Today Black Lives Matter Seattle-King County filed a lawsuit on behalf of itself, several individual protesters, and one journalist, over the Seattle Police Department’s use of force during the protests over the past week and a half.
(UPDATE at end of article)
The lawsuit argues that the city violated the plaintiffs’ First Amendment and Fourth Amendment rights by SPD’s use of “less lethal” tools to break up protests. Those tools included tear gas, blast balls, and rubber bullets.
The plaintiffs are asking the court to:
- issue a temporary restraining order against the city “from further violating the First and Fourth Amendment rights of Plaintiffs by using less-lethal weapons to control and suppress demonstrations.”
- issue a preliminary injunction saying the same.
- issue a permanent injunction saying the same.
- issue a declaratory judgment that the city has violated the First and Fourth Amendment rights of plaintiffs.
- award court fees and “other relief as the Court may deem just and proper.”
A temporary restraining order is something that the court would issue immediately to deal with an imminent threat, to stop the city’s use of less-lethal weapons for a few weeks until the court has more time to be briefed on the facts and issues. A preliminary injunction would normally follow, if the court determines that the plaintiffs are likely to succeed on the merits of the case, and it would last until a final judgment is issued. A final judgment, following either a trial or a motion for summary judgment, could lead to a permanent injunction to stop the city’s conduct.
The plaintiffs are being represented by attorneys from the ACLU as well as by local powerhouse law firm Perkins Coie. The Perkins Coie lead attorney on the case is David Perez, who is also the attorney for the Community Police Commission. In fact, today Perez also filed a brief on behalf of the CPC opposing the termination of any part of the Consent Decree, even though the motion to do so has already been withdrawn.
The plaintiffs are suing the city, rather than individual police officers. Successfully doing so requires that the plaintiffs prove the city’s “policy, practice and custom” dictated the officers’ conduct in using the less-lethal weapons to break up the protests, rather than individual police officers acting independently and potentially outside the department’s official policy directives. In the complaint filed today the phrase “policy, practice and custom,” is repeated over and over as the plaintiffs start to build their case. And for the most part it’s not a difficult case to make: the stated policies do allow for the use of several of the less-lethal weapons that the department deployed.
But the devil is in the details, because the city’s use-of-force policies have been heavily scrutinized before, and in fact most parts were explicitly approved by the Department of Justice and a federal judge over the course of the Consent Decree implementation. Not all of them, though; the OPA, OIG and CPC have pointed out SPD’s policies only allow for tear gas to be deployed by the SWAT team, and SPD Chief Best specially authorized patrol officers to deploy it if necessary because the department’s stock of other less-lethal weapons were depleted. But for everything listed in the policies, the plaintiffs would need to make the case that the policies weren’t being followed, and at the direction of SPD management.
The city, for its part, would need to show that officers’ safety was at risk. There is a fair amount of evidence that at the start of most of the confrontations that was true, though it becomes a tougher question as to whether the response was “proportional” to the risk. Both Durkan and Best have gone on the record saying that SPD’s use of force must be proportional, and it helps the plaintiffs’ case that both Best and Durkan have admitted that SPD’s response to assaults from protesters was at times not proportional and involved excessive use of force. If the city chooses to litigate the case, it can nitpick some of the claims and probably whittle the case down to something less ominous. But it is unlikely to prevail; there is simply too much evidence to overcome and the plaintiffs will use the words of Durkan, Best and the City Council against them.
There are, of course, plenty of other reasons that the city will want to settle the case quickly. First, for PR reasons: at a time when the city is trying to seem humble and contrite for its mistakes over the past week and committed to further reforms at SPD, defending itself against this suit will undo all that effort. The city wants to move on; ongoing litigation — and worse, a jury trial — would be a nightmare for its image as a leading progressive city. Second, the suit will attract more plaintiffs if it becomes clearer that the case is strong; in fact, it might even become a class-action suit since thousands of protesters participated in the nightly demonstrations. Already this afternoon another journalist announced that he is joining the lawsuit.
Third, it’s likely to spill over into the Consent Decree case. At the moment, the Black Lives Matter case has been assigned to District Court Judge Richard Jones. But given that much of the case will depend upon the department’s “use of force” policies that were approved by his colleague Judge James Robart, who oversees the Consent Decree, there’s a good chance that this case will be transferred over to Robart. Then if Robart finds that the city has, by its own “policy, practice and custom” violated the constitutional rights of the plaintiffs, he will have little choice but to also find that the city has fallen entirely out of compliance with the Consent Decree, and not just in relation to the accountability and discipline issues.
Mayor Durkan seems to understand that mounting a strong defense is not a good option. In a statement this afternoon, a Mayor’s Office spokesperson effectively admitted the validity of the lawsuit:
Today’s lawsuit represents another step by the community to hold the City accountable for its response to the recent events. It is fitting that it lifts the voices and experiences of Black Lives Matter and longtime civil rights leaders like Sharon Sakamoto. From the onset, the Mayor has been clear that she believes that people are righteously marching to fight systemic racism. The City will protect every individual’s First Amendment right to safely protest their government and demand action. The Mayor and Chief Best have acknowledged that the city can and must do better for crowd management.
If the case does move forward without a settlement, the pace will likely be set by the OPA‘s investigations into complaints of excessive use of force by SPD officers during the protests, as some of those complaints overlap with those cited in the lawsuit. OPA Director Andrew Myerberg has said that he aims to have at least some of the investigations concluded within 60 days; by the terms of the police officers’ collective bargaining agreement, any investigation not completed within 180 days (with some exceptions) may not lead to discipline against an officer. So six months from now, we (and the plaintiffs, and the city) will have a much clearer idea of the extent to which the city is culpable for the uses of force that led to today’s lawsuit being filed.
In the meantime, today the City Council introduced a new bill that bans the ownership, purchase, rent, storage, or use of crowd control weapons. That bill might be passed by the Council as soon as next Monday.
UPDATE: Late today the plaintiffs filed a motion for a temporary restraining order. Their proposed order would enjoin the city for fourteen days as follows:
The City of Seattle, including the Seattle Police Department and any other officers, departments, agencies, or organizations acting within the Seattle Police Department’s jurisdiction or under the Seattle Police Department’s control (collectively, “the City”), is hereby enjoined from deploying chemical weapons or projectiles of any kind for the purpose of crowd control at protests or demonstrations. This injunction includes prohibitions on: (1) any chemical irritant such as CS Gas (“tear gas”) or OC Spray (“pepper spray”) and (2) any projectile such as flash-bang grenades, “pepper balls,” “blast balls,” and rubber bullets.
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