Gendler, Dianne Newsom, Edward Joyner (by deposition), Nicholas Metz, A.C. Stephen. Deposition of Nicholas Metz is published. Exhibits admitted: 111, 125 (3a&b), 139, 142, 143. Exhibit excluded: 140. 4:00 p.m. Court adjourns to 1/18/06 at 9:00 a.m.. (ES) (Entered: 01/18/2007)
417 PLAINTIFFS' BRIEF REGARDING ADMISSIBILITY OF EXHIBIT 110 by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1Certificate of Service)(Weaver, Tyler) (Entered: 01/18/2007)
418 DECLARATION of TYLER WEAVER re 417 Brief Re: Admissibility of Ex. 110 by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Exhibit A-B)(Weaver, Tyler) (Entered: 01/18/2007)
419 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Barry Fanning; Time of Hearing: 5.5 hours; 6th Day Jury Trial held on 1/18/07. Jury present. Witnesses sworn and testify: A.C. Stephen, Abraham Haim (video deposition), Harvey Ferguson (deposition), Paul Schell (video deposition), Ron Judd, Daniel Whelan. Exhibits admitted: 101, 108, 126. Testimony continues. Question from juror. Court responds. Any additional proposed jury instructions are due 1/22/07 at 9:00 a.m.. Counsel to meet with the court 1/19/07 at 11:00 a.m.. Trial to resume on1/22/07 at 9:00 a.m.. (ES) (Entered: 01/19/2007)
423 Jury Notes dated 1/18/07(MD, ) (Entered: 01/22/2007)
420 DEFENDANTS' EXHIBIT 110 BRIEF by Defendants Seattle City of, Paul Schell, Norman Stamper. (Buck, Theron) (Entered: 01/19/2007)
421 NOTICE by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper OF ANTICIPATED OBJECTION TO DEFENDANT'S WITNESSES (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/19/2007)

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427 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Barry Fanning; Time of Hearing: 1.5 hours; In Court Hearing held on 1/19/07. Conference in chambers. In courthearing. Exhibit 227 not admitted. Discussion re Mr. Bucks cross-examination of Mr. Judd. (ES) (Entered: 01/22/2007)
428 AFFIDAVIT OF SERVICE OF DEPOSITION SUBPOENA upon Ron Judd served on 1/17/07. (MD, ) (Entered: 01/22/2007)
422 Proposed Jury Instructions by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper (REVISIONS AND ADDITIONS) (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/22/2007)
424 Proposed Jury Instructions by Defendant Seattle City of SECOND SUPPLEMENTAL PROPOSED (Buck, Theron) (Entered: 01/22/2007)
425 RESPONSE by Defendant Seattle City of re 398 Memorandum, RE: Ed Joiner's Policymaking Authority. (Cobb, Karen) (Entered: 01/22/2007)
426 DECLARATION of Karen Cobb in Support of the City's Response to Plaintiffs' Supplemental Memorandum RE: Ed Joiner's Policymaking Authority by Defendant Seattle City of. (Attachments: # 1Exhibit)(Cobb, Karen) Modified/Described Attachment on 1/23/2007 (ECS, ). (Entered: 01/22/2007)
429 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Barry Fanning; Time of Hearing: 5.5 hours; Jury Trial held on 1/22/07. Pltf. witness: Lt. Whelan. Def witnesses: Det. Scott Waltier, Hope Bauer. Exhibits admitted: 110, 124, 145, 227. 2:45 p.m. Pltfs.rest. Testimony for defendant begins. Jury instruction conference scheduled for 11:00 a.m. on 1/23/07. Jury excused. Trial to commence at 12:00 noon on 1/23/07. (ES) (Entered: 01/23/2007)
430 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Barry Fanning; Time of Hearing: 5.5 hours; 8th Day Jury Trial held on 1/23/07. 11:00 a.m. Counsel present in chambers for jury instruction conference. Out of presence of jury, issue of "order to disperse" is discussed. Jury present. Testimony for defendant resumes. Def witnesses sworn and testify: Hope Bauer, Brian Kraus, George

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Hissung, Randall Jokela, Jason Drummond, James Pugel. 4:30 p.m. Court adjourns to 1/24/07 at 9:00 a.m.. (ES) (Entered: 01/24/2007)
434 TRANSCRIPT of Proceedings held on 12/7/06, Motion Hearing before Judge Marsha J Pechman. Court Reporter: L. Briggs. (SA) (Entered: 01/25/2007)
436 DECLARATION of Mike Lozensky re: Authenticity of Videotape (videotape in chambers). (MD, ) (Entered: 01/25/2007)
431 MOTION for Directed Verdict by Defendant Seattle City of. (Attachments: # 1Proposed Order)(Carr, Heather) Modified/Described Attachment on 1/25/2007 (ECS, ). (Entered: 01/24/2007)
432 DECLARATION of Heather Carr filed by Defendant Seattle City of re 431 MOTION for Directed Verdict (Attachments: # 1 Exhibit 1# 2 Exhibit 2, Part A# 3 Exhibit 2 Part B# 4 Exhibit 3# 5 Exhibit 4 Part A# 6 Exhibit 4 Part B# 7 Exhibit 4 Part C# 8 Exhibit 4 Part D# 9 Exhibit 5# 10 Exhibit 6# 11 Exhibit 7 Part A# 12 Exhibit 7 Part B)(Carr, Heather) (Entered: 01/24/2007)
433 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, Tyler Weaver, Fred Diamondstone; Def Counsel: Ted Buck, Heather Carr; CR: Barry Fanning; Time of Hearing: 6.0 hours; Jury Trial completed on 1/24/07. Counsel and jury present. 10:10 a.m. Deft. rests. Pla rebuttalwitness: Dawn Samek. Deft. surrebuttal witness: James Pugel. Both sides rest. Out of presence of the jury, a jury instruction conference is held with counsel. Counsel take exceptions to the proposed jury instructions. Jury present. Closingarguments are presented. 4:30 p.m. Jury excused and directed to return on 1/25/07 to begin deliberations. (ES) (Entered: 01/25/2007)
437 NOTICE - Videotaped Deposition of Abraham Haim dated 6/22/06(MD, ) (Entered: 01/25/2007)
438 NOTICE - Videotaped Deposition/transcript upon Paul Schell dated 12/20/06.(MD, ) (Entered: 01/25/2007)
439 PRELIMINARY Jury Instructions signed by Judge Marsha J. Pechman(MD, ) (Entered: 01/25/2007)
440 FINAL Jury Instructions signed by Judge Marsha J. Pechman(MD, ) (Entered: 01/25/2007)
441 Witness/Exhibit List (MD, ) (Entered: 01/25/2007)

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442 MINUTE ORDER - It is further ordered that the Clerk, USDC, pay for meals of said jurors and said bailiff at the expense of the US Courts. by Judge Marsha J. Pechman. (MD, ) (Entered: 01/25/2007)
435 DEFENDANTS' BRIEF AND PROPOSED SPECIAL INTERROGAORIES by Defendant Seattle City of. (Buck, Theron) (Entered: 01/25/2007)
443 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 431 MOTION for Directed Verdict. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 01/25/2007)
444 RESPONSE by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 435 Brief and Proposed Special Interrogatories. (Attachments: # 1Certificate of Service)(Weaver, Tyler) (Entered: 01/25/2007)
452 MINUTE ENTRY for proceedings before Judge Marsha J. Pechman Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey, et al; Def Counsel: Ted Buck, et al; Time of Hearing: 5.5 hrs; Jury Trial - Jury in Deliberation Only held on 1/25/07. Four questions to the court from the jury. Court responds after discussion with counsel. Jury excused to 1/26/07 at 9:00 a.m. to continue deliberations. (ES) (Entered: 01/31/2007)
455 Jury Notes - No. 1-4 dated 1/25/07(MD, ) (Entered: 02/02/2007)
445 REPLY by Defendant Seattle City of to 444 Response Re: Jury Questions and Special Interrogatories. (Buck, Theron) (Entered: 01/26/2007)
446 ORDER striking 431 Motion for Directed Verdict by Judge Marsha J. Pechman.(AO) (Entered: 01/26/2007)
453 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey et al; Def Counsel: Ted Buck, et al; Time of Hearing: 5.5 hrs.; 11th Day Jury Trial - Jury in Deliberation Only held on 1/26/07. Three questions from the jury to the court. Court responds after discussion with counsel. Jury excused to 1/30/07 to resume deliberations. (ES) (Entered: 01/31/2007)
456 Jury Notes - No. 5-7 dated 1/26/07(MD, ) (Entered: 02/02/2007)
457 SPECIAL JURY VERDICT (MD, ) (Entered: 02/05/2007)

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447 MINUTE ORDER. Defendants may file written objections to the answers given to jury questions nos. 6 & 7 by Judge Marsha J. Pechman. (AO, ) (Entered: 01/30/2007)
448 OBJECTIONS to Responses to Juror Questions 6 and 7 by Defendant Seattle City of. (Buck, Theron) (Entered: 01/30/2007)
449 MOTION for Reconsideration Court's Decisin on the City's Proposed Special Interrogatory by Defendant Seattle City of. (Buck, Theron) (Entered: 01/30/2007)
450 MOTION for Reconsideration re 446 Order on Motion for Directed Verdict by Defendant Seattle City of. Noting Date 1/30/2007. (Cobb, Karen) (Entered: 01/30/2007)
451 DECLARATION of Karen Cobb filed by Defendant Seattle City of re 450 MOTION for Reconsideration re 446 Order on Motion for Directed Verdict (Cobb, Karen) (Entered: 01/30/2007)
454 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Michael Withey et al; Def Counsel: Ted Buck, et al; CR:Joseph Roth; Time of Hearing: 4.5 hrs.; 12th Day Jury Trial - Jury in Deliberation Only held on 1/30/07. Jury resumes deliberations. 12:00 p.m. Jury advises the court the jury has reached a verdict. 1:50 p.m. Counsel and jury present. Chief Judge Lasnik presiding. VERDICT: Arrest claim finding in favor of plaintiffs. Federal and State free speech claims finding in favor of defendant. Jurors polled and excused. (ES) (Entered: 02/01/2007)
458 ORDER denying 449 Motion for Reconsideration and calling for a response from Plaintiffs on 450 Motion for Reconsideration. Plaintiffs' response is due ten calendar days from the date of this order by Judge Marsha J. Pechman.(AO, ) (Entered: 02/06/2007)
459 ORDER Joint Status Report regarding damages phase due by 2/16/2007; by Judge Marsha J. Pechman. (AO, ) (Entered: 02/06/2007)
460 MINUTE ORDER --- the Court is filing as part of the record the new Ninth Circuit 1983 model jury instructions by Judge Marsha J. Pechman. (Attachments: # 1 new 1983 model jury instructions)(AO, ) (Entered: 02/07/2007)
461 MINUTE ORDER Conference set to discuss mediation/settlement process for 2/16/2007 at 09:00 AM before James P. Donohue, in chambers. by Judge James P. Donohue. (PV, ) (Entered: 02/09/2007)

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462 MOTION for Judgment as a Matter of Law by Defendant Seattle City of. Noting Date 3/9/2007. (Carr, Heather) (Entered: 02/09/2007)
463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City by Defendant Seattle City of. Noting Date 3/2/2007. (Attachments: # 1 Proposed Order Granting The City's Motion to Set Aside Fourth AMendment Muncipal Liability Verdict and Enter Judgment in the City's Favor)(Carr, Heather) (Entered: 02/09/2007)
464 DECLARATION of Heather L. Carr filed by Defendant Seattle City of re 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City (Attachments: # 1 Exhibit 1-3# 2 Exhibit 4-5# 3 Exhibit 67# 4 Exhibit 8-11)(Carr, Heather) (Entered: 02/09/2007)
465 MINUTE ENTRY for proceedings held before Judge James P. Donohue Dep Clerk: phv; Pla Counsel: M Withey, T Weaver; Def Counsel: T Buck, H Carr, TSheehan; Time of Hearing: 9:00; Settlement Conference held on 2/16/2007. Court discusses procedure for conference; directs parties to file settlement memorandums. Court hears issues counsel need address during conference. Court and counsel discuss parties that need be present (or available) during settlement discussions. Settlement Conference set for 3/12/2007 at 09:00 AM before James P. Donohue. (PV, ) (Entered: 02/16/2007)
466 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 450 MOTION for Reconsideration re 446 Order on Motion for Directed Verdict. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 02/16/2007)
467 DECLARATION of Tyler Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 450 MOTION for Reconsideration re 446 Order on Motion for Directed Verdict (Attachments: # 1 Exhibit 1-2)(Weaver, Tyler) (Entered: 02/16/2007)
468 DECLARATION of Michael Withey filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 450 MOTION for Reconsideration re 446Order on Motion for Directed Verdict (Weaver, Tyler) (Entered: 02/16/2007)
469 JOINT STATUS REPORT REGARDING DAMAGES PHASE filed by all parties.. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 02/16/2007)

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470 MINUTE ORDER Settlement Conference is heregy re-set for 3/14/2007 at 09:00 AM before James P. Donohue. by Judge James P. Donohue. (Entered: 02/20/2007)
471 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 02/26/2007)
472 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Weaver, Tyler) (Entered: 02/26/2007)
473 REPLY, filed by Defendant Seattle City of, TO RESPONSE to 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City (Carr, Heather) (Entered: 03/02/2007)
474 DECLARATION of Ted Buck Supporting Reply filed by Defendant Seattle City of re 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City (Carr, Heather) (Entered: 03/02/2007)
475 RESPONSE, by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, to 462 MOTION for Judgment as a Matter of Law. (Attachments: # 1Certificate of Service)(Weaver, Tyler) (Entered: 03/05/2007)
476 DECLARATION of Tyler Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 462 MOTION for Judgment as a Matter of Law(Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Weaver, Tyler) (Entered: 03/05/2007)
477 REPLY, filed by Defendants Seattle City of, Paul Schell, Norman Stamper, TO RESPONSE to 462 MOTION for Judgment as a Matter of Law (Carr, Heather) (Entered: 03/09/2007)
478 DECLARATION of Heather L. Carr filed by Defendants Seattle City of, Paul Schell, Norman Stamper re 462 MOTION for Judgment as a Matter of Law (Attachments: # 1Exhibit 1-3# 2 Exhibit 4-7)(Carr, Heather) (Entered: 03/09/2007)

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479 MINUTE ENTRY for proceedings held before Judge James P. Donohue - Settlement Conference held on 3/14/2007. Parties agree to continue Settlement Conference on 3/29/2007 at 09:00 AM before James P. Donohue. (PV, ) (Entered: 03/15/2007)
480 MINUTE ORDER Settlement Conference will continue on 3/29/2007 at 09:00 AM before James P. Donohue. by Judge James P. Donohue. (PV, ) (Entered: 03/15/2007)
481 Stipulated MOTION for Order Directing King County Dept. of Adult and Juv. Detention to Produce Documentation Concerning Conditions of Confinement by Plaintiff Kenneth Hankin. (Attachments: # 1 Proposed Order)Noting Date 4/13/2007.(Diamondstone, Fred) (Entered: 03/29/2007)
482 MINUTE ENTRY for proceedings held before Judge James P. Donohue - Settlement Conference held on 3/29/2007.. (PV, ) (Entered: 03/30/2007)
483 MINUTE ORDER terminating 481 Stipulated MOTION for Order Directing King County Dept. of Adult and Juv. Detention to Produce Documentation Concerning Conditions of Confinement filed by Kenneth Hankin by Judge Marsha J. Pechman. (AO, ) (Entered: 04/03/2007)
484 MINUTE ORDER re settlement and pending motions. Motions terminated: 462 MOTION for Judgment as a Matter of Law, 450 MOTION for Reconsideration re 446 Order on Motion for Directed Verdict, 463 MOTION to Set Aside the Verdict on Fourth Amendment Municipal Liability and Enter Judgment in Favor of the City by Judge Marsha J. Pechman. (AO) (Entered: 04/24/2007)
485 MOTION Preliminary Approval of Settlement by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Proposed Order Preliminary Approval Order# 2 Certificate of Service)Noting Date 5/11/2007.(Weaver, Tyler) (Entered: 04/26/2007)
486 DECLARATION of Tyler Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 485 MOTION Preliminary Approval of Settlement (Attachments: # 1 Exhibit A through D)(Weaver, Tyler) (Entered: 04/26/2007)
487 ORDER re 485 MOTION Preliminary Approval of Class Settlement and approving of form and manner of notice filed by Stephanie Lane, Jennifer Hudziec, Denise Cooper, Kenneth Hankin. In-court/Final Approval Hearing set for 10/26/2007 at 10:00 AM before Hon. Marsha J. Pechman. by Judge Marsha J. Pechman. (MD, ) (Entered: 05/15/2007)

05/17 /2007
05/25 /2007
06/01 /2007
06/01 /2007
06/05 /2007
06/12 /2007
06/13 /2007
06/13 /2007

488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Proposed Order # 2 Certificate of Service)Noting Date 6/1/2007.(Weaver, Tyler) (Entered: 05/17/2007)
489 RESPONSE, by Defendants Seattle City of, Paul Schell, Norman Stamper, to 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies. (Attachments: # 1)(Buck, Theron) (Entered: 05/25/2007)
490 REPLY, filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper, TO RESPONSE to 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 06/01/2007)
491 DECLARATION of Tyler S. Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies (Attachments: # 1 Exhibit A)(Weaver, Tyler) (Entered: 06/01/2007)
492 MINUTE ORDER regarding 488 Plaintiffs' MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies. Within seven (7) calendar days of this minute order, the parties shall file supplemental briefs on the issue of which Settlement Agreement prevails here. The briefs shall be limited to five (5) pages in length. Plaintiffs' 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies shall be re-noted on the Courts motions calendar: Noting Date 6/12/2007. By Judge Marsha J. Pechman. (Entered: 06/05/2007)
493 STIPULATION AND JOINT SUPPLEMENTAL RESPONSE by parties re 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies. (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 06/12/2007)
494 PROPOSED ORDER (Unsigned) re 488 MOTION for Order Directing Expungement of Records and Communication with Other Law Enforcement Agencies (Attachments: # 1 Certificate of Service)(Weaver, Tyler) (Entered: 06/13/2007)
495 ORDER granting 488 plaintiffs' motion for order to expunge arrest records by Judge Marsha J. Pechman.(MD, ) (Entered: 06/14/2007)

10/11 /2007
10/11 /2007
10/11 /2007
10/11 /2007
10/11 /2007
10/22 /2007 10/26 /2007
10/26 /2007 10/26 /2007 10/26 /2007

496 MOTION FINAL APPROVAL OF CLASS SETTLEMENT by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Proposed Order)Noting Date 10/26/2007.(Weaver, Tyler) (Entered: 10/11/2007)
497 MOTION for Attorney Fees and Costs and Incentive Awards by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Proposed Order)Noting Date 10/26/2007.(Weaver, Tyler) (Entered: 10/11/2007)
498 DECLARATION of Tyler Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 496 MOTION FINAL APPROVAL OF CLASS SETTLEMENT, 497 MOTION for Attorney Fees and Costs and Incentive Awards (Attachments: # 1 Exhibit A through E)(Weaver, Tyler) (Entered: 10/11/2007)
499 MOTION TO ALLOW LATE CLAIM by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper. (Attachments: # 1 Proposed Order)Noting Date 10/26/2007.(Weaver, Tyler) (Entered: 10/11/2007)
500 DECLARATION of Tyler Weaver filed by Plaintiffs Kenneth Hankin, Jennifer Hudziec, Stephanie Lane, Denise Cooper re 499 MOTION TO ALLOW LATE CLAIM (Weaver, Tyler) (Entered: 10/11/2007)
501 RESPONSE, by Defendant Seattle City of, to 499 MOTION TO ALLOW LATE CLAIM. (Carr, Heather) (Entered: 10/22/2007)
502 MINUTE ENTRY for proceedings held before Judge Marsha J. Pechman - Dep Clerk: Eileen Scollard; Pla Counsel: Tyler Weaver; Def Counsel: Theodore Buck; CR: Susan Zielie; Time of Hearing: 10:00 a.m.; In Court Hearing held on 10/26/07.Motion for leave to file late claim: Granted. Final Approval of Class Settlement: Order signed. Motion for attorney fees and costs: Order signed. (ES) (Entered: 10/26/2007)
503 ORDER granting 499 Plaintiffs' Motion to allow late claim by Judge Marsha J. Pechman.(MD, ) (Entered: 10/29/2007)
504 ORDER granting 497 Motion for Attorney Fees and costs and incentive awards by Judge Marsha J. Pechman.(MD, ) (Entered: 10/29/2007)
505 ORDER granting 496 Final approval of class settlement and dismissing the claims of the plaintiffs and class members. Jennifer Hudziec; Stephanie Lane; Denise Cooper and Kenneth Hankin terminated with prejudice, by Judge Marsha J. Pechman.(MD, ) (Entered: 10/29/2007)

 
 Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 1 of 19

l
~
~
~

2

tY t . -.,-.. 'i:rD ' ··'··-.fo

G~ '·LJAV\

3
~ II
5 I,II
6 I

UNITED

STATES

DISTRICT

c~ftt::~

0Cf ?

<~'';

c
y

9

'-....-RrCcv~r51/[1)
·dtTo

}Qp/

I~ESTERN

DISTRICT Of WJ\.SHINGTON AT SEATTLE

Disf;,1c'1!fof/t/{l~o Cou

/ ·. . ~"'"""' VICTOR MENOTTI; THOMAS SELLMAN; 0 7 TODD STEfJT,; ANDOl.EW RUSSELL;

~."I ,.
{I()

- /(JJ

7/D10r;Juor.,,
'j- K-_

LA~REN HOLLOWAY; RONALD MAT~JAS

9

ilnd DOUG SKOVE,

~ il

I

10

v.

Plaintitfs,

11

CITY OF SEJI.TTLE; PAUL SCHELL,

12

Mayoc of Seattle; NOru~~

STALVIPER, Chief of Pol i.ce,

13 Seattle Police Department;
MICHAEL B. ,TENNINGS, a Seattle

14

Pol~ce officer; and S.D.

STEVENS, a Seattle Pollee

15

off2.cer,

NO. C00-372R
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDJWTS' MOT TON fOR SUHM.'\RY JUDGMENT !l.ND DENYING PLAINTIFFS' CROSS-MOTION FO~ SUMMARY JUDGMENT

16

Detendants.

17

13

19

20

21

22

23

24

25

26 !

AO 72 (R~·,.._ H/82)
~··.

ORDER I Page - l -
II
'I
II

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 2 of 19

ROBEF\T HICKEY; KENNETH HANKIN; JENNIFER HUDZIEC; and S'l'f,;PHANIE LANE, on behalf o= themselves 3 and all others similarly situated,
4 !
Plaintiffs,
5

6

v.

THE CITY OF SEATTLE, o municipality; PAUL SCHELL, Mayor of the City of Seattle; NORMAN STAMPER, Former Chief of PolicR of the City of se~ttle,

10

Defendants.

11

I~ C!U'TAIN JESSE PETRICH, 1

13

Plaintiff,

14

v.

15 CITY OF SEATTLE and SEATTLE POLICE DEPARTMENT; JOHN DOE
16 OFFICER,

17

Defendants.

1 B

19

20

21

22

23

24

25

26
AO 72 :Re\1. 8'82)

ORDER
Page - 2 -

NO. C00-1672R KO. C00-855R

'I
I

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 3 of 19

I

COLIN CALLAHAN BRYNN; and B:oGAN 2 NEUBERG,

3

Plaintiffs,

' .

5
CITY OF SEATTLE, a municipal 6 corporation; PAUL SCHELL, in
his capC~city as Mayor of Lhe 7 City of Seattle and ~s an indi-
vidual; NORMAN STAMPER, in his

8 capacity CIS Chief of Police of

the City of Seattle a~d us an 9 I i.ndlvidual; EDWARD JOINER, in

his caracity as Assistant Chief 10 i of thP City of Seattle and as

11

an individual,

12

Defendants.

13

LIFE HAS MEANING a/k/a ~~y 14 ELIZABETH WILLIAMS; ESTELL.!\.

I 1\JALLl\CE; DAWN MONTOYA; PATRICIA

15

NAT SON; WILLIAl1 WATKINS; ANDREI~

16

BERNHARDT; KEN OLSON and TAMRA

R. FOGGY,

17
Plaintiffs,

18
v.

19

CITY OF SEATTLE; PAUL SCHELL;

20 NORM STAMPER; JOHN DOE #1; JOHN

DOE jj 2; JOHN DOE # 3; ,JOHN DOE

21

jj4; JOHN DOE #5; JOHN DOE #6;

JOHN DOE #7; JOHN DOE #8; JOHN

22

DOE #9; JOHN DOE #10; JOHN DOE

#11; JOHN DOE #12; JOHN DOE

23

#13; JOHN DOE #14; JOHN DOE

24

#15; and JOHN DOE #16,

25

Defendants.

25
ORDER
Page - 3 -
AO 12
(Rev. 8/82)
1:

NO. C00-2123Z NO. C00-l99BC

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 4 of 19

MICHAEL CROWLEY,
2
Plaintiff,
3

v.
4

5 I

TEE CITY OF SEATTLE, a municipal corpcration; and

6

,JOHN DOE # 1 and JOHN DOE #2, in their capacity as police

7 ' officers or re~ruits for the City of Seatt~e and as

ir.dividuals whose true names

are unknown,

9

Defendants.

10

NO. C01-336R.

11

12

THIS HATTER comE's before thP court on the motion of defen-

dents for summary judgment, and on the cross-motion of plaintiffs

14 for summary judgment. These cases have been consolidated for the

15 purpose of resolvlny legal issues common to all part::.es. Having

16 reviewed the papers filed in support ot and in oppos:.tion to these

17 motions, lhe court finds that oral argume:1t '"'ould not prove useful

18 and rules a~ follows:

19

I . BACKGROUND

20

These consolidated actions arise out of events o~curring

21 during the World Trade Organ~zation ("WTO") conference in Seattle

22
from November 30, 1999 to December 4, 1999. Representatives froiii

23
Lhe l34 member nations gathered to discuss cvorld trade issues, and

' the Presrdent of the United States appeared as well. During the 25
conference, thousands of people also descended on seattle, many or
25
I ORDER
[I Page - 4 -

AO 72
(Rev. 8/82) II ,I

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 5 of 19

tt1em intending to prates~ the polici2s and presence of the WTO.

2 Tte bulk of people converged on a multi-block area of Seattle's

3 downtown core near the convention center. Several groups planned

4 organized marches, 1>1hile other people chose to protest individu-

5 ally, a'"ld still others planned cj.vi l d1sobcdience.

6

Another group of prot.:ut;·ter:s hud :r.ore vlolent intenlions4 The

7 day before the conference officially star~.ed 1 protests and vandal-

8
1sm began occurring downtown. People spraypainted buildings and
9
broke windows. A crowd gathered around Niketown and pounded
10
windo1rJs and nearby cars.
'I
On November 30, the c:onference officiillly opened, and the
12
number of people in downtown Seattle ~ear the WTO conference
13
swelled to the tens cf thousands. Protesters occupied intersec-
14

15 tions and blocked access - sometimes by chuining themselves to

16 m<.~nhole covers. People overturned dumpsters and set fires; ap-

17 proximately 100 people ·iuroped on cars; others threw sticks, metal

18
19 20 21 22 23 24 25 26
.~0 72 rRev 8/Fl2)

spikes, and concrete at the police. Some demonstrators pushed and
shoved WTO delegates in an attempt to shut down the con::erence. Others blocked emergency and law enforcement vehicles.
The magnitude of the protests und the violence overwhelmed law enforcement resources. The city had to divert resources from the protest clashes to the WTO conference so law enforcement could protect the international delegates. By mid-morning, defendants
nrdered all delegates tD remn.in in their i~c1tels until order was
ORDER Page - 5 -

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 6 of 19

restored. Later in the day, demonstrators ~lashed tires and

2 looted local businesses. They lit dumpsters on fire and pushed

3 them into police lines.

4

On the afternoon ot November 30, tlw city responded to the

5 chaos by declaring a civil emergency. Mayor Paul Schell

6 ("Schell") also imposed a curfew in downto"m Seattle. Unfortu-
7
nately, the violence, property destruction, fires, and arrests
8
com::inued throughout the afternoon and the night. Protesters
9
pelted officers with sticks, bottles, and debrls. One group set
10
a large fir~ at a main intersection. Another group wreaked havoc
II
on Niketo•.vn, this time forcing police to evucuate err.ployees. A
12
different crowd pulled " garbage truc:-c driver from his vehicle,
13
14 forcing a police rescue. Riots continued l.hrough the early hours
15 of the morning.

16

During the riots, President Clinton arrived in Seattle.

17 f"aced with the pL·ospect of protecting the President, and the r.eed

18 lo continue the international conference, Schell signed Emergency

19 Order Number 3 ("Order") in the early morning hours of December L

20 The Order established a restricted zone ("zone") in the downtown

21 area. The zone encompassed the convention center where the WTO

22 conference was taking place, nearby hotels where delegates and the

23 President vJere staying, and a portion of downtown Seattle. The

24
I Order affected about 25 city blocks.

I 25

The text of the Order limited those who could access the zone

26

:I ORDER

I' Page - 6 -
AO 72

(Rev. 8/82)
II

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 7 of 19

to Ill delegates and auchorized WTO personnel, (21 owners and

2 employers of businesses and other personnel llccessary to operate
3 those busi11esses, (3) residents, and 14) emergency and safety 4 personnel. A later order added cl~y officials and credentialed
5 representatives of the press. The defendants irnpo.c.;P.d Lhe z.one to
6 quell the continuing violenc:F: nnd b:.1 prnvid12 a secure area for the

Presicent, worJ.d leaders, and citizens. Demonstrators could
8
continue protesting 011tside the boundaries of the zone, but safety
9
cor1cer3s p=ecluded tl1eir entry into the WTO conference area.
10
11 Schell encouraged businesses within the zone tu remain open so the
12 city could returYJ to its normal functions. Despite the Order and
13 the civil emergency, hundreds of demonstrators attempted to enter
14 the zone ar.d were arrested and clashes witb police continued.

15

The WTO conference concluded its meet-.inqs on Fr lday r December

16 3. On December 4, Schell terrr.inated the civil emergency, includ-

17 ing the curfew and restricted Zolle. The plaintiffs lacer filed

18
19 20 21 22 23
24
25 26
AO T2
(Re\1. 8/82)

various complaints that challenged the restricted zone under the F'irst Amendment and Fourteenth Amendment. Oth"r plilirtliffs challenged theLr arrests under· the Fourth Amcmclment and state law. The Court consolidated these causes ct action to decide legal
issues. II. ANALYSIS
Detendants have moved for summary judgment on the following issues: \l) whether the emergency provisions of the Seattle
ORDER Page - 7 -

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 8 of 19

t{unicipal Code, Chapter 10.02, i'lre constitutional :Jll their face,

2 (2) whether Mayor Schell acted within his authority under the code

3 witen declaring a sc:ate of emergency·, establishing a curfew, and

<1 crca-cing a restricted zone, (3) whether Mayor oochell' ~ Order

5 Number 3, wllich created the curfew and restricted zone, was con-

6 stitutional on its face, 1 (4) 1-1hether probable cause existed to

arrest individuals who violated the curfc'.-1 or restricted zone,

8

( 5) whether probable cause ex is Led t.o arrest individual~ who

9 obstructed VGhicular or pedestrian traffic and failed to disperse,

10

and (6) whether a city policy existed ;::hat led to a failure to

11
train or supervise law enforcement officers. Plaintiffs cross-
12
moved for summary judgment or. (I) whether Order No. 3 was consc:i-
13
tutiunal on its face and [2) whether the Order was constitutional
14

15 as appl'..ed through the creation of the restricted zone.

16

Some of the rulings sought by defendants are on issues undis-

17 puted 1n these cases. Plaintiffs have not challenged the consti-

18 1 tutiona..:..ity oE the Seattle H1..:.nicipo_l Code, and they have not

19 challenged Schell's authority under the code. Plaintiffs also

20 have not challenged the curfew or the state of emergency. Because

21 plaintiffs have not challenged these actions (nor do they intend

22 to challenge them), it is unnecessary for the Court to rule on

23

24

25

1Defendants' motior. applied, but defendants

initially have si.nce

sought n narrowed

ruling on the their motion

Order to the

as

Order's facial constitutionality.

26

ORDER Page - 8 -

AO 72
(Rev. 8132}

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 9 of 19

their constitutionalit:.y. Detendants' motion on Lbose points will

2 be STRIC:KEN.

J

Defendants' !1otion for Summary Judonent on the Facial

Constitutionality of Order Number 3

4

Laws that limit speech based on contc<t must meet an exacting
5

6

.stric-:: scruti~1y standard. See, ~~ Met~_r:u~ttedia, Inc. v. San

7 Diego, 453 U.S. 490, 513-14 (19ill). Th.'s is because the govern-

8 :nent "mo.y not choose the appropria::P subject for public dis-

g course.'r ~d. at 514. Yloreover, the government cannot ba.r- expres-

10 1 sion ot a partlcular viewpoint o:1 a s·..:bject. See R.A.V. v. City 11 of St. Paul, 505 U.S. 377 [1992). An ordinance is content-based

12 on its face if the language or the manifest purpose targets

13 speech." Se", sg_,_, Turner Broad. Sys. v-. FCC, 512 U.S. 622, 642-

14 43 il994); Police Dep't ot the Citv of Chi. v. Mosley, 408 U.S.
1o 92, 96 (1972). A law that does not target expression on its face 16 ls not content based even if it incidentally affects one group of
17

13

19

2Parties also may challenge a slatute on its face for "overbreadth." Broadrick v. Oklahoma, 413 U.S. 601. 615 (1973).

20
21

~ Otihlvle. eergp·balraBleliaryrod1tchtlkiim fecftht'istasvlsl.eitnthSugepaeotsFkiaoianrncesktnAboAurwmct alenedndoedgsmne.eentthIthneracliet.g,shsa 4ts7ala2VrgoTuUfei.sStht. hcirao4d9tn1spt,thaiet4ru9tp8tiieroos(n.v1a9isl8Si5oie)nne. ,

22 23

If the parties to the laVTsuit argue that
unconstitutional as applied to them, it court to reach an overbreadth chall enqe. v. Taxpayers for Vincent, 466 U.S. 7B9,

the provision is is unJ,ecessary for the
Members of City CounciJ 802 (1984). The parties

24

here challenge the Order on its face and creation of the restricted zone, so they

as do

applied through not rely on the

rights

25 of third parties not beforf' the Court. Therefore, the Court need

26 not address facial overbreadth.

o\0 72
(RAv. 8182)

I 0!{DE;P
I Page - 9 -
I I
II

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 10 of 19

,I SI-Jeakers rn:Jre than another qrcup v:hen applied neutrally. See Ward

I'

'
2 I v.

Rock Against Racism,

491 u.s.

781.

·;91

(1989];

see also Hill v.

3 Co'orado, 500 'J.S. 703, 719-20 (2000) (law must apply equally to

4 alll

5

'fhe Order, as written, is content-neutral and therefore does

c not violate the Fi"'st or ],'ourteenth Amendment. Order Number 3

7 II establ~shes a restricted zo~e in the downtown core of Seattle, and
8 the language does not address expression. Dk t # 4 7, E:xh. 1 0. It
9 establishes the zone to protect WTO delegates, to prevent v!n-
10
ler;ce, and to protect those who work a~d llVP downtow::l. Id., Exh.
11
2, Scl1ell Dep., at 38. Orders are not cont:ent-based if tr,ey limit
12
entrance to a dangerous area to those necessary fer the area to
13
function. See United States v. Griefen, 200 F.3d 1256, 1263 (9th
14
15 Cir. 2000) (access Limited in constructlon zone). Although offi-
16 cials ultimately excluded protesters, docket # 47, Exh. 4, Joiner
17 Dep., at 39-42, there is no evidence that the ~manifest purpose"

18 of the city was to quell expresf;ion. The defendants' motion for

19 SUITL'llary judgment on the facial constitutioaali ty of the Order will

20 be GRANTED and plaintiffs' cross-motion will be DENIED.

21 B.
22

Plaintiffs' Motion for S·~mmury Judgment on the Constitutionality of the Order as Aoplied Through the Restricted Zone

23

A law that on its face is content-neutral may still violate

24

25

26 1
ORDER Page - 10 -

A072 {Rev_ l3J82i

'I I

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 11 of 19

the First Amendment when implemented by suth=>rities.' See Taxpay-

2 ers for Vincent, 466 U.S. at 803 n.22. Although the government

3 cart regulate the time, place, and manner of expressiur1, a restric-

4 tion is valid only if it (li ~s content neutral, (21 serves a

5 significant government purpose, (]) lS narrow~y tailored and (4)

6 allows for ample a! ternatives for expression. See \~ard, 491 U.S.

7 at 791.

8

1. Content Neutral

As described above, the Order is facially content-neutral,

hut the plaintiffs arg·~e that the defendants applied it to improp-

erly exclude speech based on corttent and viewpoint. They claim
12
the defendants favored commercial speech over political speech
13
<lh<Cn they allmved shoppers to enter the zone. However, as deten-
14
15 dants explained, allowing shoppers to enter was an attempt to
16 enable the city to continue functioning as much as possible in the
17 I• midst of a chaotic s.ituat.ion. Allowing normal operations to
I 18 cont.inue is not the same as favoring commercial speech. Cf.
19 Metromedia, 453 U.S. at 513 (example of favoring commercial speech

20 when city allowed commercial billboards but not non-commercial

21 billboards) . Nor did the defendants discriminaLe on viewpoint by 22

23

·'Plaintiffs' motion challenges the Order and the broader

restricted zone "as applied." However, pluintiffs do not challenge

24 the Order or zone as applied to specific individuals. The motion,

therefore, is not a classic example of an "as applied" challenge.

25 It is perhaps more easily understood as a challenge to the Order as

implementDd in the creation of the restricc:ed zone.

26

ORDER Page - 11 -

AO 72 ~Rev. 8l82)

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 12 of 19

permitting WTO delegates 1nto the zone. A~ilill, the defendants

2 simply allowed the conference to continue as planned and protected

3 the safety of WTO delegates. The Order was applied in a content-
4 neutral manner.
5
2. Sig:1ificant Government Interest
6
Any content-neutral restriction on sp12ech rr:ust serve a sig-
7
nificant government intereoL. The cl_.::cumt:.tanccs in which a law i0
8
applied guide the Court's analysis. See Smith v. Avino, 91 F.3d
9
lDS, 108 (11th Cir. 1996) (government has discretion to act
1~
I quickly in emergency) . "An inherent tension exists betwP.P.n the
11 II exercise of First Amendmen:: rights and the go'Jernrrcent' s need to
12
13 maintain order during a period of social strife.n In re Juan C.,
14 33 Cal. Rptr. Zd 919, 922 (Cal. Ct. App. 1995) . l·<hile the First

15 Amendment preserves the free exchange of competing ideas in public

16 forums, at the same time, "[t]he invocation of emergency powers

17 necessarily restricts activities that would normally be constitu-

IS tionally protected.n United States v. Chalk, 441 F.2d 1277, 1280

19 (4th Cir. 1971).

20

The government requires broad discretion in responding to an

21 emergency situation. See, ~' id. at 1280; see also Smith, 91

22
F.3d at 109. Because "con~rol of civil disorders that may

23
threaten the very existence of the State is certainly within the
24
police power ot" governrnent,n free speech must sometimes bend to
25
public safety. Chalk, 441 F.2d at 1279, quoting Stotland v. Penn-
26

AO 72 (Rev 81821

ORDER
Page - 12 -
I
I.

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 13 of 19

sylvania, 398 U.S. 916, 920 (1970). The government's actions

2 during a state of emergency are valid if reasonab::.y necessary to

3 preserve order. See Smith, 91 F.3d al 109; Chalk, 441 F.2d at

1281. The traditional test ls whetl:er de[endants acted in good
5 faith and with some reason for their actions. See Chalk, 441 F.2d
5 at 1281; Cougar Business Owners As;;'n v. [il:ilte, 97 Wn.2d 466, 647
7 ?.2d 481 (1982).
8
The Court finds that. the defendants properly applied their
9
emergency powers by implementing the restricted zone. Safety is
lJ
recognized as a significant 'Jovernment interest, as are the First
11
Amend;nent rights of WTO delegates. See generally Gricfcn, 200
12
F.3d 1256; sec also Perry v. Los Angeles Police Dep't, 121 F.3d
13
1365, 1359 (9th Cir. 1997). Plaintiffs hilve not challenged the
14
15 existence of an emergency. Nor is there any evidence that the
16 defendants acted in bad faith vi hen implemenc ing the Order. The
17 evidence is only that Schell and the other defendants hoped to
18 protect the WTO delegates, the President, and the public.

19

~inally, the evidence shows that the defendants had reason to

20 implement the zone. The police had faced violent clashes with

21 protesters for nearly 24 hours, and there is no evidence that the

22 violence was expected to subside. !1oreover, the President had

I

23 ,j
II

just arrived in Seattle and intended to appear at the WTO confer-

I 24 l ence. WTO delegates had faced assaults the prior day and were

2~ Il

required to travel again from Lheit· hotels to the conference

26

ORDER Page - 13 -

AO 72 ( RCIJ 0/82!

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 14 of 19

:::em:er on the coming days. Chaos and vandalism continued un-

2 a.bated.

3 I

The Ninth Ciccuit in Griefen uphceld a similac restricted zone

4 I in a non-emergency situaticr.. 200 F. 3d at 1256. The government

I 5 !

blocked all people -

including prote~teni

-

from a

construction

I6 site for safety reasons. Id. at 1262. The only persons allowed

7
into the site "ere those necessary for it to function. Id.

8
Protesters and the public were required to remain outside the
9
construction boundaries. Id. ,Just as in Gr iefen, the Seattle
10
zone allowed in only those necessary for the city to carry on its 11
normal functions: WTO delegates, business owners and custome~s,
12
and employees and other limited groups. Everyone else, protester
13

14 or not, remained outside.

15

Griefen's reasoning is even more pertinent during an emer-

16 gency. The panel touched on the broad powers required during

17 emergencies, saying "1ve have no doubt" that the government can

18 temporarily close "a str.ect engulfed ir. a riot or an unlawful

19 assembly." Id. at 1263. In addition, "var1dalism can hardly be

20 characterized as activlty protected by the First Amendment." Id.

21 at 1262. The d<efcndant~ in the current casrc faced ongoing vandal-

22 ism, riots, and violence that JUstified creation of the zone.

23 I

The plaintiffs argue that the emergency powers cases do not

24 II apply, and that Collins v. Jordan controls. 110 F.3d 1363 (9th

251 Cir. 1997)

In deciding whether the def,mdants could claim qnC~li-

261

O?.DEP.

Page - 14 -

1\0 72 !H~\~. 8i82)

'I Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 15 of 19
I

AO 72 (Rsv. 8/8:{1

fi.ed immunity in a Jawsui::, the Collins court held that i~t was unreasonable for the defendants to believe that during a state of
emergency San Francisco could ban all protests throughout the
ent:_re city. Id. at 1.371. T~c court reached t~is decision although violent outbreaks had occurr~d d11ring demonstrations the prior tugl:t, and aul:ho~~ities tearc'd adc.:ltional violence. I d. at 1372. "Tl:e law is clear that Firs: fl.mendment et:::tivity may not be ''armed simply because prior similar a:::::ivity led to or i.nvolved inst_a.nces of '..riolen::.::e." Id.
Collins differs greatly from the current case. Unlike Col~ins, the violence and riots were <eontinuinq unabated in Seattle ilt the time the defendar:ts issued the Order and imp:..emented the zone. The defendants did not base their decisions solely on past events; r~ther, they reacted to the chaos that co~tinued to occur even after the imposition of a curfew and in light of the presence of the President and foreign dignitilries. Nor did the defendants bau all protests throughout the city as did the defendants in Collins. Instead, tl1e defendants created a circumscribed zone surro·c1nding the WTO conference and allov<ed demonstrat.ions anywhere else downtown and ln the city at large. Wh.ile the Court recogr.izes that "[t]he generally accepted way of dealing with unlawful conduct that may be intertwined wlth First Amendment activity is
to punish it after it occurs," Id. at 1371-72, the amount of
vinlencte and number of protesters in the Sre~ttle dawntown core
ORDI-:8.
Paqe - 15 -

I Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 16 of 19

precluded such a course of action. The defendants acted properly

2 within the scope of their emergency powers when i:nplementing the

3 zone, and the eBtablishment of the zone c~early served a legiti-

' mate government purpose.

5

3. Narrowly Tailored

6

In addition, the Court finds that the emergency order was

7
narrowly tailored so as to constitute a valid time, place, and
8
ntanner rcgul at ion. The government need not create a tight fit
9
'='etwecn the policy goals and the policy ~t implements, although it
10
mus:: not use measures broader than necessary. See, ~' Madsen
I'
v. Women's Health Ctr., 512 U.S. "153, 771-72 (1994) (small buffer
12
zone narrowly tailored, larger zone not narrowly tailored); Bay
13

14 Area Peace Navy v. United States, 91.4 F.2d 1224, 1228 (9th Cir.

15 1990). Defendants did not restrict more speech than necessary 1n

16 Seattle. The Order, as implemented, affected only a section of

17 downtown and not the entire city. Compare Madsen, 512 U.S. at Fll

18 (small protected :t:ot1e 'Mas narrowly t-.ailorerl.), with Collins, 110

19 E". 3d at 1372 (citywide ban on protests too broad). The zone
20 covered only enough territory for the WTO delegates and the Presi-
21 dent to move safely from their hotels to the convention and lasted
22 only during the conference.
23
4. Ample Alternatives
24
Finally, the zone allowed ample alternatives for expression. 25
While an alternative th~t does not allow speakers to rR~ch their
26
ORDER
Page - 16 -

AO 71 IRe·'· B'82)

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 17 of 19

intenced audience does not suffice, See Un'tcd States v. Baugh,

2 18'7 F.3d 1037, 1044 (9th Ci.r. 1999); Bav Area, 914 F.2d at 1229,

3 the demonstrators in Seattle could reach their aud1ences. They

4 could protest just outside the boundar1es of the zone 21nd anywhere

5 else in the c~ty. Moreover, they had access to the media and to

6 the public beyond thu zone. The neusure ac; implemented Has a

7 valid time, place, and manner regulalion. 1 'I'h<" plaintiffs' cross-

8
motion for summary JUdgment is DEN=2D.

9
c.
10

Defendants' Notion tor Summarv Judgmen" on Probable Cause to Arrest

11

S11mmary =udgment .is appropriate only if there is no ger:uine

12 issue of material fact. Fed. R. Civ. P. 56. The dC!fendants

13 request a ruling that law enforcement of~icers had probable cause
14 to arrest those v;ho violated the Order and VJho obstructed vehicle
15
or pedestrian traffic after failing to d~sp~rse. To the extent
16
defendants seek a ruling that there 1s probable cause to arrest
17
persons who laH enforcement officers believe are breaking the lav;,
18 1
this is simply a ..t:·e.ileration of the principle of probable cause 19

20
'Plaintiffs also seem to argue that the zone acted as a prior

21 restraint. A prior restraint exists when a governrnen= agent

prohibits speech be fore it occurs based or_ content. See Alexander

22 v. United States, 509 U.S. 544, 550 (l'J9l). As explained, neither

the Order's language nor its implementation in the form of the

23 ,!

restricted zone measure did not

discriminated on content 01 viev;point, so the act as a prior restraint. Plaintiffs also claim,

24 I'Ii without explanation, that their right to freedom of assembly was

!I violated. The Order and zone allowed assemblies to co11tinue and
25 merely regulated the location of the assemblies in light of the

26 I emergency. No violation occurred.

I ORDE:R
II Page- 17-

1\0 12
(Rt:v. 818?}

I

,j

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 18 of 19

rather than an issue appropriate for sumnary judgment.

2

To the extent defendants seek an application of the probable

3 cause principle to individual cases, plaintiffs have raised fac-

4 tual disputes thilt prPcluc:ie summary judgment. They have provided 5 evidence that dispersul warnings may not have been clear, that

statutory exceptiono; may have applied to demonstrators' behavior,

and that intent is a key element in the alleged crimes. As proba-

8
ble cause is a fact-intensive inquiry that could turn on these

9
disputed elements, the decision is more appropriate £,:Jr the trier
10
of fact. See McKenzie v. Lamb, 73~ F.2d 1005, 1008 (9th Cir.
11
197 8) . The defendants' motion for summary judgment will be DE-
12

NIED.

13

'

D.
14

Defendants' Motion for Summary ,TudqmPnt on Failure to Train or Supervise

15

A municipality may be liable 11nder 42 U.S.C. § 1983 for

16
fa~lure to train or supervise only if its failure reflects a

17
"deliberate indifference." See Bryan County Cornm'rs v. Brown, 520
18
U.S. 397, 409-10 (1997); City of Canton, Ohio v. Harris, 489 U.S.
19
378, 388-89 (1989). Plaintiffs have prov~ded no evidence that
20
defendants had a policy of failing to train or supervise or that
21

defendants acted with deliberate 1ndifference. At best, plain-
22

23 '1 tiffs provide evldence t.hat so:ne law enf:Jrcement officers may have

~ 11sed excessive force and may not have received adequate training.

25 These facts do not rise to the level of deliberate indifference.

26
AO 12 (Relt 8/82)

ORDER
Page - 18 -

Case 2:00-cv-01672-MJP Document 55 Filed 10/29/01 Page 19 of 19
11

Defendants' motion for summary judgment w1ll be GRfu\!TE:D. 2

3

III. CONCLUSION

4

The court GRANTS in part and DENIE:S 1n .cart defendants'

5 motion tor suiDlllary judgment and DENIES pla1r1tif fs' motion for
6
summary judgment.
7
DATED at Seattle, Washir1gton th.is :C<J' day ot October, 2001.
8

9

10

BARBAR~ JAC BS ROTHSTEIN

UNITED STA •S DISTRICT JUDGE

11

12

13

14

15

16

17

18 '

19

~0

21

22

23

24

25

26
AO 72 IRi!V. 8)82)

ORDER rage - 19 -

 
 Case 2:00-cv-01672-MJP Document 77 Filed 12/07/01 Page 1 of 4

2

]filED JZ1!2rmw

-LODGfi) -RECEIVED 3

DEC 0 7 2001

4

5

6

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

7

AT SEATTLE

8

9 ROBERT HICKEY, KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE
10 LANE, CARROLL JACKSON, DENISE COOPER, NICOLE PEARSON, and
11 EMILY MALONEY, on behalf of themselves and all others similarly situated,

13
Plaintiffs,
14
v.
15
THE CITY OF SEATTLE, a 16 municipality; PAUL SCHELL,
Mayor of the City of Seattle; 17 and NORM STAMPER, Chief of
Police of the City of Seattle,
18

19

Defendants.

NO. C00-1672R
ORDER CLARIFYING CONSOLIDATED SUMMARY JUDGMENT ORDER

20
THIS MATTER comes before the court on the motion of
21
plaintiffs Robert Hickey, Kenneth Hankin, Jennifer Hudziec,
22
1 Stephanie Lane, Carroll Jackson, Denise Cooper, Nicole
23
24 Pearson, and Emily Maloney ("plaintiffs") for clarification

25
26 ORDER Page - 1

1\Ao 72
(Rev 8!82!
J1

Case 2:00-cv-01672-MJP Document 77 Filed 12/07/01 Page 2 of 4

and for entry of a dismissal order under Fed. R. Civ. P.

54(b). Having reviewed the papers filed in support of and in

2 opposition to this motion, the court rules as follows:

3

I. ANALYSIS

4

Plaintiffs seek a ruling whether the Consolidated Summary

5 Judgment Order issued by this court on October 29, 2001,

6 granted summary judgment "to defense on all claims of the
7 Hickey plaintiffs, including all facial and 'as applied'
8 claims under state and federal constitutional law." Dkt. #58,
9
at 3. Plaintiffs argue that a separate summary judgment
10
order, issued on November 1, 2001, in response to a different
11
motion brought by individual plaintiffs and based on the facts
12
of their individual arrests, raises questions about whether
13
the Consolidated Order disposed of all claims brought against
14
15 defendants. Plaintiffs want the court to clarify which claims
16 remain at issue and to formally dismiss claims by plaintiffs
17 arrested within the restricted zone.

13

To the extent clarification is necessary, the

19 Consolidated Order, and the briefing that preceded it, solely
20 i addressed the constitutionality of Emergency Order No. 3 on
21 its face and •as applied" in the creation of the restricted
22 zone. The court did not rule on the lawfulness of police
23
behavior when arresting individuals. In fact, the court
24
denied defendants' motion for summary judgment on the issue of
25
26 I'· ORDER II Page - 2

I
AO 72 (Rev. R/82)

Case 2:00-cv-01672-MJP Document 77 Filed 12/07/01 Page 3 of 4

probable cause to arrest, because plaintiffs raised issues of

fact that precluded summary judgment regardless of the

2 constitutionality of Emergency Order No. 3 facially or •as 3 applied" through creation of the restricted zone. The court 4 declines to rule on the legality of these arrests now in the

5 context of a motion to clarify without the benefit of briefing

6 on individual cases.' Given that plaintiffs' individual claims
7 have not been ruled on, the plaintiffs' request for an order
8 under Fed. R. Civ. Proc. 54(b) is DENIED.
9
Plaintiffs also seek clarification that the Consolidated
10
Order does not apply to plaintiffs arrested outside the
11
restricted zone. Because the Consolidated Order ruled on the
12
constitutionality of Emergency Order No. 3 and the restricted
13
zone, it is unclear why plaintiffs need clarification on this
14
issue. None of the parties sought a ruling on the legality of
15
16 such arrests, and the court, therefore, did not rule on those
17 arrests.

18

II. CONCLUSION

19

The court CLARIFIES the order issued on October 29, 2001.

20 Given the court's ruling that individual plaintiffs' claims 21 still remain, plaintiffs' request for entry of an order under
22

23

1In contrast, the four plaintiffs who brought the motion for

summary judgment that resulted in the November l, 2001, order 24 had briefed the individual facts of their cases and sought

25 rulings on their individual arrests.

26

ORDER Page - 3

AO 12 (Rev. 8'82)

Case 2:00-cv-01672-MJP Document 77 Filed 12/07/01 Page 4 of 4

Fed. R. Civ. P. 54(b) is DENIED.
' c.fU DATED at Seattle, Washington thls~ day of December,

2 2001.

3

4

UNITED STATES DISTRICT

JUDGE

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24 I

25
26 ORDER Page - 4

AD 72 (Rev. 8/82)

 
 Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 1 of 6

1 11111111111 III 1111111 IIIII III Ill IIIII II 11111111 IIlli II II 1111 ' -

2

1111111 1111111111 IIIII 11m 111111111111.11111 cv 00-1672 #80

3

4

~DGEO /)()Uf.D _ _ ENTERED RECEIVED

JAN 08 2002

llfSEATTLE

Q.ERK U S DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

BY

DEPUTY

5

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11

ROBERT HICKEY, eta/,

12

v.

Plaintiffs,

CASE NO C00-1672R

13

CITY OF SEATTLE, eta/,

14

Defendants.

REPORT AND RECOMMENDATION RE: CLASS CERTIFICATION

15

16

I

Eight named plaintiffs are proceeding through counsel m this 42 U.S.C § 1983 actwn.

17 They were all arrested by the Seattle Police Department or its agents m downtown Seattle on

18

December 1-2, 1999, during protests directed at the World Trade Organization (WTO)

19

mmisterial conference. They allege that defendants instituted a series of unconstitutional "no

20 protest" poliCies which created extensive curfews and a "no protest zone" surrounding the

21 conference location, and that pursuant to these policies defendants unlawfully arrested them,

22
along with several hundred other sunilarly situated persons, solely because they were

23 expressing an opinion about the WTO They seek declaratory relief, and compensatory and((\

24

pwritWe """"'~· (Do<. 24" 31)

25

~\j

26

REPORT AND RECOMMENDATION PAGE-l

Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 2 of 6

I

This matter comes before the court on plamtiffs' motion for class certification pursuant to

2

Federal Rule of Civil Procedure 23. (Doc. 25). Plamtiffs sought to represent a comprehens1ve

3

class for both declaratory relief and money damages, pursuant to Federal Rule of Civll

4

Procedure 23(b)(3). (See Doc. 51). Defendants opposed class certificatiOn on every ground

5

(See Doc. 53). The court, having cons1dered the motion and all papers filed m support and m

6

opposition, recommends that plaintiffs' motion for Rule 23 class certification be denied

7

ll

8

Several similar actions ansing from the WTO protests have been filed in this d1strict. 1 On

9

July 10, 2001, the District Court consolidated all of the pending cases, including the mstant

10

case, for the limited purpose of resolving certain common legal questwns regarding the

11

constitutionality ofdefendants' actions m response to the protests. (Menotti, C00-372R, Doc

12

39) On October 29, 2001, the District Court granted defendants' consolidated motion for

13

summary judgment on the fac1al constitutionality of Emergency Order Number 3, ruhng that 1t

14

was content-neutral. (Doc. 55 at 9-10) The Court also granted defendants' motion for

15

summary judgment on the fa!lure to train or supervise clauns, finding that plamtiffs failed to

16

provide ev1dence of any madequate trammg or supervisory policy. (See id at 18-19) The

17

Court denied plaintiffs' motion for summary JUdgment on the unconstitutional implementatiOn

18

of the Order with respect to the restricted zone, fmding that establishment of the zone served a

19

legitimate government purpose, was narrowly tailored, and provided ample alternatives for

20

expression. (ld at 10-17). Fmally, the Court denied defendants' motion for summary judgment

21

on the issue of probable cause for the arrests, concluding that such fact-intensive inquiry was

22

23

24

1 Menotti, et a! v City ofSeattle, et a!, C00-372R; Petrich v Czty ofSeattle, et a/,

25

C01-855R (removed to state court); Moore v City ofSeattle, et al, C00-1156R; Wzlliams, et

a! v City ofSeattle, et a!, C01-1998C; Brynn, et al v City ofSeattle, C00-2123; Crowley v

26

City ofSeattle, et al, C01-336Z.

REPORT AND RECOMMENDATION PAGE-2

Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 3 of 6

1

better suited for the trier of fact. (See Doc. 55 at 17-18). This ruling was clarified in an

2

additional Order filed on December 7, 2001 (Doc. 77)

3

Subsequently, plaintiffs filed a supplemental bnef acknow1edgmg that the Court's

4

summary judgment ruling rendered its previous motion for class certificatiOn obsolete, and

5

suggesting that the court hold the motion in abeyance pending eventual appeal of Judge

6

Rothstein's ruling. (Doc 78) Plaintiffs noted that the rulmg "essentially resolve[s] the clmms

7

that plaintiffs seek to pursue on behalf of the currently-proposed class Plaintiffs disagree w1th

8

the orders, but as long as they stand, there IS no pomt gomg forward with plaintiffs' current

9

class certification motion." (Id at 2).

10

To maintain a class action, plmntiffs must meet all the prereqUisites of Federal Rule of

11

Civil Procedure 23(a), and satisfy the criteria mat least one of the categories m Rule 23(b)

12

Plaintiffs bear the burden of showing that the requirements are satisfied. See General Tel Co

13

ofSouthwest v Falcon, 451 U.S. 147, 156 (1982). In light ofJudge Rothstein's ruling that

14

defendants' emergency "no protest" polic1es were constitutional both facially and as

15

implemented, plaintiffs cannot meet the commonality reqUirement of Rule 23(a)(2) As

16

plmntiffs acknowledge, the only questions common to all proposed plaintiffs have now been

17

resolved in favor of defendants. The Court's ruling also defeats the certification reqUirement of

18

Rule 23(b)(3), which requires that "questions oflaw or fact common to the members of the

19

class predominate over any questions affecting only md1vidual members."

20

III

21

Because plamtiffs adnut they cannot satisfy the cntena necessary for cert1ficat10n of the

22

proposed class, I recommend that the court deny plaintiffs' motion for class certificatiOn. A

23 24

L proposed order accompanies th1s Report and RecommendatiOn.

DATED this

day of January, 2002

25

26

REPORT AND RECOMMENDATION PAGE-3

Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 4 of 6

1

2

-

Fll,ED -··· .• ·- eNTERED

--LODGED

Rf.CEI'i£0

3

JAN 08 2002

4

16 SCArH.E
a.ERK US. DIBTII~Cj;,~~TON

5

BY WES1ERN DI8TIIIOT 01

DEPUTY

6

7

8

UNITED STATES DISTRICT COURT

9

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

10

11

ROBERT HICKEY, eta!,

12

Plamtiffs,

CASE NO. C00-1672R

v.
13

14

CITY OF SEATILE, et al ,

15

Defendants.

ORDER DENYING MOTION FOR CLASS CERTIFICATION

16

The Court, havmg reviewed plamtiffs' motion for class certificatiOn and all papers filed

17

in support and in opposition to that, the Report and Recommendation of the Hon. John L.

18

Weinberg, Umted States Magrstrate Judge, and any objections or responses to that; and the

19

remaming record, finds and ORDERS as follows·

20

(1) The Court adopts the Report and RecommendatiOn;

21

(2) Plaintiffs' motion for class certification (Doc. 25) is DENIED; and

22

(3) The Clerk shall send copies ofthis Order to all counsel ofrecord, and to Judge

23

Weinberg.

24

DATED this _ _ day of_ _ _ _ _ _ _, 2002

25

26

Barbara Jacobs Rothstem

United States District Judge

ORDER DENYING MOTION FOR CLASS CERTIFICATION

Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 5 of 6

...........SOF
JOHN L WEINBERG
UHI1'!D STATES IIUGS1'1VJ'E JIJ::)GE

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
January 8, 2002

Mr. Steve W. Berman Mr. Michael S McNamara
Hagens Berman LLP 1301 5th Ave Suite 2900 Seattle WA 98101
Mr. Arthur H. Bryant Ms. Victoria Ni
Trial Lawyers for Public Justice One Kaiser Plaza Suite 275 Oakland CA 94612
Mr. Thomas Sean Sheehan
Seattle City Attorney's Office 600 4th Avenue lOth Floor Seattle WA 98104-1877

Ms. Anne M. Bremner Mr. Theron A. Buck Ms. Heather L Carr
Mr. Stephen Powell Larson
Ms. L1sa M Marchese Stafford Frey Cooper 1301 5th Ave Suite 2500 Seattle WA 98101-2621

Mr. BenJamin SchwartZlll~Jfl.Eo ~

The Grant Law Finn 1.000£0

ED

1218 3rd Avenue

Suite 1000

JAN 08 20

Seattle WA 98101

M" SEAffiE

CI.ERK U S. DISTBICT COURT

WESTERN DISTRICT OF WASHINGTON

BY

DEPUTY

Re: Robert Hickey. et a!. v. City of Seattle eta!. C00-1672R
Dear Counsel:
Enclosed are copies of my Report and Recommendation and proposed order in the abovecaptioned case. The ongmals are being filed with the Clerk. This Report and Recommendation is not an appealable order. Any notice of appeal should not be filed until the District Judge enters JUdgment in this case.
Objections to the recommendation should be filed and served Within fifteen days of the date of this letter with copies to the Clerk for forwarding to the D1stnct Judge and to my office. Fru.lure to file objections within the specified time waives the right to appeal any order by the District Court adopting this report and recommendation. In accordance wtth our local rules, you should note your objections for consideration on the Judge's motion calendar for the third Friday after they are filed. If no timely
obJections are filed, the matter will be ready for consideration by the District Judge on January 25, 2002.

Case 2:00-cv-01672-MJP Document 80 Filed 01/08/02 Page 6 of 6 Thank you for your cooperation.

JLW/jvl
Enclosures
cc: JJon. Barbara Jacobs Rothstein /Court File C00-!672R

John L. inberg Umted tes Magistrate Ju ge

2

 
 Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 1 of 12

\,\{I

I

\\ .
'----L.\'ti-hU·

2

NOV n5 2002

3

: : H,., I' ', t Ji <,I ht/ L 'I

4

UNITED STATES DISTRICT \n.J.,\"U".\UC.R;1 '.1~.'; •., ''""'· , ,, ;.f1.?,~;rwv(, ,·u:·,'

WESTERN DISTRICT Of WASHINGTON

.,, ''"'

5

AT SEATTLE

6 ROBERT HICKEY, KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE
7 LANE, CARROLL JACKSON, DENISE COOPER, NICOLE PEARSON, and
8 EMILY MALONEY, on behalf of themselves and all others
9 similarly situated,

10

Plaintiffs,

NO. C00-1672R

11
12
13
h 14
""-.! 15
16
~.J 17 18
\l 19
"'i) 20
-~21

v.
THE CITY OF SEATTLE, a municipality; PAUL SCHELL, Mayor of the City of Seattle; and NORMAN STAMPER, Chief of Police of the City of Seattle,
Defendants.

ORDER GRANTING RULE 54(b) FINAL JUDGMENT AND CLASS CERTIFICATION

THIS MATTER comes before the court on two motions: (1) plaintiffs' second motion for 54(b) judgment and (2) plaintiffs' second motion for class certification. In a motion filed with the court on July 26, 2001, plaintiffs first sought certification of a comprehensive class for both declaratory relief and

22 money damages. That motion was denied after the court declared 23 constitutional the City's Civil Emergency Order Number 3 creating 24 a "No-Protest-Zone" during the World Trade Organization ("WTO") 25 ministerial conference in Seattle. The October 29, 2001 Order 26 effectively eliminated the claims common to the original proposed

ORDER Page - 1 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 2 of 12

I class as well as all of the claims of plaintiffs Kenneth Hankin,

2 Jennifer Hudziec, Stephanie Lane, Denise Cooper, and Nicole 3 Pearson. Plaintiffs' second motion for 54(b) judgment requests 4 the entry of final judgment as to these five named plaintiffs.

5

In their second motion for class certification, plaintiffs

6 seek to certify a smaller class of individuals, which consists of

7 all those arrested outside the No-Protest-Zone in a mass arrest

8 that took place at or near First Avenue and Broad Street in down-

9 town Seattle on December 1, 1999, and whose arrest records indi-

10 cate a violation of Seattle Municipal Code ("SMC") 12A.26.040.

II Defendants, in their opposition to plaintiffs' class certifica-

12 tion motion, argue that the motion is untimely and that it fails

13 to satisfy the requirements of Federal Rule of Civil Procedure

14 23. Having reviewed the documents in support of and in opposi-

15 tion to the motions for Rule 54(b) judgment and for class certif-

16 ication, the court finds and rules as follows:

17

18

I. BACKGROUND

19

On December l and 2, 1999, the City of Seattle ("City") made

20 numerous arrests of persons who were gathered to protest the WTO

21 ministerial conference held in Seattle. These arrests included

22 both persons arrested inside the city emergency order's No-

23 Protest-Zone and persons arrested outside the No-Protest-Zone.

24 Those arrested outside the No-Protest-Zone included a group of

25 approximately 140 individuals who were arrested at or near First

26 Avenue and Broad Street in Seattle at approximately 4:00p.m.

ORDER Page - 2 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 3 of 12

1 The arrest records of these individuals all indicate, on pre-

2 printed stickers, that they were booked on charges of "FAILURE

3 TO OBEY 12A.26.040." Weaver Decl., Exs. C and D. The arrest

4 records additionally indicate that the charges related to the

5 mayoral order that created the No-Protest-Zone during the WTO

6 conference.

7

On October 2, 2000, eight named plaintiffs filed a complaint

8 alleging that various actions by police and city officials

9 violated 42 U.S.C. § 1983. Due to unresolved discovery issues,

10 the court vacated all deadlines in this action, including the

11 deadline to file a motion for class certification, by Order dated

12 February 27, 2001. Plaintiffs thereafter requested an interlocu-

13 tory appeal, which the Ninth Circuit denied.

14

In the instant motions, plaintiffs seek a (1) Rule 54(b)

15 final judgment of the five named plaintiffs whose claims were

16 eliminated by the consolidated October 29, 2001 Order; and

17 (2) class certification of the group of individuals arrested

18 outside the No-Protest-Zone at or near First Avenue and Broad

19 Street on December 1, 1999.

20

21

II. DISCUSSION

22 A. Fed. R. Civ. P. 54(b)

23

The court will first address the Rule 54(b) motion. Plain-

24 tiffs argue that Rule 54(b) final judgment as to the five named

25 plaintiffs whose claims were eliminated by the consolidated

26 summary judgment order is warranted so that they may join the

ORDER Page - 3 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 4 of 12

1 appeal of the related case Menoti v. City of Seattle, C00-372R,

2 in which this court recently entered final judgment. Rule 54(b)

3 provides that a district court may ftdirect the entry of a final

4 judgment as to one or more but fewer than all of [multiple]

5 claims or parties only upon an express determination that there

6 is no just reason for delay and upon an express direction for the

7 entry of judgment." Before issuing a Rule 54(b) order, a dis-

8 trict court must first evaluate the interrelationship between all

9 the claims, to ensure that final judgment has been entered on at

10 least one entire claim and to avoid piecemeal litigation.

11 Curtis-Wright Corp. v. Gen. Elec. Corp., 446 U.S. 1, 10 (1980)

12

Here, final judgment against the five named plaintiffs

13 arrested inside the No-Protest Zone is proper. The court's

14 consolidated October 29, 2001 Order, finding the No-Protest-Zone

15 constitutional, effectively eliminated all claims made by these

16 five plaintiffs. The eliminated constitutional claims relating

17 to the No-Protest-Zone are separate and distinct from the surviv-

18 ing claims of the additional named plaintiffs whose claims relate

19 to their arrest outside the No-Protest-Zone. Further, since the

20 pending appeal in Menotti challenges precisely the issue on which

21 these plaintiffs' claims rest, it would be inequitable and

22 inefficient not to enter final judgment as to them. Accordingly,

23 the court GRANTS plaintiffs' motion. Final judgment shall be

24 entered against Kenneth Hankin, Jennifer Hudziec, Stephanie Lane,

25 Denise Cooper, and Nicole Pearson, the named plaintiffs arrested

26 inside the No-Protest-Zone.

ORDER Page - 4 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 5 of 12

I B. Class Certification

2

1. Timeliness

3

Turning to plaintiffs' motion for class certification, the

4 court first considers the City's timeliness challenge to this

5 motion. At first glance, the City's argument would appear to 6 have merit: it has been two years since this case was filed and 7 three years since the WTO Conference itself. Cf. Fed. R. Civ. P. 8 23 (c) (requiring a party to bring a motion to certify "as soon as 9 practicable after the commenceme~t of an action") . While the 10 motion might seem extremely late in coming, however, it appears II not to run afoul of any deadline. Prior to the original April 5, 12 2001 deadline for bringing a motion for class certification, the 13 court vacated all deadlines in this case. No case schedule has 14 been entered following the Ninth Circuit's denial of plaintiffs'

15 request for an interlocutory appeal. As such, the filing of this

16 motion, some two years after the commencement of this action,

17 does not appear to violate any procedural deadline.

18

2. Rule 23(a) Prerequisites

19

With this procedural objection out of the way, and disre-

20 garding whether plaintiffs' claims have merit, the motion for

21 class certification appears proper. Under Rule 23(a) plaintiffs

22 must show that the proposed class meets the prerequisites of

23 (a) numerosity, (b) commonality, (c) typicality, and (d) adequacy

24 of representation. ~' Amchem Prods .. Inc. v. Windsor, 521
25 u.s. 591, 613 (1997).

26

ORDER Page - 5 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 6 of 12

1

a. Numerosity

2

A proposed class meets the numerosity requirement if "the

3 class is so numerous that joinder of all members is impractica-

4 ble." Fed. R. Civ. P. 23 (a) (1). Additionally, small damage

5 claims weigh in favor of granting class certification. See,

6 ~. Phillips Petroleum Co. v. Shutts, 472 U.S. 797, 809 (1985) 7 ("Class actions also may permit the plaintiffs to pool claims

8 which would be uneconomical to litigate individually.").

9

Here, the proposed class size consists of approximately 140

10 members. Additionally, the individual damage claims involved are

11 small, making individual suits not practical. The numerosity

12 requirement is therefore satisfied.

13

b. Commonality

14

A class has sufficient commonality "if there are questions

15 of fact and law which are common to the class." Fed. R. Civ. P.

16 23(a)(2).

17

Here, it appears that sufficient questions of fact and law

18 are common to the class. All members of the proposed class were

19 arrested in mass and all but one member were charged with failing 20 to clear the street in accordance with a mayoral order. 1 Plain-

21 tiffs assert that no such mayoral order existed which included

22 the area in which the proposed class members were arrested.

23

24
1Plaintiffs admit that one proposed class member's arrest
25 record does not state the violation shared by the others. However, that member's record does not give any other reason for
26 arrest. Weaver Decl. 'll'll 4, 5.

ORDER Page - 6 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 7 of 12

1 Thus, common issues of fact and law exist as to why the arrest

2 was made, whether probable cause existed for the arrest, and

3 whether the arrest violated constitutional rights.

4

Defendants argue that individual circumstances exist for

5 each arrestee that prevent class certification. For instance,

6 defendants argue that even if probable cause did not exist to

7 arrest for violation of SMC 12A.26.040 2 , other legal bases for

8 arrest may have existed, such as obstruction of traffic. There

9 might very well be other circumstances justifying plaintiffs'

10 arrest. 3 However, considering that the arrest records of each of

11 the proposed class members do not mention other violations to

12 justify the initial arrest, this argument creates additional

13 questions common to the proposed class. Regardless, Rule 14 23(a) (2) does not require that class members share all questions 15 of law and fact. Accordingly, the commonality requirement is

16 satisfied.

17

c. Typicality

18

The typicality prerequisite of Rule 23(a) is fulfilled if

19 "the claims or defenses of the representative parties are typical

20

2SMC 12A.26.040 states: 21

22

A person is guilty of failure to obey the Mayor's emergency order when he or she knowingly

23

violates any order issued under authority of Sections l2A.26.010 or 12A.26.040.

24
3Indeed, the court has found such circumstances, including
25 obstruction of traffic in violation of the Seattle Municipal
Code, to have justified arrests in the Menotti case, which appear
26 similar to the ones in this case.

ORDER Page - 7 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 8 of 12

1 of the claims or defenses of the class." Fed. R. Civ. P.

2 23(a)(3).

3

Here, each member of the proposed class, including Hickey

4 and Jackson, was arrested at the same place, at the same time,

5 and was booked on the same charges. Hence, the typicality

6 requirement is met.

7

d. Adequacy of Representation

8

The final requirement of Rule 23(a) is that "the representa-

9 tive parties will fairly and adequately protect the interests of

10 the class." Fed. R. Civ. P. 23(a)(4). This element examines

11 both whether the named plaintiff or counsel have any conflicts of

12 interest with other class members and whether the named plaintiff

13 and counsel will vigorously prosecute the case. Hanlon, 150 F.3d

14 at 1020. Plaintiffs assert, and the City does not dispute, that

15 the representative plaintiffs' claims and interests are not in

16 conflict with any interests of the proposed class. Pls.' Br. at

17 12. Finally, plaintiffs provide evidence of sufficient resources

18 accessible through plaintiffs' counsel to represent the Class.

19 Weaver Reply Decl., 1 6. Accordingly, the adequacy of represen-

20 tation requirement is satisfied.

21

2. Rule 23 (b) (3) Requirements

22

In addition to the four prerequisites of Rule 23(a), Plain-

23 tiff must also meet the requirements of one of the subsections of

24 Rule 23(b). ~Zinser v. Accufix Research Inst., Inc., 253 F. 3d

25 1180, 1186, amended by 273 F.3d 1266 (9' 1 Cir. 2001). In this

26 case, plaintiffs move to certify the class under Rule 23(b) (3)

ORDER Page - 8 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 9 of 12

1 Rule 23 (b) (3) requires (a) that common questions of law and fact

2 predominate over individual questions and (b) that class resolu-

3 tion is superior to other methods of adjudication.

4

a. Predominance

5

"The Rule 23(b) (3) predominance inquiry tests whether

6 proposed classes are sufficiently cohesive to warrant adjudica-

7 tion by representation." Hanlon, 150 F.3d at 1022 (citing

8 Amchem, 521 U.S. at 623}. In analyzing cohesiveness, "it is not

9 enough to establish that common questions of law or fact merely

10 exist, as it is under Rule 23 (a} (2) 's commonality requirement."

11 Duncan v. Northwest Airlines, Inc., 203 F.R.D. 601, 611-612 (W.O.

12 Wash. 2001}. Instead, the inquiry must focus on "legal or

13 factual questions that qualify each class member's case as a

14 genuine controversy." Amchem, 521 U.S. at 623. When common

IS questions present a significant aspect of the case and they can

16 be resolved for all members of the class in a single adjudica-

17 tion, there is clear justification for handling the dispute on a

18 representative rather than on an individual basis. Hanlon, 150

19 F. 3d at 1022 (internal quotation omitted}. "Implicit in the

20 satisfaction of the predominance test is the notion that the

21 adjudication of common issues will help achieve judicial econ-

22 omy." Valentino v. Carter-Wallace, Inc., 97 F.3d 1227, 1234 (9'"

23 Cir. 1996).

24

Here, inasmuch as common issues of law and fact predominate

25 in this case, judicial economy would be served through class 26 certification. The proposed class members were arrested together

ORDER Page - 9 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 10 of 12

1 at the same general location, for the same alleged violation, and

2 they were booked on the same charge. Issues related to probable

3 cause arising from this mass arrest are common to the class.

4 The City's only serious argument-- that the court will have to

5 adjudicate independently the merits of each arrest in light of

6 other possible bases for the arrest

is not persuasive, given

7 the paucity of individual facts as to each arrest. Accordingly,

8 the court finds that the predominance requirement is satisfied.

9

b. Superiority

10

Rule 23 (b) (3) also requires that class action must be

11 "superior to other available methods for the fair and efficient

12 adjudication of the controversy." Fed. R. Civ. P. 23(b) (3).

13 Rule 23(b) (3) provides a non-exhaustive list of factors to

14 consider in determining superiority: the interest of members of

15 the class in individually controlling the prosecution or defense

16 of separate actions; the extent and nature of any litigation

17 concerning the controversy already commenced by and against

18 members of the class; the desirability or undesirability of

19 concentrating the litigation of the claims in the particular

20 forum; and the difficulties likely to be encountered in the

21 management of a class action. "Consideration of these factors

22 requires the court to focus on the efficiency and economy ele-

23 ments of the class action so that cases allowed under subdivision

24 (b) (3) are those that can be adjudicated most profitably on a

25 representative basis. Zinser, 253 F.3d at 1190 (quotations

26 omit ted) .

ORDER Page - 10 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 11 of 12

1

Here, the record before the court weighs in favor of certif-

2 ication. The plaintiffs have small damages claims that would

3 make individual litigation inefficient. Additionally, there is 4 no evidence of any pending litigation by members of the proposed 5 class regarding this controversy nor of any unusual obstacles 6 that would make managing the class particularly difficult. 7 Accordingly, the court finds that the superiority requirement of 8 Rule 23 (b) ( 3) is satisfied. 4

9

10

III. CONCLUSION

11

For the foregoing reasons, the court hereby GRANTS plain-

12 tiffs' motions for 54(b) judgment [doc no. 107-1] and for class

13 I I I 14 I I I 15 I I I 16

17

18

19

20

21

22

23

4Plaintiffs also moved to certify the class under Rule 23(b) (2). However, the court fails to see a need either for

24 injunctive or declaratory relief. The WTO conference has long
passed, the mayoral order is no longer in effect, and the unique

25 circumstances giving rise to these claims are no longer present.

Accordingly, class certification under Rule 23 (b) (2) is not

26 appropriate.

ORDER Page - 11 -

Case 2:00-cv-01672-MJP Document 111 Filed 11/05/02 Page 12 of 12

1 certification [doc. no. 96-1] . 5

2

DATED at Seattle, Washington this 5th day of November, 2002.

3

4

BS ROTHSTEIN

5

S DISTRICT JUDGE

6

7

8

9

lO

11

12

13

14

15

16

17

18

19

20

21 'The court modifies, however, the class definition to read
22 as follows:

23

All individuals arrested on December 1, 1999, at

24

or near the intersections of First Avenue and

Broad Street or First Avenue and Clay Street in

25

Seattle, Washington, whose arrest records indicate

that a reason for arrest was a violation of

26

Seattle Municipal Code § 12A.26.040.

ORDER Page - 12 -

 
 Case 2:00-cv-01672-MJP Document 248 Filed 07/15/04 Page 1 of 3

I

The Honorable Marsha Pechman

2 lll.lll.\llllll Ulll lllllllllliUIIIII\1111 3 1\lllll\lllllll\llllllllllllllllllllllll
4 00-C:V-01672-H< 'ST
5
6

~-FILED _ _ ENTERED

_ _ LODGED

RECEIVED

;JUL 15 2004

~a ~nu.

OLERI( U.S. DISTRICT COURT

W&:iTEftll DISTRICT OP WASHIMOTOH

"'

"'

7

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9
ROBERTIDCKEY, KENNE1HHANKIN, 10 JENNIFER HUDZIEC, STEPHANIE LANE,
CARROLL JACKSON, DENISE COOPER, 11 NICOLE PEARSON, and EMILY
MALONEY, on behalfofthemse1v.. and all 12 others similarly situated,

l3

Plaintiffs,

14

v.

No. C00-1672P
[PROPOSED) ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT AND DISMISSING THE CLAIMS OF ROBERT HICKEY, CARROLL JACKSON, AND THE CLASS THEY REPRESENT

15 THE CITY OF SEATTLE, a municipality; PAUL SCHELL, Mayor of the City of Seattle;
16 and NORMAN STAMPER, Chief of Police of
the City of Seattle, 17
Defcndaots. 18

19

20 TillS MATTER came before the Court on July \5,2004, pursuant to proper notice for
21 detennination, to determine whether the Court should approve the proposed settlement set forth
22 in the Settlement Agreement dated February 25, 2004 (the "Settlement Agreement"). The Court
23 has considered Plaintiffs' Motion for Final Approval and the exhibits attached thereto, and all the
24 papers filed and proceedings hereiiL The Court has determined that the Settlement should be
25 approved as fair, reasonable. and adequate and hereby orders this final order, which constitutes a
26 final adjudication of this matter on the merits as to Plaintiffs Robert Hickey, Carroll Jackson, aod

(PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS SEITLEMENT

-I•

-----1-·,J,~'·' r;,l\'1\\ :11' " . -----
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1101 ,._~'""'''· 5U.,... """"•11<<1TI~ WA tt.HII

Case 2:00-cv-01672-MJP Document 248 Filed 07/15/04 Page 2 of 3

1 the Class !hey represent. The Court hereby ORDERS that:

2

I. The Court has subject matterjurisdiction over the parties.

3

2. All defined tenns contained herein shall have the same meanings as set forth in

4 the Settlement Agreement. In particular, the term "Class" shall have the meaning ascribed to it

5 in paragraph I.e. of the Settlement Agreement. and this order shall not be construed as having

6 any affect the rights, claims, or appeals, ofanyone who is not a member of the Class.

7

3. The Court hereby approves the settlement and finds !hat the settlement is, fuir,

8 reasonable, and adequate in all respects.

9

4. The City shall pay to Plaintiffs' counsel the amount of$250,000 within 10 days of

10 this Order. Plaintiffs' counsel shall deduct the amount awarded for attorneys' fees and incentive

II awards, and then pay settlement awards to all Class Members who return a valid and timely

12 Claim Form, in accordance with paragraphs 6 and 10 of the Settlement Agreement.

13

5. This Court hereby dismisses the claims of Robert Hickey, Carroll Jackson, and

14 the Class with prejudice. This order does not affect the rights, claims, or appeals of any other

15 Plaintiffs named in the complaint, or any individuals who are not members ofthe Class.

16

6. The Notice distributed by first-class mail to the Class and the Published Notice,

17 taken together, and along with the electronic notices sent by Plaintiffs' counsel to Class

18 members. constitute the best notice practicable under the circumstances, including individual

19 notice to all members of the Class who could be identified through reasonable efforts. The

20 Notice distributed by flrst-<:lass mail and the Published Notice, on their own, provided due and

21 adequate notice of these proceedings and of lhe matters set forth therein, including the

22 settlement, to all persons entitled to such notice, and those notices fully satisfied the

23 requirements of Fed. R. Civ. P. 23 and lhe requirements of due pwcess.

24

7. The Court reserves jurisdiction, without affecting the finality of this jndgrnent,

25 over (a) implementation and administration of the settlement; (b) any dispute between the parties

26 concerning the interpretation. application, or enforcement ofthe Settlement Agreement; and
(c) any post-finai.judgment matters as may be appropriate under court rules.

(PROPOSED! ORDER GRANTING FINAL

-2 -

APPROVAL OF CLASS SEITLEMENT

C•IIUI~U L.,I,U~UU l . . tnr(""") 5urtu
'''"_.," .,,,...._ !W!\"o;l'""'•""...,.·'.. W~'IK1U1

Case 2:00-cv-01672-MJP Document 248 Filed 07/15/04 Page 3 of 3

I

IT IS SO ORDERED.

9u4 2
3 Dated:

/~

4

5 6

, 2004. United States District

7 Presented by: 8 HAGENS BERMAN LLP

9

10 ByS' teve~I enn~ an,~ WSBA #12536

11

Tyler Weaver, WSBA #29413

12 Lead Attorneys for Plaintiffs and the Class

13

14

15

16

17

18

19

20

21

22

23

24

25

26

.~

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT

- 3-

----·----fi~GEX' :1~R1U:-.J liP

I I' •

I I

-------

C:••n111-n Lo• An•••• PKOUI~]II•c] Surnr

UIU """" ~"""'" . . .'JI' . . . . . .UTTI.< W~OIII>I

 
 Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 1 of 14

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 ROBERT HICKEY, et al.,

8

Plaintiff,

9 v.

10 CITY OF SEATTLE,

11

Defendant.

12

No. C00-1672MJP
ORDER GRANTING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION

13

This case comes before the Court on Plaintiffs’ Third Motion for Class Certification. (Dkt.

14 No. 261). The Court has reviewed Defendant’s opposition to this motion, Plaintiffs’ Reply and both

15 parties’ Surreplies to this Motion (Dkt. Nos. 271, 282, 300 & 302), as well as all exhibits and papers

16 submitted in support of the parties’ positions. Having also heard oral argument from Plaintiffs and

17 Defendant (“the City”), the Court hereby CERTIFIES a third class in this matter and STRIKES

18 Defendant’s late-filed surreply. The City’s surreply is struck because it was submitted at

19 approximately 3:35 p.m. on the last business day before oral argument was held in this matter.

20 Regardless of the Defendant’s actual intentions in making such a late filing, the Court will not

21 condone such practices because they do not comply with court rules and are disrespectful of both

22 opposing counsel and the Court.

23

FACTUAL AND PROCEDURAL BACKGROUND

24 I. Facts

25

On November 30, 1999, the ministerial conference of the World Trade Organization (“WTO”)

26 convened in Seattle, WA. Dignitaries from 134 member nations, including U.S. President Clinton,

ORDER - 1

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 2 of 14

1 came to Seattle to attend the conference. Tens of thousands of protesters also convened in the city to

2 protest the policies and agenda of the WTO. While many of the protesters who gathered engaged in

3 peaceful demonstrations, a noticeable portion of the protesters engaged in civil disobedience tactics,

4 such as sit-ins at major intersections, designed to disrupt the conference. Still others employed

5 violent protest strategies such as vandalism, setting fires, and looting businesses near the Convention

6 Center, which housed most of the WTO meetings.

7

The size and intensity of the protest activities surpassed the ability of the Seattle police force

8 to maintain order. At 3:30 on Tuesday, November 30, 1999, then-Mayor Schell declared a civil

9 emergency. (Defs’ Resp. at 7). In response, Governor Locke deployed the national guard. (Id.).

10 Despite these measures, the protests continued and, the City alleges, became even more violent. In

11 the early morning hours of December 1, 1999, Mayor Schell issued Emergency Order No. 3, which

12 created a restricted zone where protest was prohibited during the course of the WTO convention in

13 the core of downtown Seattle (the “No Protest Zone”). Only WTO delegates and personnel,

14 employees of downtown businesses, residents, and emergency and safety personnel were allowed

15 within the zone. In practice, the Seattle police also allowed shoppers, city officials, the press, and

16 others with legitimate, non-protest related activities to also enter the “No Protest Zone.” (Id. at 8-9),

17 Menotti v. City of Seattle, 409 F. 3d 1113, 1125 ( 9th Cir. 2005).

18

On the morning of December 1, 1999, Plaintiffs allege that the Seattle police trapped and

19 arrested a group of approximately 200 people in or near Westlake Park, which was inside the No

20 Protest Zone described by Emergency Order No. 3. Plaintiffs acknowledge that many of the Plaintiffs

21 reached the park through different routes. Some marched in protest all the way from Denny Park as a

22 group. Others joined the group once it was in downtown Seattle. Still others were members of the

23 media, or people who were just at the park. Plaintiffs state that none of these individuals were

24 engaged in violent protest and that the entire course of events at Westlake Park, including the arrests,

25 took place peacefully. (Pl’s Mot. at 2-3). Plaintiffs allege that all of these individuals were arrested

26 without being given a chance to disperse and that the police arrested them without findings of

ORDER - 2

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 3 of 14

1 individualized probable cause. As they were arrested, Plaintiffs were allegedly loaded onto buses and

2 transported to the Sandpoint Naval Station, where many “were forced to sit on buses for hours

3 without food, water, or sanitation.” (Id. at 4). Plaintiffs claim that many of the individuals arrested at

4 Westlake Park were detained for several days. (Id.)

5

Plaintiffs allege that the Seattle police used generalized, photocopied arrest records that only

6 give a partial and inaccurate account of the event. In support of this allegation, Plaintiffs have

7 submitted arrest records for the named Plaintiffs Kenneth Hankin, Stephanie Lane, and Jennifer

8 Hudziec in this matter. Each Plaintiff’s “Prisoner Identification Form” reads:

9

10

LT WHELAN GAVE ORDERS TO DISBURSE [sic] FROM WESTLAKE PARK

ALL REFUSED TO LEAVE AND WERE BLOCKING THE SIDEWALKS. NO

11

PHOTO TAKEN IN FIELD DUE TO NUMBER OF ARRESSTEES [sic] REFUSED

TO GET OFF TRANSPORT BUS AT SANDPOINT PRISONER PROCESSING

12

STATION

13 (Pl’s Exs. I-K at 88, 104, and 126).
14 II. Procedural History
15 This case was originally filed before Judge Rothstein in this Court on October 2, 2000. This
16 action was filed on behalf of a broad class of people arrested during the enforcement of Emergency
17 Order No. 3 and the No-Protest Zone on December 1, 1999. Early in the case, Plaintiffs filed a first
18 motion for class certification for a comprehensive class involving all people arrested in the downtown
19 area on that day. This motion for class certification became moot and was denied after a series of
20 summary judgment rulings by Judge Rothstein. Plaintiffs sought and obtained a certificate of
21 appealability of some of these issues to the Ninth Circuit, which originally denied an interlocutory
22 appeal in this case.
23 In the meantime, the Plaintiffs sought to certify a second class before Judge Rothstein. This
24 second class included people allegedly “herded” by police into an area around First Avenue and
25 Broad Street, which was outside of the No Protest Zone, and arrested. Plaintiffs Hickey and Jackson
26 were the named Plaintiffs for this second class. The Order certifying the second class also entered

ORDER - 3

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 4 of 14

1 final judgment in the cases of five of the original named Plaintiffs (Kenneth Hankin, Jennifer Hudziec,

2 Stephanie Lane, Denise Cooper, and Nicole Pearson), whose entire claims became moot in light of

3 Judge Rothstein’s summary judgment rulings. These five Plaintiffs joined the appeal in the related

4 Menotti v. City of Seattle case (C00-372BJR), which was then before the Ninth Circuit. (Dkt. No.

5 111 at 4).1

6

On August 19, 2003, the Hickey case was transferred to Judge Pechman. (Dkt. No. 135). On

7 December 29, 2003, the Court issued an Order regarding the parties’ cross motions for summary

8 judgment as to the second class. (Dkt. No. 184). In this Order Judge Pechman granted in part and

9 denied in part the parties’ motions, finding issues of fact for trial regarding ratification of the police

10 officer’s actions by people with final policymaking authority and liability. On July 15, 2004, Judge

11 Pechman approved a final class settlement as to the second class and dismissed the claims of Hickey

12 and Jackson and the class represented by them. (Dkt. No. 248).

13

On June 2, 2005, the Ninth Circuit issued its opinion in the Menotti case, which affirmed

14 Judge Rothstein’s decision regarding the facial constitutionality of Emergency Order No. 3, but

15 remanded the case for further proceedings as to the constitutionality of the order as applied to

16 Plaintiffs. Menotti v. City of Seattle, 409 F. 3d 1113, 1148 ( 9th Cir. 2005). While the Ninth Circuit’s

17 opinion in Menotti found that Emergency Order No. 3 was a lawful “time, place, and

18 manner”restriction on its face and did not run afoul of the First Amendment, the Ninth Circuit also

19 observed that statements of several individuals, including that of Kenneth Hankin, detained in or near

20 to the No Protest Zone created issues of fact regarding “whether it was the policy of the City to apply

21 Order No. 3 in a manner that excluded only anti-WTO protestors.” 409 F. 3d at 1142, 1146-48.

22

The five Plaintiffs from this action requested to have the remainder of their case proceed

23 separately from the remand in the Menotti case, because they claimed that Menotti is much closer to

24

25 1Judge Rothstein retains the Menotti case.
26

ORDER - 4

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 5 of 14

1 trial than this case. (See Joint Status Report, Dkt. No. 259). On remand, the Plaintiffs ask this Court

2 to certify a class of:

3

[a]ll individuals arrested on the morning of December 1, 1999, in Seattle, Washington,

in Westlake Park or the streets or sidewalks immediately adjacent to the park.

4 (Pl’s Mot. at 8). Plaintiffs propose that Kenneth Hankin, Denise Cooper, Jennifer Hudziec, and

5 Stephanie Lane serve as class representatives, should the Court certify this class action. Defendant

6 opposes certification of the class and challenges the proposed class on every prong of the criteria for

7 class certification set forth in Fed. R. Civ. P. 23. Defendant also challenges the proposed class

8 alleging that there has been insufficient time for discovery, that the class members do not have

9 standing to proceed as a class, and that the proposed class is ill-defined.

10 ANALYSIS

11 I. Discovery Issues & Standing

12 A. Discovery

13 When this case was remanded, the parties filed a joint status report indicating that they agreed

14 that a seven-month period of discovery would be appropriate in this matter. (Dkt. No. 259 at 2).

15 However, the Court never entered a scheduling order in this matter after the joint status report was

16 filed. On January 19, 2006, Plaintiffs filed this motion for class certification. The City maintains that

17 it needs more discovery in this matter and contends that the class certification motion is premature.

18 Fed. R. Civ. P. 23(c)(1) requires the Court to determine, “at an early practicable time” whether to

19 certify an action as a class action. Nonetheless, pre-certification discovery and rulings on dispositive

20 motions may be appropriate to help focus the case. Federal Judicial Ctr., Manual for Complex

21 Litigation 253 (4th ed. 2004). Although the Court is deciding to certify the class in this order, the

22 Court will also grant Defendant’s request for more time for discovery in this matter. The Court

23 grants the parties an additional ninety days of discovery in this matter. This discovery period will be

24 reflected in the scheduling order that will soon issue in this case. Any extensions of this deadline,

25 whether stipulated or not, must be approved by this Court to be valid.

26 B. Standing

ORDER - 5

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 6 of 14

1

Defendant argues that Plaintiffs have no standing to pursue certification of the current class,

2 whose claim rests on alleged violations of the Fourth Amendment by the city of Seattle police,

3 because Plaintiffs abandoned any Fourth Amendment claims early in the litigation. The record of this

4 case is somewhat ambiguous on this matter. In support of its argument, Defendant cites Docket

5 Number 77, which is a clarification order issued by Judge Rothstein after the first round of summary

6 judgment motions in this matter. The order states:

7

8

The court did not rule on the lawfulness of police behavior when arresting individuals.

In fact, the court denied defendants’ motion for summary judgment on the issue of

9

probable cause to arrest, because plaintiffs raised issues of fact that precluded

summary judgment regardless of the constitutionality of Emergency Order No. 3

10

facially or “as applied” through creation of the restricted zone. . .Given that plaintiffs’

individual claims have not been ruled on, the plaintiffs’ request for an order under Fed.

11

R. Civ. Proc. 54(b) is DENIED.

12 (Dkt. No. 77 at 2-3). At docket number 78, Plaintiffs submitted a supplemental brief on class
13 certification, aimed primarily at clarifying the posture of the case for the Court. In this submission,
14 Plaintiffs state, “[p]ut simply, plaintiffs’ only claims for people arrested inside the No Protest Zone
15 were based on the unconstitutionality of Order No. 3 and the No Protest Zone. After Judge
16 Rothstein’s summary judgment order and clarification, plaintiffs have no claims left for these people.”
17 (Dkt. No. 78 at 2). Following this submission, Judge Rothstein denied certification of the first class,
18 but granted a certificate of appealability on the issue of the constitutionality of Emergency Order No.
19 3. The Ninth Circuit rejected the certificate of appealability and almost a year later, Judge Rothstein
20 reversed her previous position and entered 54(b) judgment as to Plaintiffs Hankin, Hudziec, Pearson,
21 Cooper, and Lane (hereinafter, “the Hankin Plaintiffs”) and the class they represented so that they
22 could join the Menotti appeal. (Dkt. No. 111). Between the entry of that order and now, the Court
23 can find no order on the docket resolving the Fourth Amendment issues of the Hankin Plaintiffs.
24 There appears to be confusion on the part of the parties. The Hankin Plaintiffs seem to view
25 their Fourth Amendment claims as part and parcel of how Order No. 3 was applied to them.
26

ORDER - 6

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 7 of 14

1 However, given the Hankin Plaintiffs’ previous representations and the Court’s reversal of its position

2 to enter judgment, the City’s view that Plaintiffs abandoned these claims is not surprising.

3

On May 2, 2006, the parties stipulated to the entry of Plaintiff’s Second Amended Class

4 Action Complaint (Dkt. No. 296). Paragraph 102(b) of this Complaint specifically puts at issue,

5 “whether the arrests of plaintiffs and the Class while physically within one of the City’s declared

6 curfew zones or ‘no protest’ zones violated the federal First and Fourth Amendment rights of

7 plaintiffs and the Class.” (Id. at 27). Although this issue is not exactly the same as the issue remanded

8 to this Court by the Ninth Circuit, whether or not the Seattle City police were violating the Fourth

9 Amendment rights of people they perceived to be WTO-protesters is a pertinent inquiry for the Court

10 because these issues were originally brought before the Court when this action commenced, but have

11 not been resolved. Additionally, as evidenced by the Ninth Circuit’s discussion of Plaintiff Hankin’s

12 declaration, these issues are related to the mandate given to this Court by the Ninth Circuit. Menotti,

13 409 F. 3d at 1146-47. For these reasons, the Court will allow Plaintiffs to proceed as a class with

14 their Fourth Amendment claims against Defendant.

15 II. Is the Proposed Class Well-Defined?

16

Before launching into its challenge to Plaintiffs’ proposed class certification under Fed. R.

17 Civ. P. 23, the City objects to the class on the grounds that it is ill-defined. Defendant claims that

18 Plaintiffs’ proposed class definition is too broad and ambiguous and that it will be difficult to identify

19 who is a member of the class.

20

Plaintiffs’ proposed class definition reads: “[a]ll individuals arrested on the morning of

21 December 1, 1999, in Seattle, Washington, in Westlake Park or the streets or sidewalks immediately

22 adjacent to the park.” (Pl’s Mot. at 8).

23

Defendant objects to this definition because: 1) the word “arrest” is too vague; 2) the word

24 “morning” is also ambiguous; and 3) the use of the phrase “in Westlake Park or the streets or

25 sidewalks immediately adjacent to the park” is too loose. The Court agrees with Defendant that the

26

ORDER - 7

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 8 of 14

1 use of the word “morning” and the geographical boundaries for the arrests could be more well-

2 defined. However, the City’s objection to the use of the word “arrest” is meritless.

3

Federal defendants in the Chang v. United States case made a similar argument, stating that

4 the court would have to make individualized findings regarding the circumstances of each class

5 members’ arrest that would undermine the representative purpose of the class action. 217 F.R.D. 262,

6 270 (D.D.C. 2003). The court in Chang dismissed that argument, observing that the arrests in

7 question resulted from a mass arrest action on the part of the police, who were trying to quell a

8 protest. Id.. The Chang court noted the overriding factual and legal similarities of the cases of the

9 Plaintiffs before it and analogized the case to the Dellums case, which certified a class of “all persons

10 who were arrested while assembled on the Capitol steps on May 5, 1971" in protest of the Vietnam

11 War. See Dellums v. Powell, 566 F. 2d 167 (D.C. Cir.1977). Other courts have also followed this

12 rationale, finding that in cases of mass arrest or detention, plaintiffs’ factual and legal claims were

13 sufficiently similar to justify certification of a class, despite alleged individualized defenses to these

14 claims. See e.g. Patrykus v. Gomilla, 121 F.R.D. 357 (N.D. IL 1988); Johns v. DeLeonardis, 145

15 F.R.D. 480 (N.D. IL 1992). Plaintiffs also observe that the fact of each individual Plaintiff’s arrest

16 can be shown via the arrest records for these people. (See Weaver Decl., Ex. D). Regarding

17 Defendant’s objections to the use of the word “morning” and the non-specific geographic boundaries

18 in the class definition, the Court agrees with the City that the vagueness of these terms could pose

19 problems for this litigation as this case progresses. However, these flaws are not fatal to class

20 certification because they are problems that are easily corrected. Almost all of the arrest records

21 submitted in support of this motion by Plaintiffs indicate an arrest time of 9:00 a.m. (Weaver Decl.,

22 Exs. E-G, I-L, O-X). The only exceptions are the arrest records of Dana Schuerholtz and Abraham

23 Haim, which indicate an arrest time of 7:40 a.m. (Id., Ex. C, Haim Decl.). While there is evidence that

24 the arrest records are not completely accurate (See Haim Decl., ¶14), a twelve hour window for

25 arrests seems broader than necessary. Accordingly, the Court will certify a class of people arrested

26 between 6 a.m. and 12 p.m. on December 1, 1999, in Westlake Park. Similarly, Plaintiffs indicate in

ORDER - 8

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 9 of 14

1 their Reply that they could easily designate the streets that border Westlake Park. In the interest of

2 making the class members as easily identifiable as possible, the Court will certify a class of

3

all individuals arrested between 6 a.m. and 12 p.m. on December 1, 1999, in Seattle,

Washington, in Westlake Park, or on the streets or sidewalks on Fourth Avenue,

4

between Pike Street and Pine Street, or on Pike or Pine Streets between Fourth and

Fifth Avenues.

5 III. Fed. R. Civ. P. 23(a)

6 Under Fed. R. Civ. P. 23(a) Plaintiffs must show that the proposed class meets the

7 prerequisites of (a) numerosity, (b) commonality, (c) typicality, and (d) adequacy of representation.

8 E.g., Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 613 (1997). Failure to adequately fulfill any of

9 Rule 23's requirements will preclude certification of a proposed class action. Rutledge v. Electric

10 Hose & Rubber Co., 511 F. 2d 668, 673 (9th Cir. 1975). The parties seeking certification bear the

11 burden of demonstrating that all of the requisites set forth in Fed. R. Civ. P. 23 have been met.

12 Chang, 217 F.R.D. at 268.

13 A. Numerosity

14 A proposed class meets the numerosity requirement if “the class is so numerous that joinder of

15 all members is impracticable.” Fed. R. Civ. P. 23(a)(1). Here, Plaintiffs argue that with a proposed

16 class of between 128- 200 individuals, numerosity is not an issue in this case. Defendants, however,

17 argue that the issue of numerosity is not necessarily an easy issue for Plaintiffs because they have not

18 demonstrated that joinder of all Plaintiffs is impracticable.

19 While there are cases where a court has declined to certify a large class because Plaintiffs have

20 not demonstrated impracticability of joinder, there is much more precedent supporting the notion that

21 actions involving of hundreds of plaintiffs are sufficiently numerous to be certified as a class. See e.g.

22 Chang, 217 F.R.D. at 269 (citing Franklin v. Barry, 909 F. Supp. 21, 30 (D.D.C. 1995), which held

23 that a class of 200 satisfied the numerosity requirement). Additionally, Plaintiffs have asserted that

24 some of the individuals involved in the arrest at Westlake Park have moved out of state, or even out

25 of the country, since this litigation was originally filed. (Am. Compl. at 4-5). Given the strong

26 precedent in this area and Plaintiffs’ claim that some members of the class have relocated, the Court

ORDER - 9

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 10 of 14

1 finds that the proposed class is sufficiently numerous for certification and that joinder of all of the

2 Plaintiffs in this action would be impracticable.

3

B. Commonality

4

The commonality requirement is satisfied “if there are questions of fact and law which are

5 common to the class.” Fed. R. Civ. P. 23(a)(2). Defendants claim that Plaintiffs do not fulfill the

6 commonality requirement because “each class member’s claims necessitate individual determinations

7 of liability.” (Def’s Resp. At 19). However, “‘[t]he commonality test is met where there is at least

8 one issue, the resolution of which will affect all or a significant number of the putative class

9 members.’” Chang, 217 F.R.D. at 269. Here, all of the Plaintiffs were allegedly scooped up by the

10 police in a mass arrest, without an individualized probable cause determination as to each Plaintiff.

11 Although Defendants are correct that probable cause determinations are normally individualized

12 processes that are inappropriate for representative adjudication, other courts have certified classes of

13 protesters swept up in mass arrests. Id. at 274; Dellums v. Powell, 566 F. 2d 167 (1977).

14 Additionally, the Southern District of New York certified a class of people who had been allegedly

15 strip searched pursuant to an indiscriminate strip search policy of all potential inmates. Maneely v.

16 City of Newburgh, 208 F.R.D. 69 (2002). Although the Maneely court acknowledged that there

17 would be some individual issues regarding reasonable suspicion under the Fourth Amendment, the

18 court found that these issues could be dealt with individually at the damages stage of that litigation.

19 Id. at 78-79. The Maneely court found it efficient to certify a class to resolve the issue of whether or

20 not a policy existed that mandated indiscriminate strip searches and that the efficacy of resolving this

21 issue en masse trumped any difficulties that might arise because of individual reasonable suspicion

22 determination.

23

This case is analogous because Plaintiffs will have to show that the Seattle police acted

24 pursuant to a policy or that a decision maker ratified the actions of the arresting police officers in

25 order to demonstrate the liability of the municipal government of Seattle. See Christie v. Iopa, 176 F.

26 3d 1231, 1235-41 (9th Cir. 1999). The common factual allegations surrounding each Plaintiff’s arrest,

ORDER - 10

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 11 of 14

1 as well as these common legal issues justify a finding on the part of this Court that Plaintiffs have

2 satisfied the commonality inquiry.

3

C. Typicality

4

The Court may find typicality if “the claims or defenses of the representative parties are

5 typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). The Ninth Circuit has held

6 that Rule 23(a)(3) should be interpreted somewhat permissively and that “representative claims are

7 ‘typical’ if the are reasonably co-extensive with those of the absent class members; they need not be

8 substantially identical.” Hanlon v. Chrysler Corp., 150 F. 3d 1011, 1020 (9th Cir. 1997).

9

Given this permissive standard, and the affidavits submitted by the named and unnamed

10 Plaintiffs in this action, typicality is met. Plaintiffs Hudziec, Cooper and Hankin arrived at Westlake

11 Park from Denny Park, while Plaintiff Lane states that she joined the protest downtown. Plaintiffs

12 Haim’s and Worden’s affidavits seem to support the fact that the named Plaintiff’s experiences were

13 similar to those of other, unnamed Plaintiffs. In addition to the typicality of their factual situations,

14 the named Plaintiffs legal claims and Defendants defenses to these claims appear to be similar to those

15 of the rest of the class. For these reasons, the Court finds that the typicality prong is satisfied. D.

16 Adequacy of Representation

17

The fourth and final prong of Rule 23(a) requires that “the representative parties will fairly

18 and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). In order to satisfy this

19 prong, the Plaintiffs must show that the named Plaintiffs do not have any conflicts of interest with

20 other class members. Additionally, the Court must examine whether the named Plaintiffs and counsel

21 will vigorously prosecute the case. Hanlon, 150 F. 3d at 1020. Here, Defendants make a flat

22 statement that Plaintiffs have not demonstrated this prong of the class certification analysis, but

23 provide no support for this statement. (Def’s Resp. at 21). Plaintiffs claim that the class

24 representatives’ interests are entirely coincident with that of other class members. (Pl’s Mot. at 14).

25 Additionally, they note that Judge Rothstein already found counsel in this matter to be adequate

26 professional representatives. (See Dkt. No. 111). The Hagens Berman law firm representing

ORDER - 11

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 12 of 14

1 Plaintiffs in this matter has experience representing complex class actions. Additionally, Defendants

2 have raised no serious challenges regarding any conflicts of interest that named Plaintiffs may have.

3 The Court finds that the adequacy of representation prong is satisfied.

4 IV. Fed. R. Civ. P. 23(b)

5

In addition to meeting the requirements set forth in Fed. R. Civ. P. 23(a), Plaintiffs must also

6 demonstrate that the class can be maintained under the requirements of either Fed. R. Civ. P.

7 23(b)(1), (2), or (3). Hanlon, 150 F. 3d. at 1022. The Plaintiffs in this case claim that this action

8 satisfies the requisites of Rule 23(b)(3).

9

A. Predominance and Superiority

10

Under Fed. R. Civ. P. 23(b)(3), the Court must determine “whether the proposed class[. ..]

11 [is] sufficiently cohesive to warrant adjudication by representation.” Id., 150 F. 3d at 1022 (citing

12 Amchem, 521 U.S. at 623). To make this decision, the Court must find that, “the questions of law or

13 fact common to the members of the class predominate over any questions affecting only individual

14 members.” Fed. R. Civ. P. 23(b)(3). The Court must also make a finding that a class action is

15 “superior to other available methods for the fair and efficient adjudication of the controversy.” Id. In

16 making these findings, the Court must consider four factors: 1) the interest individual members of the

17 class may have in controlling their own actions, rather than proceeding as part of a class; 2) whether

18 or not any members of the proposed class have already engaged in related litigation; 3) the

19 appropriateness of the chosen forum; and 4) difficulties in managing the proposed class. Id.

20

The Court has already ruled that the claims set forth by the Hankin Plaintiffs in this case

21 satisfy the commonality prong of Fed. R. Civ. P. 23(b). However, commonality alone will not satisfy

22 the predominance inquiry. Hanlon, 150 F.3d at 1022. Instead, the predominance inquiry looks to the

23 relationship between the common claims and individual issues. Id. “‘When common questions present

24 a significant aspect of the case and they can be resolved for all members of the class in a single

25 adjudication, there is a clear justification for handling the dispute on a representative basis.’” Id.,

26

ORDER - 12

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 13 of 14

1 quoting 7A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice & Procedure

2 §1778 (2d ed. 1986).

3

As stated before, Defendants claim that individual issues surrounding the probable cause

4 determination and the legality of Plaintiffs’ arrests will predominate over the common issues in this

5 action and make it unmanageable. Based on case examples to which this Court has referred, supra,

6 unwieldy individual claims need not dominate the case if it is structured properly. For this reason, in

7 the scheduling order that will follow this Order, the Court will bifurcate this action. In the first stage

8 of the litigation, the Court will examine whether or not there was a policy or action ratified by a

9 qualified Seattle government decision maker that makes liability imputable to the municipal

10 Defendants in this matter. In the first stage, the Court will also determine the common facts of

11 Plaintiffs’ arrests, if such common facts exist. These are determinations that should be made

12 uniformly in the case of each Plaintiff and making them within the vehicle of the class action serves

13 the interests of judicial economy. If this action survives to the second stage of the litigation, the

14 Court will then make individualized damages determinations regarding whether or not each

15 individual’s rights were actually violated on December 1, 1999, and to what extent. See e.g.

16 Maneely, 208 F.R.D. 69.

17

Having addressed the issues that Defendants raise, the Court will also address the four factors

18 set forth in Fed. R. Civ. P. 23(b)(3). In this matter, Plaintiffs will likely be more interested in

19 pursuing this matter as a class, rather than individually, because the damages in this case will likely

20 not be high enough to warrant each individual pursuing a case on his or her own. Second, there have

21 been several other permutations of the WTO litigation, in addition to this matter and the Menotti

22 case. Because Plaintiffs have been tied up in this litigation since 2000, they may have missed their

23 chance to join other cases and this Court should hear these Plaintiffs’ claims. Regarding the

24 appropriateness of the forum, the Western District of Washington is appropriate because it is where

25 the events occurred, it is the locus of the Seattle municipal government, and many Plaintiffs still reside

26 here. Additionally, this case has been proceeding in this Court since 2000. Finally, as to the

ORDER - 13

Case 2:00-cv-01672-MJP Document 303 Filed 06/05/06 Page 14 of 14

1 difficulties in class management, these challenges can be addressed by allowing more discovery early

2 on in this case, so that the validity of named Plaintiffs’ cases can be evaluated, and by bifurcating the

3 trial in this case so that common issues are addressed in the liability stage and individual issues are

4 addressed in the damages stage. Having considered Defendants objections to class certification, as

5 well as the four areas for inquiry under 23(b)(3), this Court finds that the proposed class action

6 satisfies both the predominance and superiority requirements.

7

CONCLUSION

8

The Court hereby CERTIFIES a third class in this matter to include:

9

all individuals arrested between 6 a.m. and 12 p.m. on December 1, 1999, in Seattle,

Washington, in Westlake Park, or on the streets or sidewalks on Fourth Avenue,

10

between Pike Street and Pine Street, or on Pike or Pine Streets between Fourth and

Fifth Avenues.

11 The Court will grant an additional ninety days of discovery in this matter. This case shall be

12 bifurcated. The liability stage of this case shall proceed first. During the first stage, the Court will

13 also determine if any common facts exist regarding Plaintiffs’ arrests. If the case survives, then the

14 Court will address the damages issues as to each individual Plaintiff separately. A scheduling order

15 will follow that reflects these decisions. The parties should not agree to modify this scheduling order

16 without approval by the Court. Finally, the Court STRIKES Defendant’s late-filed surreply for being

17 out of conformity with the local rules.

18 The Clerk is directed to send copies of this order to all counsel of record.

19

Dated this 5th day of June, 2006.

20

21

A

22

Marsha J. Pechman

United States District Judge 23

24

25

26

ORDER - 14

 
 Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 1 of 20

1

2

3

4

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

5

AT SEATTLE

6

7 ROBERT HICKEY, et al.,

8

Plaintiffs,

9 v.

10 THE CITY OF SEATTLE, et al.,

11

Defendants.

12

No. C00-1672MJP
ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

13

This matter comes before the Court on Plaintiffs’ Motion for Partial Summary Judgment (Dkt.

14 No. 328) and Defendant’s Motion for Summary Judgment Dismissal. (Dkt. No. 332). Having

15 reviewed the parties’ briefs, and the documents submitted in support thereof, and having heard oral

16 argument on the issues, the Court GRANTS Plaintiffs’ motion for summary judgment on the issue of

17 probable cause and DENIES Defendants’ motion for summary judgment dismissal. The Court also

18 DENIES Defendant’s motion to strike.

19

BACKGROUND FACTS

20

This matter arises from arrests made on the morning of December 1, 1999, during anti-World

21 Trade Organization (WTO) protests in Seattle, Washington.1 At the time of the arrests, much of

22 downtown Seattle, including Westlake Park, had just been declared off-limits to individuals who did

23 not meet certain exceptions. In the early morning hours of December 1, 1999, then-Mayor Paul

24

25

1

Many of the facts surrounding the ministerial conference of the WTO in Seattle, the

26 protests during the week of the conference, and various police actions during those protests have been

outlined by the Court in previous Orders. (See Dkt. No. 184, 303).

ORDER - 1

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 2 of 20

1 Schell issued Emergency Order No. 3, which imposed a limited curfew in downtown Seattle. Order

2 No. 3 stated, in relevant part:

3

A limited curfew is imposed in the portion of the City within the following boundaries:

Starting on the corner of 4th Avenue and Lenora Street, then proceeding south on 4th

4

Avenue to Seneca Street, then east on Seneca Street to the I-5 freeway, then north along

the I-5 freeway to Boren Avenue, then north on Boren Avenue to Pine Street, then west

5

on Pine Street to 6th Avenue, then north on 6th Avenue to Lenora Street, then west on

Lenora Street to, and concluding at, 4th Avenue and Lenora . . . .

6 Commencing immediately on December 1, 1999, no person shall enter or remain in a

7

public place as defined in SMC 15.02.046C within the above described limited curfew

area except the following:

8 Delegates and personnel authorized by the WTO to participate in official WTO functions;

9 Employees and owners of businesses within the limited curfew area and other personnel

10

necessary to the operation of those businesses;

11

Persons who reside within the limited curfew area;

12

Representative of the press with proper credentials;

13

City officials with valid identification;

14

Emergency and public safety personnel.

15 (Cobb Decl. at 2, Exh. C). The City interpreted “other personnel necessary to the operation of those

16 businesses” broadly to include shoppers. (Weaver Decl., Exh. W (Schell Decl.)).

17

A few hours after the mayor issued Order No. 3, police arrested approximately 200 people in

18 Westlake Park. Some of the facts surrounding the arrests are in dispute. Plaintiffs assert that the 200

19 or so individuals arrested in Westlake Park had arrived under varying circumstances. Plaintiffs

20 provided evidence that some people arrived in Westlake Park after marching from Denny Park

21 (Weaver Decl., Exh. D (Cooper Decl.)), that some joined the march in downtown Seattle (Weaver

22 Decl., Exh. G (Haim Decl.)), that some walked to Westlake Park without being part of any march

23 (Weaver Decl., Exh. I (Worden Decl.)), and that at least one was a credentialed member of the media

24 who was documenting the arrest when police forced her to join the other arrestees. (Weaver Decl.,

25 Exh. J (Schuerholz Decl.) at 49:18 - 53:12 and 62:17 - 64:18). But the City argues, and has

26 presented evidence suggesting, that all of the individuals arrested arrived in Westlake Park as a group

ORDER - 2

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 3 of 20

1 after marching from a different area of downtown Seattle. (Def. Resp. to Plaintiff’s Motion at 4;

2 Pugel Decl. ¶ 5-7). It is therefore unclear how all of the individuals eventually arrested in Westlake

3 Park arrived there.

4

Many of the individuals arrested sat after entering Westlake Park. But it is unclear whether

5 the arrestees sat before or after police surrounded them in Westlake Park. Then-Captain James Pugel

6 stated in his declaration that “[m]any in the crowd . . . worked their way to Westlake Park, where

7 they sat down. . . . I ordered officers to surround those protestors that would not leave and they were

8 eventually arrested.” (Pugel Decl. ¶ 7). Moreover, Lieutenant Dan Whelan’s incident report states

9 that “as the crowd entered the park they started telling one another to sit down.” (Weaver Decl., Exh.

10 C). But that evidence conflicts with the City’s own briefing, in which the City states that “the class

11 sat down - many with arms linked - after police surrounded them” (Def. Resp. at 2) as well as the

12 declarations of individuals arrested who state that they sat after police surrounded them. (See Weaver

13 Decl., Exhs. D ¶ 7, E ¶ 7, F ¶ 12, G ¶ 8, H ¶ 11, I ¶ 7).

14

Finally, there is conflicting evidence about whether an order to disperse was ever given to the

15 group of individuals marching towards Westlake Park.2 Captain Pugel stated in his declaration that

16 orders to disperse were given to a group of people as they approached Westlake Park. (Pugel Decl. ¶

17 6). But the individuals arrested who were a part of the march headed towards Westlake Park stated

18 that they never heard any order to disperse before reaching the park. (Weaver Decl., Exhs. D ¶ 4, E ¶

19 4, F ¶ 14).

20

Nevertheless, the following important material facts are not in dispute. Officers surrounded a

21 large group of individuals in Westlake Park in the morning of December 1, 1999. The officers

22 arrested every individual within the police perimeter without identifying whether they fell within any

23 of the exceptions in Order No. 3. No order to disperse was given to the individuals in Westlake Park

24 before police arrested them. No photographs were taken of the arrestees as they were arrested.

25

26

2

The City conceded at oral argument that no dispersal order was ever given to individuals

in Westlake Park.

ORDER - 3

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 4 of 20

1 After the individuals were arrested, they were placed on buses and driven to Sandpoint Naval Station,

2 where some remained for up to three days.

3

Moreover, Plaintiffs have identified147 arrest records that indicate the person was arrested at

4 Westlake Park on the morning of December 1, 1999.3 All 147 arrest records contain either no

5 description of the basis for arrest or contain an identical, photocopied description of the arrest that

6 states:

7

LT. WHELAN GAVE ORDERS TO DISBURSE [sic] FROM WESTLAKE PARK.

8

ALL REFUSED TO LEAVE AND WERE BLOCKING THE SIDEWALKS.

9

NO PHOTO TAKEN IN FIELD DUE TO NUMBER OF ARRESTEES

10

REFUSED TO GET OFF TRANSPORT BUS AT SANDPOINT PRISONER

PROCESSING STATION

11 (Weaver Decl., Exh. P, Q-T). It is undisputed that these photocopied arrest records are false

12 because, among other things, Lt. Whelan never gave an order to disperse from Westlake Park.

13 (Weaver Decl., Exh. A (Whelan Dep.)). Plaintiffs also assert, and the City does not dispute, that all

14 of the individuals with Westlake Park arrest records were charged with Pedestrian Interference and

15 Obstructing a Public Officer. A few of the class members were also charged with Failure to Disperse.

16 One person was additionally charged with a Curfew Violation. (Weaver Decl., Exh. P).

17 PROCEDURAL HISTORY

18 As the Court explained in the Order Granting Plaintiffs’ Motion for Class Certification, the

19 procedural history of this case is quite convoluted. (See Dkt. No. 303). This case was originally filed

20 before Judge Rothstein in this Court on October 2, 2000. This action was filed on behalf of a broad

21 group of people arrested during the enforcement of Order No. 3 on December 1, 1999. Early in the

22 case, Plaintiffs filed a first motion for class certification for a comprehensive class involving all people

23 arrested in the downtown area on that day. This motion for class certification became moot and was

24

25

26

3

The City does not dispute this fact.

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1 denied after a series of summary judgment rulings by Judge Rothstein. The Ninth Circuit denied an

2 interlocutory appeal.

3

In the meantime, the Plaintiffs sought to certify a second class before Judge Rothstein. This

4 second class included people allegedly “herded” by police into an area around First Avenue and

5 Broad Street, which was outside of the restricted zone, and arrested. Plaintiffs Hickey and Jackson

6 were the named Plaintiffs for this second class. The Order certifying the second class also entered

7 final judgment in the cases of five of the original named Plaintiffs (Kenneth Hankin, Jennifer Hudziec,

8 Stephanie Lane, Denise Cooper, and Nicole Pearson), whose entire claims became moot in light of

9 Judge Rothstein’s summary judgment rulings. These five Plaintiffs joined the appeal in the related

10 Menotti v. City of Seattle case (C00-372BJR), which was then before the Ninth Circuit.

11

On August 19, 2003, the Hickey case was transferred to Judge Pechman. (Dkt. No. 135). On

12 December 29, 2003, the Court issued an Order regarding the parties’ cross motions for summary

13 judgment as to the second class. (Dkt. No. 184). In this Order, Judge Pechman granted in part and

14 denied in part the parties’ motions, finding issues of fact for trial regarding ratification of the police

15 officers’ actions by people with final policymaking authority and liability and concluding that the City

16 had not met its burden of showing that individualized probable cause existed to arrest the class. On

17 July 15, 2004, Judge Pechman approved a final class settlement as to the second class and dismissed

18 the claims of Hickey and Jackson and the class represented by them. (Dkt. No. 248).

19

On June 2, 2005, the Ninth Circuit issued its opinion in the Menotti case, which affirmed

20 Judge Rothstein’s dismissal of Plaintiffs’ facial challenge to the constitutionality of Emergency Order

21 No. 3, but remanded the case for further proceedings as to the constitutionality of the order as

22 applied to Plaintiffs. Menotti v. City of Seattle, 409 F. 3d 1113, 1148 (9th Cir. 2005). The Menotti

23 court determined that Plaintiffs had raised genuine issues of material fact requiring trial as to whether

24 “it was the policy of the City to apply Order No. 3 in a manner that excluded only anti-WTO

25 protestors.” Id. at 1148. The court found there to be genuine issues of material fact regarding both

26 whether the Westlake Park arrests resulted from “discriminatory enforcement of a speech restriction

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 6 of 20

1 amounting to viewpoint discrimination in violation of the First Amendment,” id. at 1147, and whether

2 that viewpoint reflected a City policy. Id. at 1148 & n.67. The court thus reversed the decision of the

3 district court and remanded for trial on the as-applied constitutional challenge.

4

The Menotti court also reversed Judge Rothstein’s order denying class certification and

5 remanded that issue to the district court for reconsideration. Id. at 1148. The five Plaintiffs from this

6 action requested to have the remainder of their case proceed separately from the remand in the

7 Menotti case, because they claimed that Menotti is much closer to trial than this case. (See Joint

8 Status Report, Dkt. No. 259). On May 17, 2006, pursuant to a joint stipulation, Plaintiffs filed a

9 Second Amended Complaint that alleged claims under the federal and state constitutions for false

10 arrest and violations of free speech rights. (Dkt. No. 298-1). On June 5, 2006, this Court granted

11 class certification and defined the class as:

12

All individuals arrested between 6 am and 12 pm on December 1, 1999, in Seattle,

Washington, in Westlake Park, or on the streets or sidewalks on Fourth Avenue, between

13

Pike Street and Pine Street, or on Pike or Pine Streets between Fourth and Fifth Avenues.

14 (Dkt. No. 303).

15

Both parties now move for summary judgment. Plaintiffs move for partial summary judgment

16 on the issue of whether the city had individualized probable cause to arrest the class members. The

17 City has moved for summary judgment on all claims.

18

DISCUSSION

19 I. Summary Judgment Standard

20

This matter comes before the Court on cross motion for summary judgment. Summary

21 judgment is not warranted if a material issue of fact exists for trial. Warren v. City of Carlsbad, 58

22 F.3d 439, 441 (9th Cir. 1995), cert. denied, 516 U.S. 1171 (1996). The underlying facts are viewed

23 in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith

24 Radio Corp., 475 U.S. 574, 587 (1986). “Summary judgment will not lie if . . . the evidence is such

25 that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby,

26 Inc., 477 U.S. 242, 248 (1986). The party moving for summary judgment has the burden to show

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 7 of 20

1 initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co.,

2 398 U.S. 144, 159 (1970). However, once the moving party has met its initial burden, the burden

3 shifts to the nonmoving party to establish the existence of an issue of fact regarding an element

4 essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex

5 Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). To discharge this burden, the nonmoving party

6 cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue for

7 trial. Id. at 324.

8

When the parties file cross-motions for summary judgment, “[t]he court must rule on each

9 party’s motion on an individual and separate basis, determining, for each side, whether a judgment

10 may be entered in accordance with the Rule 56 standard.” Fair Housing Council of Riverside County

11 v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001) (quoting CHARLES ALAN WRIGHT, ET AL.,

12 10A FEDERAL PRACTICE AND PROCEDURE § 2720, at 335-36 (3d ed. 1998)). “In fulfilling its duty to

13 review each cross-motion separately, the court must review the evidence submitted in support of each

14 cross-motion.” Riverside Two, 249 F.3d at 1136.

15

“When the moving party does not bear the ultimate burden of persuasion at trial, the moving

16 party must show that the nonmoving party does not have enough evidence to carry its burden at

17 trial.” Block v. City of Los Angeles, 253 F.3d 410, 416 (9th Cir. 2001).

18 II. Summary Judgment on Issue of Probable Cause

19

“A claim for unlawful arrest is cognizable under § 1983 as a violation of the Fourth

20 Amendment provided that the arrest was made without probable cause or other justification.” Dubner

21 v. City and County of San Francisco, 266 F.3d 959, 964 (9th Cir. 2001). Making out a claim for

22 unlawful arrest involves a burden shifting analysis:

23

Although the plaintiff bears the burden of proof on the issue of unlawful arrest, she can

make a prima facie case simply by showing that the arrest was conducted without

24

a valid warrant. At that point, the burden shifts to the defendant to provide some

evidence that the arresting officers had probable cause for a warrantless arrest. The

25

plaintiff still has the ultimate burden of proof, but the burden of production falls on the

defendant. If the defendant is unable or refuses to come forward with any evidence

26

that the arresting officers had probable cause and the plaintiff’s own testimony does

not establish it, the court should presume the arrest was unlawful.

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 8 of 20
1 Id. at 965 (internal citations omitted). Probable cause exists when “ ‘the facts and circumstances
2 within [the officers’] knowledge and of which they had reasonably trustworthy information were
3 sufficient to warrant a prudent man in believing that the [plaintiff] had committed or was committing
4 an offense.’” Hart v. Parks, 450 F.3d 1059, 1065-66 (9th Cir. 2006) (quoting Bailey v. Newland, 263
5 F.3d 1022, 1031 (9th Cir. 2001) (quoting Beck v. Ohio, 379 U.S. 89, 91 (1964))). “Police must only
6 show that, under the totality of the circumstances, a prudent person would have concluded that there
7 was a fair probability that [the suspect] had committed a crime.” Id. at 1066 (internal quotation marks
8 omitted). A warrantless search or seizure ordinarily must be based on individualized suspicion of
9 wrongdoing. City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000). The Court must piece together
10 the totality of the circumstances known to the officers at the time based on the field arrest report, the
11 officers’ testimony, the plaintiffs’ testimony, and any other undisputed facts. Dubner, 266 F.3d at
12 966; Wash. Mobilization Comm. v. Cullinane, 566 F.2d 107, 121 (D.C. Cir. 1977) (noting that an
13 arrest is presumed invalid if not accompanied by a field arrest form but that the presumption could be
14 rebutted “upon an affirmative showing by [the prosecution] that any particular arrest was based on
15 probable cause”); see also Beck v. Ohio, 379 U.S. 89, 91 (1964) (making clear that focus is on what
16 the officer knew “at the moment the arrest was made”).
17 In this case, all of the arrests were made without a warrant. The City therefore bears the
18 burden of production on the issue of probable cause. Dubner, 266 F.3d at 965.
19 As in the case of the First & Broad plaintiffs, the arrest “documentation in this case is
20 atrocious.” (See Dkt. No. 184 at 19). Each arrest form has the same hand-written, photocopied
21 statement that says: “Lt. Whelan gave orders to disburse [sic] from Westlake Park. All refused to
22 leave and were blocking the sidewalks. No photo taken in field due to number of arrestees. Refused
23 to get off transport bus at Sandpoint Prisoner Processing Station.” These arrest forms are inaccurate
24 for a number of reasons. Lieutenant Whelan stated in deposition that he never gave an order to
25 disperse at Westlake Park and had no knowledge of any such order. (Weaver Decl., Exh. A (Whelan
26 Dep. at 21)). And the City admitted at oral argument that no order to disperse was ever given in
ORDER - 8

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 9 of 20

1 Westlake Park. The video of the arrests submitted by Plaintiffs in support of their motion shows that

2 the class members were seated in the middle of Westlake Park and were not even near the sidewalks.

3 (See Weaver Decl., Ex. L). The video also indicates that many officers were available to help process

4 and photograph arrestees. Like in its previous Order, “the Court wonders how [147] arrestees is

5 such a great number that pictures could not be taken.” And the officer who prepared the arrest

6 records for the class members admitted in deposition that he was not present at the arrest, did not talk

7 to any officer present at the arrests, and did not talk to officers who were at the scene to confirm that

8 the arrest report was accurate. (Weaver Decl., Exh. U (Stephen Dep.), 18:18-19:8, 21:1-24:5, 25:3-

9 35:19, 41:2-42:18). Finally, both Lt. Whelan’s arrest report and then-Captain Pugel’s declaration fail

10 to present any individualized evidence about any of the class members. (See Weaver Decl., Exh. C;

11 Pugel Decl.). The City’s proffered field evidence therefore fails to support individualized probable

12 cause to arrest.

13

Nevertheless, the City argues that its officers had probable cause to arrest the individuals in

14 Westlake Park for failing to obey Order No. 3 because other evidence shows that: (1) the entire class

15 was inside the perimeter of the restricted zone; (2) the class sat down, many with arms linked, after

16 police surrounded them; (3) the police arrested those surrounded; and (4) the class clearly understood

17 that they were violating the order. (Defendant’s Resp. at 2).

18

Plaintiffs argue that the City cannot carry its burden as to the crime of violating a mayoral

19 emergency order because (1) the arresting officers did not investigate whether any of the class

20 members fell under the exceptions to the emergency order, and (2) the City has presented no evidence

21 suggesting that there was probable cause to believe that the class members knew they were violating

22 Order No. 3.

23

Addressing the exceptions issue first, the City has presented no evidence suggesting that

24 officers attempted to determine whether any of the class members fell within any of Order No. 3's

25 exceptions. Instead, the City argues that the law does not require officers to “dispel all possible

26 defenses” or “explore and eliminate every claim of innocence” before making an arrest. The City

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 10 of 20

1 cites Baker v. McCollan and Erdman v. Cochise County for this proposition. In McCollan, the

2 Supreme Court considered whether a sheriff violated a suspect’s due process rights when he executed

3 a facially valid arrest warrant despite the suspect’s (valid) protests of mistaken identity. The Court

4 held that the Constitution does not require “a sheriff executing an arrest warrant . . . to investigate

5 independently every claim of innocence, whether the claim is based on mistaken identity or a defense

6 such as lack of requisite intent.” Baker v. McCollan, 443 U.S. 137, 145-46 (1979). Citing McCollan,

7 Erdman held that the incarceration at issue — where the county had erroneously transferred and

8 detained the plaintiff for a previously adjudicated crime — was constitutional because it occurred

9 pursuant to a facially valid arrest warrant. Erdman v. Cochise County, 926 F.2d 877, 882 (9th Cir.

10 1991). McCollan and Erdman are thus not cases about whether officers had adequate suspicion to

11 support probable cause, but whether officers who did have probable cause (pursuant to valid

12 warrants) needed to investigate, for due process purposes, claims of innocence. These cases are

13 therefore inapposite to the question of whether the law requires that the officers in this case

14 investigated — for purposes of probable cause — whether the class members fell within any of Order

15 No. 3's exceptions.

16

The City also argues that a reasonable officer would have believed that these individuals did

17 not fall within one of the exceptions because they sat down. The City’s argument suggests that

18 “sitting” indicates “protesting.” But Order No. 3 did not prohibit “protestors”; it prohibited anyone

19 except those who fell within the exceptions. It is possible that individuals who fell within the

20 exceptions were also protesting. And while individuals may have sat in an act of protest, they may

21 also have sat because they were scared or because they wanted to communicate to the police that

22 they were not resisting arrest. The City cannot rely on the fact that class members sat to establish

23 that officers knew at the time that class members did not fit within any of Order No. 3's exceptions.

24

Barham v. Ramsey, 434 F.3d 565 (D.C. Cir. 2006), is instructive here. In that case, the D.C.

25 Circuit considered whether police had probable cause to arrest a large group of demonstrators where

26 they believed that some of the demonstrators had committed arrestable offenses. Barham, 434 F.3d

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 11 of 20

1 at 573. The court concluded that the officers could not arrest all demonstrators based on the belief

2 that some had committed a crime; it concluded that the officer who ordered the arrest was not

3 entitled to qualified immunity because he “offered no facts capable of supporting the proposition that

4 [he] had reasonable, particularized grounds to believe every one of the 386 people arrested was

5 observed committing a crime.” Barnham, 434 F.3d at 574.

6

The City argues that Barnham is not applicable here because all of the class members were

7 arrested in the restricted zone. The City’s argument assumes that everyone physically present in the

8 restricted zone was committing a crime. But Order No. 3, which prohibited presence in the

9 downtown core, did not apply to many groups of people, including residents, business owners,

10 employees, and shoppers. People who fell within the exceptions were therefore not committing a

11 crime by being present in the restricted zone. Thus, like in Barnham, without individualized

12 investigation, the officers could not distinguish which of the protestors had committed or were

13 committing arrestable offenses.

14

As Barnham and other cases make clear, individualized suspicion of wrongdoing is required

15 for probable cause. See City of Indianapolis v. Edmond, 531 U.S. 32, 37 (2000); Barnham, 434 F.3d

16 at 573 (“Where the standard is probable cause, a search or seizure of a person must be supported by

17 probable cause particularized with respect to that person.”). Because the officers did not investigate

18 whether any of the class members were shoppers or residents or employees of downtown businesses,

19 they could not have had a reasonable suspicion that each and every class member was prohibited

20 under Order No. 3 from being physically present in the restricted zone.

21

Second, the City cannot meet its burden of showing that the officers had reason to believe that

22 the class members knew they were violating the emergency order. The City argues that the officers

23 had probable cause as to the crime of failing to obey Order No. 3. (Def. Resp. at 7). Order No. 3

24 prohibited any person, except persons who fell within one of the order’s exceptions, from entering or

25 remaining in the limited curfew area. (See Order No. 3, Cobb Decl. at 2, Exh. C). Under Seattle

26 Municipal Code (SMC) 10.02.110, “[i]t is unlawful for anyone to fail or refuse to obey an order

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 12 of 20

1 proclaimed by the Mayor pursuant to the provisions of this chapter.” “Failure to obey” is defined in

2 the Code: “A person is guilty of failure to obey the Mayor’s emergency order when he or she

3 knowingly violates any order issued under SMC 10.02.010 or 10.02.020.” SMC 12A.26.040

4 (emphasis added). It is undisputed that Order No. 3 was a mayoral emergency order issued under the

5 Code. Thus, a person committed the crime of failing to obey Order No. 3 if she (a) actually violated

6 the order and (b) had knowledge, when she entered or remained in the restricted zone, that she was

7 violating the order.

8

Even though the operative ordinance requires a knowing violation of the order, the City

9 argues that it does not need to provide evidence showing that officers knew that the class members

10 knew they were violating the order. The City rests its argument on the propositions that “probable

11 cause does not require a showing of any specific claimant’s mens rea”, (Resp. at 6), and that

12 ignorance of the law is not a defense.

13

But in a case like this one, where the crime is defined as requiring a “knowing violation”, “the

14 arresting officer must have probable cause for that element in order to reasonably believe that a crime

15 has occurred.” See Easyriders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1499 (9th Cir. 1996).

16 In Easyriders, the Ninth Circuit considered whether officers had probable cause when they issued

17 citations to motorcyclists with non-conforming helmets without inquiring whether the motorcyclists

18 knew that their helmets were not in compliance with the helmet law. The applicable helmet law

19 provided that a rider was in violation of the helmet law if (a) his helmet did not bear a federal

20 certification sticker or (b) the helmet did bear a certification sticker but did not conform to federal

21 safety standards and the person being cited had actual knowledge of the non-conformity with federal

22 standards. Id. at 1492, 1499. The court noted the general rule that “an officer need not have probable

23 cause for every element of the offense.” Id. at 1499. But the court concluded that “when specific

24 intent is a required element of the offense, the arresting officer must have probable cause for that

25 element in order to reasonably believe that a crime has occurred.” Id. Thus the court concluded that

26 the California Highway Patrol “must have specific probable cause to believe that a motorcyclist has

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 13 of 20

1 actual knowledge of a helmet’s non-compliance to cite that motorcyclist for violating the helmet

2 law.” Id.

3

Likewise, the Seattle officers must have had “specific probable cause to believe that” class

4 members had “actual knowledge” of their non-compliance with Order No. 3. See Easyriders, 92 F.3d

5 at 1499. The City argues that two of the named plaintiffs and one of the class members now “admit

6 that they knowingly entered the restricted area aware that by so entering they were violating the

7 terms of the Order.” (Def. Resp. at 4). But that fact is irrelevant because the focus of the probable

8 cause inquiry is what the officers knew or believed at the time of the arrest. See Beck v. Ohio, 379

9 U.S. 89, 91 (1964). Whether or not some of the class members knew about the emergency order or

10 knew they were violating it does not answer the question of whether the officers believed that the

11 class members knew they were violating Order No. 3.

12

Because the City has not pointed to any evidence indicating that the arresting officers had

13 knowledge or a belief at the time of the arrests that class members had knowledge of Order No. 3 or

14 knowledge of their violation of that emergency order, the City cannot carry its burden as to probable

15 cause.

16

The Court notes that the City’s probable cause argument would be much stronger had the

17 officers given an order to disperse at Westlake Park before arresting the class. See Barnham, 434

18 F.3d at 575 (“[W]hen compelling circumstances are present, the police may be justified in detaining

19 an undifferentiated crowd of protestors, but only after providing a lawful order to disperse followed

20 by a reasonable opportunity to comply with that order.”); Cullinane, 566 F.2d at 121 (“If all members

21 of a group are arrested the prosecutor may well be able to prove, by the testimony of policemen who

22 were at the scene, that there was probable cause to believe that the group as a whole was violating

23 the law . . . by remaining on the scene after reasonable notice and opportunity to disperse.”); Jackson

24 v. City of Seattle, Case No. 05-2034JLR at 5:26-27 (W.D. Wash., Oct. 20, 2006) (concluding that

25 officers did not have probable cause to arrest man for violating criminal trespass statute which

26 required knowledge of unlawful entry without giving him a prior warning or opportunity to explain

ORDER - 13

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 14 of 20

1 his presence); see also Paff v. Kaltenback, 204 F.3d 425, 437 (3d Cir. 2000) (“Absent a confession,

2 the officer considering the probable cause issue in the context of a crime requiring a mens rea on the

3 part of the suspect will always be required to rely on circumstantial evidence regarding the state of his

4 or her mind. Ordinarily, information supporting a conclusion that the potential defendant in a trespass

5 case was not licensed or privileged and that he was so advised by the custodian of the property will

6 provide sufficient circumstantial evidence to constitute probable cause on the mens rea element.”).

7 Had the arresting officers given an order to disperse that explained the content of the mayoral

8 emergency order, and had the class members remained in Westlake Park, the officers would have had

9 circumstantial evidence supporting an individualized suspicion that each of the remaining class

10 members were not permitted in the restricted zone and were knowledgeable about their violation.

11

Moreover, the municipal code requires the mayor to communicate the content of any

12 emergency order to the governor, news media, and the public:

13

The Mayor shall cause each proclamation or order issued by him pursuant to the authority

of this chapter to be delivered to the Governor of the state and, to the extent practicable,

14

to all news media within the City, and shall utilize as many other available means,

including, but not limited to, posting on public facilities and public address systems, as

15

may be practical to use, in order to give the widest dissemination of such proclamations

and orders to the public.

16 SMC 10.02.100. The City has pointed to no evidence suggesting that it complied with SMC

17 10.02.100 on the morning of December 1, 1999. Had the City communicated to the class the content

18 of Order No. 3 by posting the order in and around Westlake Park, the officers would have had a

19 reasonable belief that the class members had knowledge of their violation.

20 And the Court notes that the crime — failure to obey — presumes that a suspect is given an

21 opportunity to obey. Without being informed by the officers of the content of Order No. 3, the

22 arrestees were not given a reasonable opportunity to obey the mayoral order.

23 Finally, the Court concludes that Menotti left open the question of whether there was

24 probable cause to arrest these individual plaintiffs. The City argues that the Menotti decision

25 forecloses Plaintiffs’ probable cause argument because the Menotti court found that officers had

26 probable cause to arrest another plaintiff — Mr. Skove — because “by engaging in protest inside the

ORDER - 14

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 15 of 20

1 restricted zone without evidence that he was exempt, Skove had violated Order No. 3.” Menotti, 409

2 F.3d at 1153. But the City ignores a key fact about the officer’s stop of Mr. Skove: as the City

3 explained in its brief to the Ninth Circuit in Menotti, an officer contacted Mr. Skove on December 2,

4 1999, as he entered the restricted zone and communicated to him the content of the emergency order.

5 Mr. Skove responded that he did not “take orders from Mayor Schell.” (Defendant’s Response to

6 Appellant’s Opening Brief at 59). Given Mr. Skove’s response, the Ninth Circuit understandably

7 concluded that Mr. Skove was not exempt from the emergency order. But the facts surrounding the

8 arrests of these class members are distinguishable. Because probable cause is an individualized

9 inquiry, the Menotti court’s discussion of a different individual who was stopped by different officers

10 on a different day is inapposite to whether officers had individualized suspicion of wrongdoing as to

11 Plaintiffs.

12

In summary, the Court disagrees with the City that class members’ mere presence in Westlake

13 Park while protesting provided officers with probable cause to arrest. To conclude otherwise would

14 erode the Fourth Amendment’s fundamental requirement that searches and seizures be based on

15 individualized suspicion of wrongdoing. See Edmond, 531 U.S. at 37. Because these basic

16 protections are not suspended during mass protest situations, see Barnham, 434 F.3d at 573, and

17 Sullivan v. Murphy, 478 F.2d 938, 966-67 (D.C. Cir. 1973), and because the City has not shown that

18 it has any evidence suggesting that officers knew whether Plaintiffs were exempted from Order No. 3

19 or that officers knew that Plaintiffs knew they were violating the Order, the Court concludes that the

20 officers did not have individualized probable cause to arrest the class members. The Court therefore

21 GRANTS Plaintiffs’ motion for partial summary judgment on the issue of probable cause.

22

The Court also grants summary judgment as to whether the officers had probable cause

23 regarding the crimes of failure to disperse and pedestrian interference. Because the City never gave

24 an order to disperse at Westlake Park, the City cannot carry its burden as to the crime of failure to

25 disperse. Moreover, by not arguing in its opposition that officers had probable cause to arrest the

26 class for violating Seattle’s pedestrian interference ordinance, the City has abandoned any claim that

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Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 16 of 20

1 the class was properly arrested for that crime. And even if it had preserved this argument, the City

2 has not presented any evidence even suggesting that class members were intentionally obstructing

3 pedestrian or vehicular traffic when they were seated in Westlake Park. See SMC 12A.12.015(B).

4 II. Claim of City Policy of Viewpoint Discrimination

5

The City has moved for summary judgment on Plaintiffs’ as-applied constitutional challenge.

6 Specifically, the City argues that Plaintiffs cannot point to any evidence that shows that the class was

7 arrested because of an anti-WTO message or that any such viewpoint discrimination was based on a

8 City policy specifically discriminating against anti-WTO protestors. (Def. Mot. at 3, 14). But, in

9 remanding this case, the Ninth Circuit held that there were genuine issues of material fact regarding

10 both of these issues. Menotti, 409 F.3d at 1148. As to the issue of whether the arrests were the

11 product of viewpoint discrimination, the Ninth Circuit determined that Plaintiffs had raised genuine

12 issues requiring trial. Considering Ken Hankin’s testimony, in which he testified that he and others

13 were arrested without warning or any determination of whether they fell within any of Order No. 3's

14 exceptions, the court concluded that “Hankin’s testimony is evidence that the arrest of this group of

15 persons was a ‘discriminatory enforcement of a speech restriction amounting to viewpoint

16 discrimination in violation of the First Amendment.’ ” Menotti, 409 F.3d at 1146-47 (quoting Foti v.

17 City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998)). The court also stated that “viewing the

18 evidence in the light most favorable to Appellants, in some instances police conduct may have gone

19 too far and infringed certain individual protestors’ constitutional rights by making the content of their

20 expressed views the test for their entry into the restricted zone.” Id. at 1156. Thus, the Ninth Circuit

21 held that a trial was necessary to resolve the fact issues regarding viewpoint discrimination.

22

As to the issue of whether the City had a policy of viewpoint discrimination, the court stated:

23

The statements of Assistant Chief Joiner and the declarants, taken in the light most

favorable to Appellants, create a genuine issue of material fact as to whether it was the

24

policy of the city to apply Order No. 3 in a manner that excluded only anti-WTO

protestors. Viewing the evidence in the light most favorable to the Hankin plaintiffs,

25

such a policy may be inferred due to the widespread practices or evidence of repeated

constitutional violations and the absence of evidence that police officers were

26

discharged or reprimanded for making the discard of anti-WTO expressive materials

an entry ticket to the restricted zone.

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1 Menotti, 409 F.3d at 1148 (internal quotation marks omitted). Thus the court “reverse[d] the district
2 court’s grant of summary judgment to the City on the constitutionality of Order No. 3 as applied to
3 the Hankin plaintiffs, and . . . remand[ed] this issue for trial.” Id.; see also id. at 1156 (“We reverse
4 and remand to the district court the Hankin plaintiffs’ as-applied challenge to Order No. 3, as well as
5 the issue of class certification. . . . On the record before us, we conclude that trial of disputed facts is
6 necessary on the claims for which we reverse and remand.”). Thus, the Menotti court identified
7 genuine issues of material fact regarding whether the City had a policy of only applying Order No. 3
8 to anti-WTO protestors.
9 Because the Ninth Circuit has already ruled that Plaintiffs have raised enough fact issues to
10 survive summary judgment, the Court will not consider the City’s argument that Plaintiffs cannot
11 meet their burden of showing a City policy of viewpoint discrimination. See Richardson v. United
12 States, 841 F.2d 993, 996 (9th Cir. 1988) (“Under the law of the case doctrine, a court is ordinarily
13 precluded from reexamining an issue previously decided by the same court, or a higher court, in the
14 same case.” (internal quotation marks and citations omitted)). The City’s motion in this regard is
15 therefore DENIED.
16 III. Claim Under Washington State Constitution
17 The parties dispute whether any claims under the Washington State Constitution remain.
18 Plaintiffs’ Second Amended Complaint alleges claims for false arrest and violation of constitutional
19 rights under the Washington State Constitution. But as the City points out, the Ninth Circuit did not
20 remand Plaintiffs’ as-applied challenge under the state constitution. Although Judge Rothstein ruled
21 on the state claims, (Dkt. No. 77) and although Plaintiffs raised the as-applied issue to the Ninth
22 Circuit, (see Plaintiffs’ Opening Brief to the Ninth Circuit at 1), the Ninth Circuit “view[ed] [the
23 state] claims as a facial challenge” and concluded that the district court correctly dismissed Plaintiffs’
24 challenge to the validity of Order No. 3 under the Washington State Constitution. Menotti, 409 F.3d
25 at 1143 n.57.
26
ORDER - 17

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 18 of 20

1

The City argues that because the Ninth Circuit did not address the as-applied state claims and

2 because no state claims have been remanded, Judge Rothstein’s order dismissing the as-applied claims

3 under the state constitution stands. Under the law of the case doctrine, “on remand a lower court is

4 bound to follow the appellate court’s decision as to issues ‘decided explicitly or by necessary

5 implication.’ ” United States v. Garcia-Beltran, 443 F.3d 1126, 1129 (9th Cir. 2005) (quoting Liberty

6 Mut. Ins. Co. v. EEOC, 691 F.2d 438, 441 (9th Cir. 1982)). In Liberty, the Ninth Circuit addressed

7 the application of the law of the case doctrine to a situation where the appellate court was silent as to

8 an appealed issue:

9

Although in its previous appeal the state contested the district court’s denial of costs,

our prior disposition awarded the state only its costs on appeal. The disposition was

10

completely silent as to the issue of costs in the district court. Liberty argues that this

silence amounts to an implicit denial of costs in the district court. There is no reason,

11

however, why our earlier silence did not simply leave the matter of costs open for

consideration by the district court on remand. See Perkins v. Standard Oil of

12

California, 399 U.S. 222, 223, 90 S. Ct. 1989, 1990, 26 L. Ed. 2d 534, 536 (1970)

(per curiam) (“Our failure to make explicit mention in the mandate of attorneys’ fees

13

simply left the matter open for consideration by the District Court, to which the

mandate was directed.”). Thus, we hold that the law of the case did not require the

14

district court to grant Liberty’s [request that it deny a cost award].

15 Liberty, 691 F.2d at 441-42. The situation here is very similar to that in Liberty. Here, Judge

16 Rothstein dismissed the as-applied claim under the state constitution, Plaintiffs raised the issue in their

17 appeal to the Ninth Circuit, and the Ninth Circuit remanded the federal as-applied challenge but did

18 not mention the state as-applied challenge.4 Under Liberty, the Court interprets the Menotti court’s

19 silence as “simply leav[ing] the matter . . . open for consideration by the district court on remand.”

20 Liberty, 691 F.2d at 441. The Court therefore DENIES Defendant’s request that the Court dismiss

21 Plaintiffs’ as-applied challenge under the Washington State Constitution.

22

23

24

4

The Menotti court stated that it viewed the claims under the Washington State

25 Constitution “as a facial challenge.” Menotti, 409 F.3d at 1143 n.57. The one footnote in which the state

claims are mentioned is in the section dealing with the facial challenge. See id. at 1143. The Court does 26 not believe that the Ninth Circuit was also addressing Plaintiffs’ as-applied challenge as part of the facial

challenge.

ORDER - 18

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 19 of 20

1 IV. Motion to Strike

2

Finally, the City argues in its Reply that the Court should strike Plaintiffs’ Response as

3 overlength. In an earlier order, the Court granted Plaintiffs leave to file an overlength brief based on

4 Plaintiffs’ assertion that they could not adequately discuss all of the factual issues raised in

5 Defendant’s motion in the standard twenty-four pages. (Dkt. No. 339). The City argues that

6 Plaintiffs did not use the extra length for the reason requested, and that they use smaller font and

7 spacing than is typical. In a Surreply, Plaintiffs respond that they used the extra space to incorporate

8 the myriad facts into the body of the Response as opposed to writing a lengthy statement of facts.

9 (Dkt. No. 353-1).

10

The Court declines to strike Plaintiffs’ Response. The document contains ample fact

11 recitations, and it is not material that those recitations were not incorporated in a “fact” section.

12 Moreover, Plaintiffs state that their brief uses 12-point font and the “exactly 24 point” spacing.

13 (Weaver Decl. ¶ 4). Because no rule requires a certain font size or spacing, because Plaintiffs have

14 stated that they used a typical spacing and font size, and because Plaintiffs’ Response incorporates

15 substantial factual recitations, the Court DENIES Defendant’s motion to strike.

16

CONCLUSION

17

Because the City cannot carry its burden to show that the arresting officers had individualized

18 suspicion of wrongdoing on the part of the class, the Court GRANTS Plaintiffs’ motion for partial

19 summary judgment on the issue of probable cause. And because the Menotti court specifically

20 remanded for trial on the issue of whether it was the policy of the City to apply Order No. 3 in a

21 manner that excluded only anti-WTO protestors, the Court DENIES Defendant’s motion for

22 summary judgment on Plaintiffs’ as-applied challenge to Order No. 3. The Court also DENIES

23 Defendant’s motion for summary judgment as to the state constitutional claim. And the Court

24 DENIES Defendant’s motion to strike.

25

This case is scheduled for trial beginning January 8, 2007. As the Court stated at oral

26 argument, the Court questions whether, given the Court’s conclusion on the probable cause issue, any

ORDER - 19

Case 2:00-cv-01672-MJP Document 365 Filed 12/13/2006 Page 20 of 20

1 issues remain for trial on the liability portion of the case. As the Court asked the parties at oral

2 argument, “what damages flow from Plaintiffs’ First Amendment claims that would not be recovered

3 through the false arrest claims?” The Court requests that the parties provide the Court with briefing

4 on this issue by noon on Monday, December 18, 2006. The briefs may be no longer than six (6)

5 pages in length, and no responses will be permitted.

6

Dated this 13th day of December, 2006.

7

8 9

A

Marsha J. Pechman

10

United States District Judge

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

ORDER - 20

 
 Case 2:00-cv-01672-MJP Document 505 Filed 10/26/07 Page 1 of 3 Case 2:00-cv-01672-MJP Document 496-2 Filed 10/11/2007 Page 1 of 3

!:.tH£R£1l
c ---zI~fl GDED -_ D..lCf.WED
11 , 1001
3

The Honorable Marsha Pechrnan
lllllllllllllllllllllllliliiHIIIIIII/IIlllll 11111111 11/llllllll/11111/lllllllllllll/

00-CV-01672-RCPT

6

-- -- ~/

7

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 KENNE1H HANKIN, JENNIFER HUDZIEC,
10 STEPHANIE LANE, and DENISE COOPER, on behalf of themselves and all others similarly
11 situated,

12

Plaintiffs,

13

v.

14 THE CITY OF SEATILE, a municipality,

No. C00-1672P
WR~D]ORDERGRANTING
FINAL APPROVAL OF CLASS SETTLEMENT AND DISMISSING THE CLAIMS OF THE PLAINTIFFS AND CLASS MEMBERS

15

Defendant.

16

17

18

1HIS MATTER came before the Court on October 26, 2007, pursuant to proper notice

19 for determination, to determine whether the Court should approve the proposed settlement set

20 forth in the Settlement Agreement dated April24, 2007 (the "Settlement Agreement"). The

21 Court has considered Plaintiffs' Motion for Final Approval and the exhibits attached thereto, and

22 all the papers filed and proceedings herein. The Court has determined that the Settlement should

23 be approved as fair, reasonable, and adequate and hereby orders this final order, which

24 constitutes a fmal adjudication of this matter on the merits as to Plaintiffs Kenneth Hankin,

25 Jennifer Hudziec, Stephanie Lane and Denise Cooper, and the Class they represent. The Court

26 hereby ORDERS that:

[PROPOSED] ORDERGRANTING FINAL APPROVAL OF CLASS SETILE¥ENT

-I -

Hagens Berman Sobol Shapiro LLP
1301 Flrni AVENI!E, SUITE 2900•SEATTU!, WA !13101 TELEPHONE (206) 623-7292 • FACSIMILE (206) 623·0594

Case 2:00-cv-01672-MJP Document 505 Filed 10/26/07 Page 2 of 3 Case 2:00-cv-01672-MJP Document 496-2 Filed 10/11/2007 Page 2 of3

1

1. The Court has subject matter jurisdiction over the parties.

2

2. All defined terms contained herein shall have the same meanings as set forth in

3 the Settlement Agreement. In particular, the term "Class" shall have the meaning ascribed to it

4 in paragraph 1.f. of the Settlement Agreement, and this order shall not be construed as having

5 any affect on the rights, claims, or appeals of anyone who is not amember of the Class.

6

3. The Court hereby approves the settlement and finds that the settlement is fair,

7 reasonable, and adequate in all respects.

8

4. Plaintiffs' counsel shall deduct the amount awarded for attorneys' fees and

9 incentive awards, and then pay settlement awards to all Class Members who return a valid and

10 timely Claim Form, in accordance with paragraphs 6'and 10 of the Settlement Agreement.

11

5. This Court hereby dismisses the claims of Kenneth Hankin, Jennife~ Hudziec,

12 Stephanie Lane and Denise Cooper, and the Class with prejudice. This order does not affect the

13 rights, claims, or appeals of any other Plaintiffs named in the complaint, or any individuals who

14 are not members of the Class,

15

6. The Notice distributed by first-class mail to the Class and the Published Notice,

16 taken together, and along with the electronic notices sent by Plaintiffs' counsel to Class

17 members, constitute the best notice practicable under the circumstances, including individual

18 notice to all members of the Class who could be identified through reasonable efforts. The

19 Notice distributed by first-class mail and the Published Notice, on their own, provided due and

20 adequate notice of these proceedings and of the matters set forth therein, including the

21 settle~ent, to all persons entitled to such notice, and those notices fully satisfied the

22 requirements of Fed. R. Civ. P. 23 and the requirements of due process.

23

7. The Court reserves jurisdiction, without affecting the finality of this judgment,

24 over (a) implementation and administration of the settlement; (b}any dispute between the parties

25 concerning the interpretation, application, or enforcement of the Settlement :"-greement; and

26 (c) any post-final-judgment matters as may be appropriate under court rules.

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS SETTLEMENT

-2-

Hagens Berman Sobol Shapiro LLP
1301 FIFTHAVEHI.II!, SUITE 2900 •SB"'TTL£. WA98\0l TElllPHONE (206)623-7292 •FACSIMILE (206)623~!M

Case 2:00-cv-01672-MJP Document 505 Filed 10/26/07 Page 3 of 3 Case 2:00-cv-01672-MJP Document 496-2 Filed 10/11/2007 Page 3 of 3

1

IT IS SO ORDERED.

2

3

t!Jt/ Dated:

til b

4

..

5

6

United States District Court Judge

7 HAGENS BERMAN SOBOL SHAPIRO LLP 8

9 ByS:tev~e ~~~~

10

Tyler S. Weaver,

No. 29413

1301 Fifth Avenue, Suite 2900 ·

11 Seattle, WA 981 01

(206) 623-7292

12 Lead Counsel for Plaintiffs and the Class

13

14

15

16

17

18

19

20

21

22

23

24

25

26

[PROPOSED] ORDER GRANTING FINAL APPROVAL OF CLASS SETILEMENT

- 3-

Hagens Berman Sobol Shapiro LLP
13(11 FlFnl AVENI!E, SUITE Z!IOO• SEA'IT1£. WA98101 TELEPHONE (2.06) 623-1292 • F ACSlMILE (206}623-0594

 
 Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 1 of 16

1

Honorable Marsha Pechman

2

3

4

5

6

7

UNITED STATES DISTRICT COURT, WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

8

9 ROBERT HICKEY, KENNETH HANKIN, JENNIFER HUDZIEC, STEPHANIE LANE,
10 CARROLL JACKSON, DENISE COOPER, NICOLE PEARSON, and EMILY MALONEY,
11 on behalf of themselves and all others similarly situated,
12
Plaintiffs, 13
v. 14
THE CITY OF SEATTLE, a municipality; 15 PAUL SCHELL, Mayor ofthe City of Seattle;
and NORMAN STAMPER, ChiefofPolice of 16 the City of Seattle,

No. C00-1672 P
SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS

17

Defendants.

18

19

I. NATURE OF THE CASE

20

1. Plaintiffs and the class they seek to represent assembled in downtown Seattle to

21 exercise their democratic rights during the 1999 World Trade Organization Ministerial. They

22 included people from a wide variety of well-known and non-violent movements and concerns,

23 including consumer groups, environmentalists, labor unions, human rights groups, small farmers,

24 and many other organizations aligned with a particular social issue or those who simply wished to

25 observe this exchange of ideas in a public forum. Plaintiffs and the class sought to exercise their

26 rights of assembly and free speech in a variety of fashions: peaceful protest, the exchange of ideas,

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 1-

HAGENS BERMAN SOBOl SHAPIRO UP
1301 FIFTH AVENUE, SUJTE 2900 • SS\TTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 2 of 16

1 silent observation. These rights are the bedrock upon which this country was founded and are

2 among the most precious in our society.

3

2. The World Trade Organization ("WTO") had come to Seattle with the express

4 approval and encouragement of the City, and in particular its Mayor, Paul Schell. Mayor Schell was

5 determined to showcase Seattle to the watching world.

6

3. After witnessing one day of widespread and active, but largely peaceful protest

7 against the WTO, Mayor Schell and his Chief of Police, Norman Stamper, decided that the City's

8 image was being jeopardized, as was the vision they had for how the WTO conference should

9 proceed. Mayor Schell and Police Chief Stamper thus conceived and implemented a course of

10 police action that was designed to suppress and stifle any further protest which might hint of

11 unruliness, or reflect badly on the image of Seattle authorities wanted the world to see.

12

4. Thus, Mayor Schell, with the input and assistance ofPolice Chief Stamper, issued

13 orders and directives aimed at eliminating all demonstrations or "protests" from major portions of

14 downtown Seattle. The policies of Mayor Schell, Police Chief Stamper and the City were intended

15 to create insulated zones inside which no form of unwanted ideological expression would be

16 allowed. These unwanted forms of expression were labeled "protests" and as such were deemed

17 undesirable. Therefore, inside these zones, even the simplest of expressive acts- talking, gathering,

18 and walking- were entirely prohibited by City authorities if exercised by individuals the City

19 deemed undesirable. Reminiscent of what one might expect in repressive societies, all attempts at

20 such activities in these zones, and as it later developed outside those zones as well, were subject to

21 aggressive police harassment and arrest.

22

5. The suppressive "no protest" policies of Mayor Schell, Police Chief Stamper and the

23 City ostensibly empowered their police agents to conduct massive and instantaneous arrests of all

24 individuals who attempted to demonstrate inside, or even physically enter any zone of the City in

25 which such activities were not desired by municipal authorities. These policies eventually became

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

-2-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 fiFfH A\'""EJ•a;F., SUITE 2900 • SF.ATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 3 of 16

1 embodied in Local Proclamation of Civil Emergency Order Number 3 (and subsequent revisions)

2 ("Order Number 3").

3

6. Pursuant to these policies, the defendants engaged in a concerted and illegal effort to

4 stifle free speech and assembly, prohibiting the activities ofboth ideological protestors and citizens

5 who were just using the streets in the course of their daily lives.

6

7. This policy ofrepression included forcible and sometimes violent denials of the rights

7 to assemble, to express ideas, and to petition the government for redress of grievances. It

8 encompassed unreasonable and wrongful seizures of persons and incarceration under inhumane

9 conditions. This course of conduct was summarized in the Seattle City Council's WTO

10 Accountability Review Committee Final Report ("Accountability Report"):

11

Members of the public, including demonstrators, were victims of ill-

conceived and sometimes pointless policy actions to "clear the

12

streets." Police response, particularly on Capitol Hill, was sometimes

out of proportion to the threats faced. Our inquiry found troubling

13

examples of seemingly gratuitous assaults on citizens, including use of

less-lethal weapons like tear gas, pepper gas, rubber bullets, and

14

"beanbag guns," by officers who seemed motivated more by anger or

fear than professional law enforcement. 15

8. In carrying out its oppressive policy, the City of Seattle hunted, accosted and 16

incarcerated hundreds of individuals who had gathered to speak their minds in a public forum. The 17

City's police agents shot unarmed civilians with rubber pellets. They sprayed peaceful civilians with 18

nerve agents such as tear gas and pepper, forcibly handcuffed them, and in some cases violently beat 19

them with clubs. After summarily arresting as many people as they could, the City's police herded 20

them into cramped jail facilities where they were held for as many as 72 hours- often without 21

adequate food, water or space to lie down. In numerous cases, access to legal counsel was denied to 22

those incarcerated. All of these illegal actions were taken pursuant to the dictates and authority of 23

the City itself, its mayor and its Chief of Police.
24

9. This suit is brought as a class action on behalf of all the individuals wrongfully 25

arrested pursuant to the City's extensive "no protest" policies- policies which were ultimately
26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 3-

HAGENS BERMAN SOBOL SHAPIRO LLP
IJOI FIFTH Avr:~LTE, SUITE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 4 of 16

1 embodied in Order Number 3. It seeks to recover damages for those who, pursuant to City

2 directives, were improperly arrested while inside the City's designated "no protest" zones and who

3 were thus forcibly deprived of their right to free speech and assembly under the First Amendment to

4 the United States Constitution, of their right to speak freely under Article 1, Section 5 of the

5 Washington State Constitution, and of their right to freedom from unreasonable search and seizure

6 under the Fourth Amendment to the United States Constitution. The improper arrests of these

7 individuals violated 42 U.S.C. § 1983 (the Civil Rights Act of 1871 ).

8

10. This suit also seeks damages for those individuals who were wrongfully arrested

9 pursuant to the City's "no protest" policies while outside any of the City's actual designated "no

10 protest" zones. These individuals were forcibly deprived of their First Amendment rights to free

11 speech and assembly, and their Article 1, Section 5 right to speak freely. Additionally, these

12 individuals were forcibly deprived of their federal Fourth Amendment right to freedom from

13 unreasonable search and seizure. The improper arrests ofthese individuals violated 42 U.S.C.

14 § 1983 (the Civil Rights Act of 1871 ).

15

II. THE PARTIES

16

11. Former Plaintiff Robert Hickey is a citizen of the United States and a resident ofNew

17 York State. He was arrested by police agents of the City of Seattle on December 1, 1999. Mr.

18 Hickey is a member of the Teamsters Union and is currently working on a Ph.D at Cornell

19 University in Labor Relations. He came to Seattle to express his solidarity with the Steelworkers

20 who were engaged in peaceful demonstrations during the WTO. Mr. Hickey's claims have been

21 resolved via settlement, along with the claims of the class he represented.

22

12. Kenneth Hankin is a citizen of the United States, and a resident of Washington State.

23 He was arrested by police agents of the City of Seattle on December 1, 1999. Mr. Hankin is an

24 advocate of animal rights and environmental concerns. He came to the WTO to exercise his free

25 speech and assembly rights on these and other issues.

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

-4-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 FIFTII AV:ENl'E, SUITE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-11594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 5 of 16

1

13. Jennifer Hudziec is a citizen of the United States and a resident ofNew Hampshire.

2 She was arrested by police agents of the City of Seattle on December 1, 1999. Ms. Hudziec was at

3 the WTO to observe and join in peaceful assembly and speech.

4

14. Stephanie Lane is a citizen ofthe United States and a resident ofNew York state.

5 She was arrested by police agents of the City of Seattle on December 1, 1999 and was illegally

6 incarcerated for four days. Ms. Lane is a resident of Illinois and came to Seattle to observe the WTO

7 demonstrations.

8

15. Former Plaintiff Carroll Jackson is a citizen of the United States and a resident of

9 Washington State. She was arrested by police agents of the City of Seattle on December 1, 1999 and

10 was illegally incarcerated for four days. Ms. Jackson is a 64 year old retired school teacher. She

11 was at the WTO to observe and take photographs of the demonstrations. Ms. Jackson's claims have

12 been resolved via settlement, along with the claims of the class she represented.

13

16. Denise Cooper is a citizen of the United States and a resident ofWashington State.

14 She was arrested by police agents of the City of Seattle on December 1, 1999 and was illegally

15 incarcerated for four days. Ms. Cooper is a student at the University ofWashington. She was at the

16 WTO to voice the concerns of African-Americans and other people of color who are affected by the

17 policies of the WTO.

18

17. Nicole Pearson is a citizen of the United States. She was arrested by police agents of

19 the City of Seattle on December 1, 1999 and was illegally incarcerated for four days. She was at the

20 WTO to voice the concerns of African-Americans and other people of color who are affected by the

21 policies ofthe WTO.

22

18. Former Plaintiff Emily Maloney is a citizen of the United States and a resident of the

23 State of California. She was arrested by police agents of the City of Seattle on December 1, 1999

24 and was illegally incarcerated for over 40 hours. Ms. Maloney is a 68 year old lawyer and was in

25 Seattle December 1, 1999 to exercise her First Amendment right to protest the policies of the WTO.

26 Her claims were resolved via settlement.

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 5-

HAGENS BERMAN SOBOL SHAPIRO llP
1301 fil--m AVE~l:E, SUITE 2900 • SEATTLE, \VA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 6 of 16

1

19. The City of Seattle is a municipal corporation organized under the laws of the State of

2 Washington. The defendant City includes, as one of its agencies, the Seattle Police Department.

3

20. Paul Schell is, and was at all times pertinent to this suit, the Mayor of the City of

4 Seattle, with overall executive and supervisory responsibility for the acts of defendants described

5 herein. At all times material to this complaint, defendant Schell was an agent and employee of the

6 City of Seattle, and was acting within the scope ofhis employment and under color of the laws of the

7 State ofWashington. The claims against Mr. Schell have been dismissed.

8

21. Norman Stamper was, at all times pertinent to this suit, the Chief of Police of the City

9 of Seattle, with executive and supervisory responsibility for the acts of Seattle police officers during

10 all acts of the defendants described herein. He was responsible for the policies, practices and

11 customs of the Seattle Police Department. He possessed final policy-making and decisional

12 authority regarding issues oflaw enforcement, discipline and training within the Police Department.

13 At all times material to this complaint, defendant Stamper was an agent and employee of the City of

14 Seattle, and was acting within the scope ofhis employment and under color of the laws of the State

15 ofWashington. The claims against Mr. Stamper have been dismissed.

16

III. JURISDICTION AND VENUE

17

22. This Court has jurisdiction over the plaintiffs because they are either residents of the

18 State of Washington or submit to jurisdiction in this forum. The Court has jurisdiction over the

19 defendants because they are residents of the State of Washington. This Court has jurisdiction over

20 the subject matter ofthe suit pursuant to 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. The Court has

21 jurisdiction over plaintiffs' state law claims pursuant to 28 U.S.C. § 1337.

22

23. Venue is proper in the Western District ofWashington at Seattle pursuant to 28

23 U.S.C. § 1391(b).

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

-6-

HAGENS BERMAN SOBOL SHAPIRO llP
1]01 fiFTH AVE:-<l'E, SUITE 2900 • SEATTLE, \VA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 7 of 16

1

IV. FACTUAL ALLEGATIONS

2 A. The WTO Comes to Seattle

3

24. Between November 30, 1999, and December 3, 1999, a ministerial conference of the

4 WTO was held in Seattle, Washington. The WTO is an international policy body that according to

5 its charter promotes global trade. The WTO claims authority to impose economic sanctions upon

6 member nations that are at odds with this objective.

7

25. The City of Seattle had actively sought to host the WTO' s 1999 winter ministerial

8 conference. Mayor Schell considered landing the WTO to be a prize for the city and believed it

9 would add to the city's prestige, as well as his own.

10

26. On January 25, 1999, after months ofbehind the scenes solicitation, Mayor Paul

11 Schell announced that the White House had chosen Seattle to be the site of the 1999 WTO

12 Ministerial Conference. Holding the conference in Seattle was portrayed as a coup that would bring

13 millions of dollars in revenues to local business owners. More importantly, hosting the WTO

14 Ministerial Conference would solidify Seattle's reputation as a "world class" city and place us at the

15 hub of international trade. As Mayor Schell noted in an interview with the SEATTLE POST-

16 INTELLIGENCER reported on January 26, 1999, "[W]e'll get advertising through the news media that

17 we couldn't afford to buy." Other leaders called the conference a "phenomenal opportunity to

18 showcase Washington State." Senator Murray observed that the WTO's coming to Seattle was like

19 "winning the jackpot." Mayor Schell shared their sentiments.

20

27. Mayor Schell was so anxious to host the WTO that he was willing to have the City

21 incur millions in WTO-related expenses because "in terms of furthering the city's role ... this is a

22 huge plus." He was also willing to override downtown merchants' concerns, in the process noting

23 that, "This event is a momentous exciting affair for Seattle" and "speaks to the growing stature of

24 Seattle's place on the world stage."

25

28. On October 12, 1999, Seattle City Councilwoman Tina Podlowski observed about

26 Schell, "[T]his is all about the Mayor's desire to put on the best possible face for the WTO. All he

SECOND AMENDED CLASS ACTION

- 7-

COMPLAINT FOR VIOLATION OF CIVIL

RJGHTS

001428-11 100375 VI

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 F!Ffll AVENL'E, SUITE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 8 of 16

1 cares about is the outside show and he doesn't give a damn about people in the neighborhoods." As

2 events would have it, she turned out to be correct.

3 B. 4

Legitimate, Well-Recognized Groups Express Their Intent to Exercise Rights of Free Speech and Assembly in Protest of the WTO

29. Unfortunately for Mayor Schell's Norman Rockwell-like plans, dark clouds (from his 5

perspective) began to form shortly after Seattle was selected as the site ofthe WTO conference. 6

30. The convening of this conference had, for months, drawn the attention of thousands 7

of citizens and organizations who disagreed with WTO policies, including the Direct Action 8

Network, Public Citizen, the AFL-CIO and its affiliated unions, the Earth Justice Legal Defense 9

Fund, Sierra Club, the International Forum on Globalization, and many other well-known and 10

respected organizations. The opposition to the ministerial conference also included many diverse 11

organizations within the environmental, consumer rights, labor, pro-democracy, and other 12

movements, both in the United States and worldwide. Interested parties even included presidential 13

candidate Ralph Nader. 14

31. This opposition created an organized free speech presence in Seattle from the summer 15

of 1999 through December of that year. Opposition groups sponsored numerous educational 16

conferences and seminars concerning the WTO, many of which resulted in publications of books and 17

journals detailing their view that the WTO's policies and practices were anti-consumer, anti18

environmental, and anti-union. There were widely attended and publicized events dealing with the 19

elements and logistics of protest, including a training session on civil disobedience and nonviolent 20

actions conducted by the Direct Action Network. These expressions of public protest and 21

preparations for non-violent demonstrations were well known to City officials and to the Seattle 22

Police Department. 23

32. Through a series of public declarations and press conferences, the opposition to the 24

WTO made clear that its intention was to hold large demonstrations and rallies in downtown Seattle. 25

Some protestors expressed the desire to block delegates' entrance to the WTO conference being held
26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

-8-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 fiFTH AVE~ FE, SUITE 2900 • SEATTlE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 9 of 16

1 at the Washington Trade Center. The sites where the demonstrators would convene were widely

2 publicized. In addition, a large labor march was granted a City permit to march from Memorial

3 Stadium to the Trade Center site, starting at noon on November 30, 1999.

4 c.
5

Defendants Were on Notice That the Constitution Does Not Permit the Banning of Legitimate Free Speech and- Assembly

33. The City, Mayor Schell and Police Chief Stamper knew that WTO demonstrators had 6

the constitutionally protected right to conduct their planned assemblies, and to voice their opinions 7

in Seattle's public places. The controversial, passionate, even contentious nature of the WTO did 8

not afford the City any excuse to limit such activities. Clearly established law regarding public 9
demonstrations - such as the case of Collins v. Jordan, 110 F.3d 13 63 (91h Cir. 1996) -mandated 10

that the City could not act to abbreviate or violate the public's federal First Amendment right of 11

expression because of a prospective fear regarding potentially unruly activity. Long standing 12

precedent, e.g. Bering v. Share, 106 Wash.2d 212, 721 P.2d 918 (1986), dictated that the public's 13

right to speak freely under Article 1, Section 5 of the Washington Constitution was even more 14

expansive than their federal rights to freedom of expression. 15

34. Clearly established law also informed the City that it could not place any general or 16

blanket limitations on the public's right to lawful protest even if some instances of illegal or 17

destructive conduct did occur during the anticipated demonstrations. Authority such as Collins and 18

Bering clearly determined that such general restrictions would be fatally overbroad, unconstitutional 19

and unreasonable. 20

35. Further, decades of well established constitutional law prohibits the City from picking 21

and choosing, based on the content or form of speech or assembly, which citizens may exercise their 22

constitutional rights of speech and assembly. 23

36. Based on well known legal precepts, the City, Mayor Schell and Police Chief 24

Stamper well knew that the only limitations they could properly impose on demonstrators were those 25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375VI

- 9-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 flf·TII AVENUE, SUITE 2900 • SEATTLE, WA 98101
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Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 10 of 16

1 which were carefully tailored to prevent illegal behavior while simultaneously allowing the

2 continued expression of lawful speech.

3 D. Lawful and Peaceful Assembly and Protest Take Place on November 30, 1999

4

37. By 7:00a.m. on November 30, 1999, the first day of the WTO ministerial, groups of

5 political protesters had gathered and organized themselves outside the hotels where out-of-town

6 delegates were staying. Other demonstrators filled the streets around these hotels and around the

7 Trade Center, carrying signs, chanting slogans, and passing out leaflets.

8

38. The Seattle Police Department commissioned numerous Metro buses that were used

9 to encircle the Trade Center and establish a perimeter beyond which protestors could not advance.

10 This tactic was successful in keeping the public away from the WTO's meeting place, however it

11 apparently did not result in enough perceived crowd control to satisfy City authorities. Then, early

12 in the day on November 30, 1999, City police agents began liberally employing pepper spray, tear

13 gas and rubber pellets against demonstrators in an attempt to remove them entirely from the streets

14 of downtown Seattle.

15

39. For understandable reasons, Mayor Schell and the City refrained from imposing any

16 state of emergency or "no protest" zones on the afternoon of November 30. They knew that the

17 officially scheduled and sanctioned labor march was unavoidably bringing numerous families-

18 including young children- and recognizable citizens into the downtown area. Indeed, Seattle's

19 Deputy Mayor Tom Byers was part of that march. Consequently, the City limited its crowd control

20 efforts to piecemeal and often uncoordinated use of pepper spray, tear gas, and other weapons-

21 oriented methods on first day of the WTO conference. In spite of these pain-inflicting activities,

22 numerous protests and political demonstrations took place in the heart of the City streets. Although

23 not treated as such, these lawful forms of expression were almost entirely peaceable and restricted to

24 passive civil disobedience. Several isolated instances of destructive behavior did occur on the

25 fringes of larger ideological gatherings. Yet although the few perpetrators of such detrimental

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375VI

- 10-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 flf'TII AVENltF., SUITE 2900 • SEATTLE, \VA 98101
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Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 11 of 16

1 behavior were often known to, and even witnessed by, the City and its police agents, no action was

2 taken by any City authority to impede or contain them.

3 E. Institution of Curfew Zones and a No Protest Policy

4

40. By the evening ofNovember 30, 1999, Mayor Schell and the City had decided that

5 their attempts to stunt the protests were not achieving their desired effects. If anything, the number

6 ofpeople who planned to speak and assemble appeared to be growing. With a growing appreciation

7 of their inadequate preparations for the WTO events, the City, Mayor Schell and Police Chief

8 Stamper declared a State of Civil Emergency in the evening ofNovember 30, 1999. First, a general

9 nightlong curfew was imposed on the downtown area. Then, in an ever-escalating series of

10 restrictions, the City, Mayor Schell and Police Chief Stamper began to dictate various policies and

11 orders that would authorize the mass arrests of anyone perceived to be protesting- peacefully or

12 otherwise - in the downtown area after the lifting of the general curfew. In fact, these directives and

13 orders mandated the arrest of anyone who, without proper credentials, even ventured into the

14 downtown core.

15

41. Thus, for the first time in the city's history, peaceful protestors or citizens wishing to

16 use the streets, were subject to arrest merely for being present in a public place. A radio exchange

17 showed that even some members of the Seattle police department were often surprised by the import

18 of the City's policies and orders:

19

Let me get this straight [officer on the radio] we're just supposed to

20

arrest all protestors?

21

That's affirmative.

22

42. The defendants' directives and orders creating these "no protest" and/or curfew zones

23 were unconstitutional on their face. They were designed to deprive the plaintiffs, Class members

24 and public at large oftheir federal First Amendment right to free speech and assembly, as well as

25 their Washington State Constitutional right to speak freely. They were, in effect, content-based and

26 discriminatory restrictions aimed at denying specific individuals their lawfully guaranteed freedoms

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 11 -

HAGENS BERMAN SOBOL SHAPIRO LLP
IJOI FIFTH AVF.)':llf., SUITE 2900 • SEATILE, \VA 98101
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Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 12 of 16

of expression. They were also unconstitutional as applied. As applied, they were directed at

2 individuals who were lawfully gathered to exercise protected freedoms.

3

43. The City, Mayor Schell, and Police Chief Stamper elected to enforce their restrictions

4 on free speech and assembly by using disruptive and painful "'crowd control" measures such as 5 rubber pellets, pellet grenades, tear gas and pepper spray. 1 These measures were employed by the 6 City in a manner which unfairly punished peaceful demonstration, failed to curtail destructive

7 behavior, and did not foster general conditions of public safety in the downtown Seattle area.

8

44. On December 1, 1999, Mayor Schell's and the City's "'no protest" policies and

9 directives culminated in the issuance of Local Proclamation of Civil Emergency Order Number 3

10 (and subsequent revisions) ("Order Number 3"). The provisions of Order Number 3 embodied the

11 City's official policy ofbanning the general public from gathering in, or even from entering, an area

12 of approximately 24 city blocks in downtown Seattle described as: "Starting on the comer of 4th

13 Avenue and Lenora Street, then proceeding south on 4th Avenue to Seneca Street, then east on

14 Seneca Street to the I-5 freeway, then north along the I-5 freeway to Boren Avenue, then north on 15 Boren Avenue to Pine Street, then west on Pine Street to 6th Avenue, then north on 6th Avenue to

16 Lenora Street, then west on Lenora Street to, and concluding at [sic] 4th Avenue and Lenora."

17

45. This restricted area, which came to be the best known of the City's "no protest"

18 zones, included the Washington State Convention Center, which was the hub of all WTO activity in

19 Seattle. The area also incorporated Westlake Plaza, numerous hotels, much of the retail-shopping

20 core of the city, and many other public areas in which peaceful political demonstrations had been

21 held prior to the issuance of Order Number 3. The blanket speech, assembly and physical presence

22 restrictions imposed by Order Number 3 were declared to be effective until12:00 a.m. on

23

24

1 Pepper spray- also called "OC," in reference to its active ingredient: oleoresin capsicum- is a projectile substance derived from cayenne peppers. The chemical agents in oleoresin capsicum produce sensations of heat and

burning on human nerve-endings, in particular those located in the eyes, nose and mouth. The intensity of this burning is

25 measured along a scale known as the Scoville heat unit rating. One to three Scoville units are detectable by the tongue as

a level of heat. The pepper spray used by police in Seattle - the strongest and purest available - contained I 0 - 15%

26

oleoresin capsicum extract, with a Scoville rating of 1.5 to 2 million units. Hawken, Paul, "On the Streets of Seattle," The Amicus Journal, Spring 2000, p.29, 2000.

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 12-

HAGENS BERMAN SOBOL SHAPIRO llP
1301 fiFTH AVF.NllE, SUITE 2900 • SEATrLE, \VA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 13 of 16

1 December 2, 1999. Following this expiration date and time, Order Number 3 was revised and

2 extended to 12:00 a.m. on December 3, 1999.

3

46. Like the City's other "no protest" directives which had preceded it, Order Number 3

4 authorized law enforcement agents to arrest and summarily incarcerate any member ofthe general

5 public who entered specified areas of downtown for any reason- including the expression of

6 political ideas or the exchange of constitutionally protected speech. The only individuals exempted

7 from this order were credentialed WTO personnel, law enforcement officials, members of the press,

8 and residents (both commercial and domestic) of the restricted downtown area. The "credential"

9 exception to Order Number 3 provided:

10

No person shall entered or remain in a public place as defined in SMC

15.02.046C within the above described limited curfew area except the

11

following: Delegates and personnel authorized by the WTO to

participate in official WTO functions; Employees and owners of

12

businesses within the limited curfew area and other personnel

necessary to the operation of those businesses; Persons who reside

13

within the limited curfew area; Representatives of the press with

proper credentials; City officials with valid identification, and;

14

Emergency and public safety personnel.

15

47. Thus, Order No. 3 made it legal for one group of people to exercise their rights of

16 expression, but not others. WTO delegates were free to move about in the "no protest" zone, as

17 were credentialed press, while peaceful law abiding citizens, whether protesting or not, were

18 prohibited from assembly or speech.

19

48. On December 1 and 2, 1999, in accordance with the City's "no protest" policies and

20 even before the effective commencement of Order Number 3, numerous groups of peaceful

21 individuals were accosted and arrested by City police agents merely for attempting to express their

22 opinions of the WTO, or by offering silent support to those who were expressing their opinion.

23 Many more people were waylaid and arrested by police for nothing more than being physically

24 present in the City's targeted sections of the downtown area. All of these individuals were

25 confronted by armed City police agents who forcibly detained them, stifled their efforts of

26 expression, subdued them with painful crowd control weapons, searched their persons and

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 13-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 F!Ff!-1 AVF.XLTE, SUJTE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 14 of 16

1 belongings, and transported them to incarceration facilities for long periods of holding. In almost no

2 case did the individuals detained in this manner offer any resistance to the City's police agents. At

3 Second Avenue and Pine Street marchers were chanting "peaceful protest" when police attacked

4 them with rounds of tear gas, rubber pellets and concussion bombs. Many officers, against Seattle

5 Police Department policy, actually masked their identification so they could attack protestors with

6 anonymity.

7

8

9

10

11

12

13

14

15

16

---w
Riot police spray peaceful protestors with pepper spray.

17

49. Although the City's Order Number 3 ostensibly designated very specific zones as

18 being subject to speech restrictions, the City often chose to stifle all expression and demonstration in

19 a much more expansive area. With the consent of the Mayor and Chief ofPolice, citizens and

20 visitors were consequently arrested pursuant to City "no protest" policies and directives even though

21 they were actually outside any designated "no protest" zone. In all cases, these people were

22 subjected to the liberal use of crowd control weaponry, searches and seizures of their person, and

23 lengthy incarceration. Such weaponry included tear gas, rubber pellets and pepper spray.

24

50. For example, on the morning and afternoon of December 1, 1999, pursuant to a

25 permit issued by the City of Seattle itself, members and supporters of a steelworkers union were

26 allowed to participate in a political march which occurred well outside the designated no protest

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 14-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 fifTH AVENlTE, SUITE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 15 of 16

1 zone. After the march terminated near the Seattle waterfront, many of the participants began making

2 their way back toward the demonstration's starting point by angling east, in the general direction of

3 the downtown core. As one large group neared the location of 1st Avenue and Pike Street, the City

4 of Seattle's police agents confronted it and used painful crowd control weapons such as pepper spray

5 and rubber pellets to stop its progress. Importantly, at all times that such force was used, the group

6 of protesters was well outside the no protest zone of Order Number 3.

7

51. After stopping the protestors, the City's police agents employed more crowd control

8 weapons to herd them northward along 1st Avenue for approximately one mile, in a direction that

9 took them even further away from the no protest zone. The demonstrators were ultimately forced

10 into a second group of City police agents, who had been pre-positioned to block their path. Finding

11 their progress impeded in all directions, the protestors could do nothing but remain frozen in an area

12 around the intersection of 1st Avenue and Clay Street. Yet once they had ceased moving, the City's

13 police agents moved in and forcibly arrested the protestors for ostensibly failing to "clear" the street

14 "in accordance with Mayor [sic] order." The area of all these protestors' arrest was well outside any

15 of the City's "no protest" zones. Numerous other individuals were also arrested at locations outside

16 of any declared "no protest" zone. The police dragnet was so broad that even WTO delegates were

17 captured. As reported in the Seattle P.I. on December 2, 1999, the City's police agents dragged

18 away Mr. Victor Menotti, a delegate from San Francisco who was peacefully discussing

19 environmental issues with a group of protestors. Observers reported that he was "arrested in mid-

20 sentence."

21

52. On other occasions, the police force, using tear gas, rubber pellets, spray and crowd-

22 control methods, drove protesters out of downtown Seattle and arrested others, even though they

23 were outside the curfew area established by Order 3.

24 F. Allegations Specific to Former Plaintiff Hickey

25

53. Former Plaintiff Robert Hickey took part in a peaceful, municipally licensed, police-

26 sanctioned demonstration organized by the Teamsters and Steelworkers unions on December 1,

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 15-

HAGENS BERMAN SOBOL SHAPIRO llP
1301 fll'lll AVENL'E, SUITE 2900• SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298 Filed 05/17/06 Page 16 of 16

1 1999. As part of this demonstration, thousands of people marched down to a rally on the Seattle

2 waterfront, where a series of speeches about WTO policies were delivered. After this march and

3 rally had concluded, many of the participants began making their way toward the downtown area of

4 the City. Former Plaintiff Hickey was among these individuals, all of whom were peaceful and well-

5 behaved.

6

54. Near the intersection of First Avenue and Broad Street, Hickey left the group of rally

7 participants and entered the Labor Temple at that location. Hickey used a telephone inside the Labor

8 Temple to make several personal calls, then returned to the streets. Outside, Hickey met an

9 acquaintance who informed him that many of the participants from the labor rally were currently

10 being accosted and detained by police forces near the intersection of First Avenue and Clay Street.

11 Out of solidarity, Hickey hurried to this location, where he observed a cordon of riot police forces in

12 the process of surrounding a large group of peaceful individuals.

13

14

15

16

17

18

19

20

21

22

23

Riot police use tear gas to disperse crowd.

24

55. Hickey attempted to cross the police lines in order to join the besieged demonstrators.

25 The police allowed him to do so. From several members of the crowd, Hickey learned that as the

26 rally participants had moved east, away from the waterfront, armored City police agents had

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 16-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 Flnll A\'E:\'l'E, SUITE 2900 • SF.ATTLE, \VA 98101
TELEPHONE (206) 623· 7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 1 of 16

1 suddenly assembled to block their way. Without issuing any instructions or communications to the

2 demonstrators, these agents had then begun to discharge projectile weapons and tear gas at them.

3 The demonstrators had retreated from the police, using both chants and gestures to indicate their

4 peaceful intentions. Police agents had pursued the demonstrators, herding them away from

5 downtown. Other police agents had blocked side streets so as to insure that the demonstrators could

6 proceed in only one direction.

7

56. While Hickey spoke with other rally participants, police agents gave the crowd a

8 vague order to "disperse." However, both during and after the delivery of this dispersal order, police

9 kept the demonstrators encircled and did not provide them with any means of leaving the area.

10 Some individuals who actually tried to depart, including Hickey, were actively prevented from doing

11 so. Many of these people were even targeted with tear gas and concussion devices to prevent any

12 movement.

13

57. Police then arrested all of the surrounded demonstrators, including Hickey. Hickey

14 was handcuffed and loaded onto a transport that took him to Sandpoint Naval Station for processing.

15 At no point did Hickey offer any resistance to these police actions. He was never read his rights by

16 any police agent, or informed of the charges on which his arrest was predicated.

17

58. After being arrested, Hickey was held in custody by the Seattle Police and its agents

18 for approximately 72 hours before being released. At no time during his custodial incarceration was

19 Hickey ever informed of the charges brought against him.

20

59. All charges against Hickey were later withdrawn by the City of Seattle without a trial

21 on the merits.

22 G.
23

Allegations Specific to Plaintiff Hankin and Which Are Common to Members of the Class

60. Plaintiff Kenneth Hankin took part in a peaceful demonstration that began in Denny 24

Park on the morning of December 1, 1999. Hankin and other non-violent protestors marched toward 25

downtown Seattle, singing songs, playing music and chanting ideological slogans concerning the 26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 17-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 fiF-TII AVE!'/l1E, SUITE 2900. SEATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 2 of 16

1 WTO. Many in the crowd with him repeated the words "peaceful protest" as they advanced. No

2 acts of violence could be observed in the area.

3

61. At some time near 9:00 a.m., the demonstration involving Hankin was stopped by

4 City police forces at the public square near Westlake Center, in the City's commercial district.

5 Police agents wearing riot armor and others mounted on horses surrounded the demonstrators and

6 prevented their further progress in any direction. At this point, many of the demonstrators sat on the

7 ground to communicate their non-violent intentions.

8

62. The City's police agents then informed the demonstrators that any individuals sitting

9 down would be summarily arrested. The Police stated that those persons who did not wish to be

10 arrested should remove themselves to a building front on one side ofthe public square. Not wanting

11 to be arrested, plaintiff Hankin walked over to stand in the indicated area.

12

63. Police agents proceeded to arrest all of the non-violent protestors who remained

13 seated in the public square, often using pain and "compliance" holds on individuals who offered

14 them no resistance. After placing all of these demonstrators on buses for transport to incarceration

15 facilities, police agents then arrested all of the individuals who had placed themselves in the "non-

16 arrest" area pursuant to prior police instructions.

17

18

19

20

21

22

23

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 18-

HAGENS BERMAN SOBOL SHAPIRO llP
1301 FIFm AVENl'E, SUITE 2900 • SF.ATTLE, WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 3 of 16

1
2

3

4

5

6

7

8

9

10

11

12

Protestors being arrested at Westlake Center.

64. PlaintiffHankin was arrested by Seattle Police agents at this time, handcuffed and 13

placed on a bus for transport to an incarceration and processing facility at the Sandpoint Naval 14

Station. Plaintiff Hankin offered no resistance to any police action. He was never read his rights by 15

any police agent, or informed of the charges on which his arrest was predicated. 16

65_ After being arrested, plaintiff Hankin was held in custody by the Seattle Police and its 17

agents for approximately 60 hours before being released. At no time during his custodial 18

incarceration was plaintiff Hankin ever informed of the charges brought against him. 19

66. All charges against plaintiff Hankin were later dismissed by the City of Seattle
20

without a hearing. 21

22 H.

Allegations Specific to Plaintiff Hudziec and Which Are Common To Members of the Class

23

67. Plaintiff Jennifer Hudziec took part in the peaceful demonstration that began in

24 Denny Park on the morning of December 1, 1999. Hudziec marched with those who sang and

25 chanted their ideas concerning the WTO. One of the demonstrators played accompanying music on
26 a flute, others including Ms. Hudziec were singing the national anthem_

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

- 19-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 FTFTII AVENl'l!, SUITE 2900 • SEATTLE. WA 98101
TELEPHONE (206) 623-7292 • FACSIMILE (206) 623-0594

Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 4 of 16

1

68. At some time around 9:00 a.m., the demonstration involving Hudziec was stopped by

2 Seattle Police forces at the public square near Westlake Center. Seattle Police agents then informed

3 the demonstrators that any individuals who did not remove themselves to one side of the square

4 would be summarily arrested. The Police stated that those persons who did not wish to be arrested

5 should proceed to a designated building front. Making what she considered to be one of the most

6 difficult decisions ofher life, but not wanting to be arrested, plaintiffHudziec followed the police's

7 directives and walked over to stand in the indicated area. She believed that by doing so she would

8 not be arrested.

9

69. Police agents arrested all of the non-violent protestors who remained in the middle of

10 the public square. The Police then began arresting all of the individuals who had purposely placed

11 themselves in the "non-arrest" area, pursuant to prior police instructions. PlaintiffHudziec was thus

12 arrested by Seattle Police agents at this time, handcuffed and placed on a bus for transport to an

13 incarceration and processing facility at the Sandpoint Naval Station. PlaintiffHudziec offered no

14 resistance to any police action. She was never read her rights by any police agent, or informed of the

15 charges on which her arrest was predicated and was denied for hours the right to speak to a lawyer in

16 private. After the media left the area, the bus she was on was taken behind the Naval Station

17 whereupon Seattle Police began pepper spraying people on the bus and forcibly removed others. All

18 of this was purposely done outside the presence of the media.

19

70. After being taken off the bus, she was shackled by handcuffs and a waist cuff, and

20 transported to King County Jail. She was arrested on a Wednesday night and was not informed of

21 the charges against her until before her arraignment on Friday.

22

71. All charges against plaintiffHudziec were later dismissed by the City of Seattle

23 without a hearing.

24 1.

Allegations Specific to Plaintiff Lane and Which Are Common to Members of the Class

25

72. Plaintiff Stephanie Lane, like plaintiffs Hankin and Hudziec, took part in the peaceful

26 demonstration that began in Denny Park on the morning of December 1, 1999~

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

-20-

HAGENS BERMAN SOBOL SHAPIRO LLP
1301 fiFTH AVENUE, SUITE 2900 • SEATTLE, WA 98101
TELEPHONE (206) 62]-7292 • FACSIMILE (206) 621-0594

Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 5 of 16

1

73. Plaintiff Lane was with this demonstration when it was stopped by Seattle Police

2 forces at the public square near Westlake Center, in the City's commercial district. At the time it

3 was stopped, there were no acts of violence associated with this march.

4

74. Plaintiff Lane was among those individuals who did not want to be arrested.

5

75. However, plaintiff Lane was nonetheless arrested by Seattle Police agents, who

6 handcuffed her and placed her on a bus for transport to an incarceration and processing facility. At

7 no time did plaintiff Lane offer any resistance to police action. She was never read her rights by any

8 police agent.

9

76. After being arrested, plaintiff Lane was held in custody by the Seattle Police and its

10 agents for over 48 hours before being released.

11

77. All charges against plaintiff Lane were later dismissed by the City of Seattle without

12 a hearing.

13 J. Allegations Specific to Former Plaintiff Jackson

14

78. Former Plaintiff Carroll Jackson was observing the march in which Robert Hickey

15 participated, described above. Jackson had participated in marches earlier in the week, and she had

16 taken her camera downtown on December 1, 1999 to take photographs of the demonstrations. She

17 observed the City's police agents drive the demonstration of which Hickey was a part. After the

18 police agents had driven those demonstrators far north of the "no protest zone", Jackson was taking

19 photographs of the demonstrators. At that point, she was ordered to move across the street, and she
20 was then ordered to sit down with a group of demonstrators.

21

79. The police then ordered Jackson's group of demonstrators to join a larger group of

22 demonstrators. Police then arrested all of the surrounded demonstrators, including Jackson. Jackson

23 was handcuffed and loaded onto a transport that took her to Sandpoint Naval Station for processing.

24 At no point did Jackson offer any resistance to these police actions.

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 6 of 16

1

80. After being arrested, Jackson was held in custody by the Seattle Police and its agents

2 for more than four full days before being released. She was incarcerated for more than 72 hours

3 before she was arraigned. She was never read her rights.

4

81. All charges against Jackson were later withdrawn by the City of Seattle without a trial

5 on the merits.

6 K. 7

Allegations Specific to Plaintiff Cooper and Which are Common to Members of the Class

8

82. Plaintiff Cooper joined the march that had begun in Denny Park on the morning of

9 December 1, 1999. This was the same march in which plaintiffs Hankin, Hudziec and Lane, took

part. 10

11

83. Plaintiff Cooper was with this demonstration when it was stopped by Seattle Police

12 forces at the public square near Westlake Center, in the City's commercial district. At the time it

was stopped, there were no acts of violence associated with this march. 13

14

84. Plaintiff Cooper was among those individuals who did not want to be arrested. She

15 thus followed the police's directives to stand in an indicated "non-arrest" area and await further

instructions. 16

17

85. However, plaintiff Cooper was nonetheless arrested by Seattle Police agents, who

18 handcuffed her and placed her on a bus for transport to an incarceration and processing facility. At

19 no time did plaintiff Cooper offer any resistance to police action. After being arrested, plaintiff

20 Cooper was held in custody by the Seattle Police and its agents for more than four days before being

released. 21

22

86. All charges against plaintiff Cooper were later dismissed by the City of Seattle

without a hearing. 23

24

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-ll 100375 VI

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HAGENS BERMAN SOBOL SHAPIRO LlP
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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 7 of 16

1 L.
2

Allegations of Plaintiff Pearson Which are Common to the Members of the Class. 87. PlaintiffPearsonjoined the march that had begun in Denny Park on the morning of

3 December 1, 1999. This was the same march in which plaintiffs Hankin, Hudziec, Lane and Cooper,

4 took part.

5

88. Plaintiff Pearson was with this demonstration when it was stopped by Seattle Police

6 forces at the public square near Westlake Center, in the City's commercial district. At the time it

7 was stopped, there were no acts of violence associated with this march.

8

89. Plaintiff Pearson was among those individuals who did not want to be arrested. She

9 thus followed the police's directives to stand in an indicated "non-arrest" area and await further

10 instructions.

11

90. However, plaintiff Pearson was nonetheless arrested by Seattle Police agents, who

12 handcuffed her and placed her on a bus for transport to an incarceration and processing facility. At

13 no time did plaintiff Pearson offer any resistance to police action. After being arrested, plaintiff

14 Pearson was held in custody by the Seattle Police and its agents for more than four days before being

15 released.

16

91. All charges against plaintiff Pearson were later dismissed by the City of Seattle

17 without a hearing.

18 M. Allegations of Former Plaintiff Maloney

19

92. Former Plaintiff Emily Maloney took part in a peaceful demonstration that began in

20 Denny Park on the morning of December 1, 1999. Maloney and other non-violent protestors

21 marched toward downtown Seattle, singing songs, playing music and chanting ideological slogans

22 concerning the WTO. Many in the crowd with her repeated the words "peaceful protest" as they

23 advanced. No acts of violence could be observed in the area.

24

93. Maloney continued marching toward downtown Seattle with this group, and turned

25 onto 8th Avenue. When the group approached the vicinity of 8th Avenue and Blanchard Street, a

26 police line formed to block their path. The crowd remained peaceful. No acts of violence could be

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 8 of 16

1 observed. Then, without warning, the police began arresting the group. Maloney was among those

2 arrested.

3

94. The Seattle Police agents handcuffed Maloney and placed her on a bus for transport

4 to an incarceration and processing facility. At no time did Maloney offer any resistance to police

5 action. Nevertheless, the police placed the handcuffs so tight on her wrists that they started to bleed.

6 Despite the fact that Maloney is a sixty-eight year old woman, despite the fact that the police had

7 inflicted this pain upon her, and despite the cries for help by her and others, the police made no

8 attempt to loosen her handcuffs for several hours. Worse, she was illegally incarcerated for 36 hours

9 before she was given anything to eat.

10

95. Maloney was held in custody by the Seattle Police and its agents for over 40 hours

11 before being released.

12

96. All charges against Maloney were later dismissed by the City of Seattle without a

13 hearing.

14 N. The Impact of the Defendants' Policies

15

97. The impact of defendants' policy and orders as created and then implemented was

16 far-reaching and included, but was not limited to:

17

(a) Plaintiff and members of the class were prohibited from peaceful free speech

18

and assembly;

19

(b) Free speech and assembly was chilled, not just for plaintiffs and members of

20

the class, but for thousands of others who were considering lawful free speech and assembly,

21

but who were dissuaded from doing so by defendants' policies;

22

(c) Plaintiffs and members of the class experienced well-founded fear and anxiety

23

as their free speech rights were quashed by an aggressive, armed police force;

24

(d) Plaintiffs and members of the class had to endure arrest, including being

25

handcuffed and forced onto buses and jails against their will;

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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1

(e) Plaintiffs and members of the class had to suffer the indignity and burden of

2

being jailed for exercising their constitutional rights; and

3

(f) Plaintiffs and members of the class each experienced distress and physical

4

discomfort both from the deprivation of their civil rights and their physical treatment.

5

98. The foregoing impacts are common to plaintiffs and members of the class.

6

v. CLASS ACTION ALLEGATIONS

7

99. Plaintiffs originally brought this action individually and as a class action on behalf of

8 the Class defined as follows ("the Original Class"):

9

All persons who were arrested by the City of Seattle and its police

10

agents or its affiliated police agents on December 1 and 2, 1999, pursuant to the defendants' "no protest" polices and directives which

11

were eventually embodied by the City of Seattle's Local Proclamation of Civil Emergency Order Number 3 (and subsequent revisions) and

12

who were subsequently not convicted of any crime. Included in this class are all persons arrested pursuant to such policies both inside and

13

outside the zone established by Order Number 3.

14

On January 25, 2002, the Court denied certification of this Class. On November 5, 2002, the

15 Court certified the following Class:

16

All individuals arrested on December 1, 1999, at or near the

intersections ofFirst Avenue and Broad Street or First Avenue and

17

Clay Street in Seattle, Washington, whose arrest records indicate that a

reason for arrest was a violation of Seattle Municipal Code §

18

12A.26.040.

19

The claims of this Class (the "First and Broad Class") were settled and dismissed in 2004

20 following notice to the First and Broad Class and final approval of the Court. Following a reversal

21 of the January 25, 2002, denial of class certification by the Ninth Circuit Court of Appeals, Plaintiffs

22 now seek certification of the following Class (referred to herein as "the Class"):

23

All individuals arrested on the morning of December 1, 1999, in

Seattle, Washington, in Westlake Park or the streets or sidewalks

24

immediately adjacent to Westlake Park.

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-1 I 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 10 of 16

1

100. This action is brought and may properly be maintained as a class action pursuant to

2 Federal Rule of Civil Procedure 23(b)(l) and (b)(3). The action satisfies the numerosity, typicality,

3 adequacy, commonality, predominance and superiority requirements of those provisions.

4

101. The Class is so numerous that the individual joinder of all of its members is

5 impracticable. While the exact number of Class members is unknown to plaintiffs at this time and

6 can only be ascertained through appropriate discovery, plaintiffs are informed and believe that the

7 Class includes approximately two hundred members whose identities can be easily ascertained from

8 City records.

9

102. Common questions of fact and law exist as to all members of the Class which

10 predominate over any questions affecting individual members ofthe Class. These common legal

11 and factual questions, which do not vary from Class member to Class member, and which may be

12 determined without reference to the individual circumstances of any Class member, include but are

13 not limited to the following:

14

(a) whether the defendants' policies and directives which were ultimately

15 embodied by Local Proclamation of Civil Emergency Order Number 3 (and subsequent revisions) of

16 the City of Seattle, and which attempted to create extensive curfew zones, or "no protest" zones,

17 throughout the City's downtown area, violated the First Amendment of the United States

18 Constitution, and Article 1, Section 5 ofthe Washington State Constitution;

19

(b) whether the arrests of plaintiffs and the Class while physically within one of

20 the City's declared curfew zones or "no protest" zones violated the federal First and Fourth

21 Amendment rights of plaintiffs and the Class;

22

(c) whether the arrests of plaintiffs and the Class while physically within one of

23 the City's declared curfew zones or "no protest" zones violated the rights of plaintiffs and the Class

24 guaranteed under Article 1, Section 5 of the Washington State Constitution;

25

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 11 of 16

1

(d) whether, pursuant to 42 U.S.C. § 1983, plaintiffs and the Class are entitled to

2 an award of compensatory damages resulting from the violation of their federal First Amendment

3 rights by the City of Seattle;

4

(e) whether, pursuant to 42 U.S.C. § 1983, plaintiffs and the Class are entitled to

5 an award of punitive damages resulting from the violation of their federal First Amendment rights;

6

(f) whether, pursuant to 42 U.S.C. § 1983, plaintiffs and the Class are entitled to

7 an award of compensatory damages from the City resulting from the violation oftheir federal Fourth

8 Amendment rights by the City of Seattle;

9

(g) whether pursuant to Article 1, Section 5 of the Washington State Constitution

10 plaintiffs and the Class are entitled to an award of compensatory damages from the City for the

11 violation of their guaranteed rights to speak freely.

12

103. Plaintiffs' claims are typical of the claims of the members of the Class, and the

13 representative plaintiffs interests are coincident with and not antagonistic to those of the other Class

14 members they seek to represent. Plaintiffs and all members of the Class have sustained damages

15 from defendants' common course of conduct as complained ofherein. The damages of each

16 member of the Class were caused directly by defendants' wrongful conduct.

17

104. Plaintiffs will fairly and adequately protect the interests of the members of the Class.

18 Plaintiffs have retained attorneys experienced in the prosecution of class actions, and plaintiffs

19 intend to prosecute this action vigorously.

20

105. A class action is superior to other available methods for the fair and efficient

21 adjudication of this controversy. Individual Class members do not have a cognizable interest in

22 individually controlling the prosecution of separate actions. Given the relatively small amount of

23 any potential damage awards attributable to each Class member, it would be impractical for them to

24 pursue separate suits. Such suits would also be unduly burdensome to the courts in which they

25 would proceed. Moreover, individualized litigation would present the potential for varying,

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-1 I 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 12 of 16

1 inconsistent, or contradictory judgments and would magnify the delay and expenses to all parties and

2 to the court system resulting from multiple trials of the same factual and legal issues.

3

106. Owing to the predominance of common issues among Class members, as well as the

4 availability of adequate records regarding Class membership, the conduct of this litigation as a class

5 action will encounter no significant manageability obstacles.

6

FIRST CAUSE OF ACTION

7

(Violation of Federal Civil Rights- Declaration of Unconstitutionality)

8

107. Plaintiffs, individually and on behalf of the Class, incorporate the preceding

9 paragraphs as though fully set forth herein.

10

108. The actions ofthe City of Seattle in formulating, issuing and causing to be effectuated

11 the curfew and "no protest" policies and directives, which were ultimately embodied by Order

12 Number 3, were taken under color of state law. These policies, directives and Order Number 3

13 represented the official policy of the City of Seattle and were implemented by the City's police

14 force.

15

109. These policies and Order Number 3 were unconstitutional as enacted, and as applied,

16 in that they restricted peaceful free speech and assembly based on its content, protecting certain

17 forms of speech and assembly (for example, that ofWTO delegates) while prohibiting the free

18 speech of others who were engaging in "unwanted" forms of speech or expression. These policies

19 and orders were also unconstitutional as applied in that they restricted lawful, peaceful free speech

20 and assembly based on its content. The policies therefore violated plaintiffs' and the Class's federal

21 constitutional rights under the First Amendment.

22

SECOND CAUSE OF ACTION

23

(Violation of Washington State Civil Rights - Declaration of Unconstitutionality)

24

110. Plaintiffs, individually and on behalf of the Class, incorporate the preceding

25 paragraphs as though fully set forth herein.

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 13 of 16

1

111. The actions of the City of Seattle in formulating, issuing and causing to be effectuated

2 the curfew and "no protest" policies and directives which were ultimately embodied by Local

3 Proclamation of Civil Emergency Order Number 3 were taken under color of state law. These

4 policies and Order Number 3 represented the official policy of the City of Seattle and were

5 implemented by the City's police force.

6

112. The restrictions on physical presence, assembly and expression incorporated in

7 defendants' curfew and "no protest" policies and directives- which included Order Number 3-

8 violated plaintiffs' and the Class's rights under Article 1, Section 5 of the Washington State

9 Constitution.

10

THIRD CAUSE OF ACTION

11

(Violation of Federal Civil Rights - Damages)

12

113. Plaintiffs, individually and on behalf the Class, incorporate the preceding paragraphs

13 as though fully set forth herein.

14

114. The actions ofthe City of Seattle in formulating, issuing and causing to be effectuated

15 the curfew and "no protest" policies and directives which were ultimately embodied by Order

16 Number 3 were taken under color of state law. These policies, directives and Order Number 3

17 represented the official policy of the City of Seattle and were implemented by the City's police

18 force.

19

115. The mass arrests of plaintiffs and Class members while physically inside one of the

20 defendants' designated curfew or "no protest" zones violated their rights under the First and Fourth

21 Amendments to the United States Constitution. Pursuant to 42 U.S.C. § 1983, the defendants are

22 therefore liable for all of plaintiffs' and Class members' damages which proximately resulted

23 therefrom. 115.

The mass arrests of plaintiffs and Class members while physically outside one

24 of the defendants' designated curfew or "no protest" zones violated their federal constitutional rights

25 under the First and Fourth Amendments to the United States Constitution. Pursuant to 42 U.S.C. §

26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 14 of 16

1 1983, the defendants are therefore liable for all of plaintiffs' and Class members' damages which 2 proximately resulted therefrom.

3

FOURTH CAUSE OF ACTION

4

(Violation of State Civil Rights- Damages)

5

116. Plaintiffs, individually and on behalf the Class, incorporate the preceding paragraphs

6 as though fully set forth herein.

7

117. The actions of defendants the City of Seattle in formulating, issuing and causing to be

8 effectuated the curfew and "no protest" policies and directives which were ultimately embodied by

9 Order Number 3 were taken under color of state law. These policies, directives and Order Number 3

10 represented the official policy of the City of Seattle and were implemented by the City's police

11 force.

12

118. The mass arrests of plaintiffs and Class members pursuant to the defendants' curfew

13 and "no protest" policies, directives and Order Number 3 violated their rights to speak freely

14 guaranteed by Article 1, Section 5 of the Washington State Constitution. Pursuant to this article and

15 section of the constitution, the defendants are therefore liable for all of plaintiffs' and Class

16 members' damages which proximately resulted therefrom, including the denial of the right to speak

17 freely and the arrests and incarcerations associated with such denial.

18

VI. JURY DEMAND

19

119. Pursuant to Federal Rule of Civil Procedure 38, a jury trial is demanded on all causes

20 of action alleged in the Complaint.

21 VII. PRAYER FOR RELIEF

22 120. Plaintiffs, on behalf of themselves and the Class, pray for the following relief:
23 A. Declaratory relief specifying that the defendants' policies and directives
24 which were intended to establish extensive curfew or "no protest" zones - and which included Local
25 Proclamation of Civil Emergency Order Number 3 (and subsequent revisions) - violated the First
26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 !00375VI

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Case 2:00-cv-01672-MJP Document 298-2 Filed 05/17/06 Page 15 of 16

1 Amendment ofthe United States Constitution, as well as Article 1, Section 5 ofthe Washington

2 State Constitution;

3

B. Declaratory Relief specifying that the defendants' arrest of individuals, both

4 inside and outside the "no protest" zones, violated plaintiffs' and class members' rights under the

5 Fourth Amendment to the United States Constitution.

6

C. A uniform award of compensatory damages against all defendants for plaintiff

7 and each member of the Class in an amount to be proven at trial;

8

D. An award of reasonable attorney's fees and costs pursuant to 42 U.S.C.

9 § 1988; and

10

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

11 DATED: May_, 2006.
12
13

HAGENS BERMAN SOBOL SHAPIRO LLP

14

15

By~--~~----~==~~~~~--Steve W. Berman, WSBA No. 12536

Tyler S. Weaver, WSBA No. 29413

16

1301 Fifth Avenue, Suite 2900

Seattle, WA 98101

17

(206) 623-7292

18

Lead Counsel for Plaintiffs

19

Arthur Bryant

20

Victoria Ni

TRIAL LAWYERS FOR PUBLIC JUSTICE

21

Trial Lawyers for Public Justice

555 12th Street, Suite 1620

22

Oakland, CA 94607

23

Michael E. Withey

STRITMATTER KESSLER WHELAN WITHEY

24

COLUCCIO

200 Second Avenue West

25

Seattle, WA 98119-4204

(206) 448-1777 26

SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

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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 26
SECOND AMENDED CLASS ACTION COMPLAINT FOR VIOLATION OF CIVIL RIGHTS
001428-11 100375 VI

FRED DIAMONDSTONE Attorney at Law 700 Dexter Horton Bldg 710 Second Ave Seattle, WA 98104 (206) 568-0082
YVONNE KINOSHITA WARD 128 14th St SE Auburn, WA 98002
John Muenster MUENSTER & KOENIG Wells Fargo Center 999 Third Ave., Suite 4100 Seattle, WA 98104
Benjamin A. Schwartzman LOVELL MITCHELL & BARTH 11542 N.E. 21st St, Suite A Bellevue, WA 98004
ERWIN CHEMERISNKY Professor of Law Duke University Law School Science Drive and Towerview Road Durham, NC 27708 Counsel for Plaintiffs

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