There was a flurry of activity yesterday and today between the lawyers for Black Lives Matter and the Seattle City Attorney’s office over the lawsuit filed earlier this week, which alleged that SPD’s response to the last several days of protests violated the protesters’ constitutional rights. Yesterday the plaintiffs filed a motion for a temporary restraining order (TRO) prohibiting the city from using “less lethal” crowd control weapons, including tear gas, on protestors. Today the city notified the court that it intends to oppose that motion, at the same time revealing that the two sides have been negotiating the terms of a TRO that will be acceptable to both.
Yesterday’s motion proposed this language in the TRO:
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.
As described in the back-and-forth emails that the city submitted to the Court today, the city wants to modify it to provide an exception that would “preserve the City’s ability to protect individuals from imminent physical harm.” The city emphasizes in its filing today that it is not asking for an exception to safeguard property — only to protect people. Here is the city’s counter-proposal:
The City of Seattle, including the Seattle Police Department and any other officers, departments, agencies, or organizations under the Seattle Police Department’s control (collectively, “the City”), is hereby enjoined from employing chemical weapons or projectiles of any kind against persons engaging in peaceful protests or demonstrations. This injunction includes: (1) any chemical irritant such as and including CS Gas (“tear gas”) and OC Gas (“pepper spray”) and (2) any projectile such as and including flash-bang grenades, “pepper balls,” “blast balls,” and rubber bullets, unless the incident commander or above-ranking member of command staff specifically authorizes such use of force in response to specific acts of violence creating likely imminent physical harm to an individual(s). This Order does not preclude individual officers from taking reasonable, necessary, and proportional action to protect against imminent threat of physical harm to themselves or identifiable others, including the deployment of OC spray.
The city cited two parallel cases where demonstrators obtained similar restraining orders in other cities: Denver and Portland. It points out that in both cases the court issued a TRO that provided the exception that Seattle is seeking, though both include additional exceptions for property protection. Since those other courts are peers to the U.S. District Court here, the rulings aren’t binding precedent for this case; nevertheless the judge will surely read them and consider the points raised.
So far it appears that the two sides have not come to an agreement. Late this afternoon there was a telephone conference with the judge assigned to the case; the judge gave the city until 4:00pm tomorrow (Thursday) to file its response to the motion, and he scheduled a hearing for 9:00am Friday.
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