With no deal on temporary restraining order, Black Lives Matter and city face off in court tomorrow morning

Yesterday I reported that lawyers for Black Lives Matter and for the City of Seattle were trying to negotiate a mutually agreeable temporary restraining order related to the city’s use of “less lethal” weapons such as tear gas, rubber bullets and blast balls for crowd control during the ongoing protests. But having failed to reach an agreement today, the issue now heads to a hearing tomorrow morning with U.S. District Court Judge Richard Jones.

In advance of that hearing, late this afternoon the city filed a brief with the city opposing the request for a temporary restraining order.


The City’s brief argues three main points. First, it asserts that the plaintiffs don’t meet the requirements for a temporary restraining order (TRO): that they are likely to succeed on the merits of the case; they will suffer immediate and irreparable harm without the TRO; the balance of equities between the parties tips in their favor; and a TRO is in the public interest.

To that end, they argue:

  • This kind of case lends itself to awarding monetary damages to injured parties, but not injunctive relief.
  • The plaintiffs can’t show that the police’s action was retaliatory because of the content of the speech (protesting police brutality), since there have been several nights of protests in which the police took no action against protesters.
  • There are outstanding issues related to the facts of the case, specifically about the sequence of events that led up to the police using crowd control weapons and the extent to which police were responding to violent protesters, so it would be premature at this point to declare that the plaintiffs were likely to succeed based on the facts.
  • The plaintiffs are required to show that they would suffer immediate and irreparable harm absent a TRO, but can’t do so because of the nights where police took no action against protesters; the police aren’t responding with force to every protest. The threat of harm can’t be speculative.
  • The plaintiffs fail to take into consideration the balance of equities and the public interest, because the police have a duty to protect “public and officer life and safety” as well as public and private property.

Second, the city argues that the plaintiffs don’t have standing to seek a TRO (or injunctive relief in general), because the law requires that the issues presented be “definite and concrete, not hypothetical or abstract.” In this case, that means in order to obtain injunctive relief, the plaintiffs would need to demonstrate that they are under threat of suffering an “injury in fact that is concrete and particularized; the threat must be actual and imminent, not conjectural or hypothetical.” The city argues that the plaintiffs have not identified an injury in fact, but rather asserted their speculative fear of future injury and that the past action served to have a “chilling effect on protected speech.” The city does some legal hair-splitting arguing that an action’s “chilling effect” on protected speech can be asserted as a reason why an action is illegal, but it can’t be asserted as the harm that gives the plaintiffs standing to sue — the only exception being when the action directly regulates speech.

Third, the city argues that the language in the TRO that the plaintiffs propose is too restrictive and does not balance the police department’s duty to protect lives and property. It again notes the TROs issued in Portland and Denver that made exceptions for protecting lives and property, and once again offers the city’s alternative language that adds an exception for protecting lives (but not property).

In support of its brief, the city attached a declaration for SPD Assistant Chief for Patrol Operations Thomas Mahaffey, in which he gives a detailed account from SPD’s point of view of what transpired each night of the protests and specifically what provoked the SPD officers to use crowd control weapons on the nights that they did so. The is the most detailed description yet of how things looked from the officers’ point of view.

It’s possible that Judge Jones will rule “from the bench” in tomorrow morning’s hearing, or he might want to further consider both sides’ arguments before issuing a written ruling.

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