Judge issues temporary restraining order restricting SPD’s use of crowd-control tools

This afternoon, U.S. District Court Richard Jones issued a temporary restraining order that restricts Seattle Police Department from using some “less lethal” crowd control devices.


The judge spent almost no time on the city’s argument that the plaintiffs lacked standing to sue — in fact, he dismissed it in a three-line footnote saying that it “lacks merit.”

Proceeding to the heart of the argument, he found that the plaintiffs were likely to succeed on their claims that the city violated their First Amendment and Fourth Amendment rights.  While acknowledging “the record is limited at this stage,” he nevertheless determined that “on some occasions the SPD has in fact used less-lethal weapons disproportionately and without provocation.”

Further, he concluded that:

  • “SPD’s actions would chill a person of ordinary firmness from continuing to protest.”
  • “SPD’s use of less-lethal, crowd control weapons have surely chilled speech.”
  • “SPD exerted excessive force without provocation.”
  • “Plaintiffs have established a threat of immediate, irreparable harm in the absence of a TRO.”
  • “this Court appreciates that officers sometimes, especially in the circumstances we find ourselves in, carry on a thankless job.”
  • “The balance of hardships favor an injunction.”
  • “Plaintiffs have shown that the protests were a substantial or motivating factor in SPD’s conduct.”  In other words, the fact that the demonstrators were protesting police brutality motivated SPD to respond they way they did.

That last point is the most impactful finding in the judge’s ruling, and it’s a little surprising that he was willing to reach that conclusion this early in the proceedings given his own admission that all the facts are not yet available. Here are his comments:

Finally, Plaintiffs have shown that the protests were a substantial or motivating factor in SPD’s conduct. Plaintiffs contend that SPD indiscriminately threw an excessive amount of chemical agents at peaceful protests over police brutality…  They argue that this reveals that a “substantial or motivating purpose” of the force was Plaintiffs’ exercise of their First Amendment rights.  The Court agrees. The use of indiscriminate weapons against all protesters—not just the violent ones—supports the inference that SPD’s actions were substantially motivated by Plaintiffs’ protected First Amendment activity. The City objects, however, arguing that the protestor’s message has been constant while the SPD’s use of less-lethal weapons has decreased over time… Thus, they suggest, SPD’s actions were not motivated by Plaintiffs’ protest.  But it is not clear to the Court that, under the third prong of the retaliation analysis, Plaintiffs must show that they were retaliated against every time they exercised their First Amendment rights. The law clearly requires only that the SPD’s actions be substantially motivated by Plaintiffs’ conduct.

Jones summarizes his conclusions in his discussion of where the public interest lies:

The public interest favors an injunction. First, Plaintiffs make a strong showing of past and future constitutional violations, which under the case law is always in the public interest to prevent. Second, these protests occur during a pandemic, the spread of which may be exacerbated by chemical irritants such as tear gas and pepper spray…  Third, the weapons are indiscriminate, used on entire crowds of peaceful protestors without targeting any single agitator or criminal… Because they are indiscriminate, they may even spill into bystanders’ homes or offices as they have done before… Hence, the public interest would be advanced by an injunction.


In crafting the specific wording of the injunction, the judge mixed language suggested by both sides, and added in a bit of his own. (for comparison:  the plaintiffs’ proposal, and the city’s proposal) Here’s the full text of the operative part:

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 irritants or projectiles of any kind against persons peacefully engaging in protests or demonstrations. This injunction includes: (1) any chemical irritant such as and including CS Gas (“tear gas”) and OC spray (“pepper spray”) and (2) any projectile such as and including flash-bang grenades, “pepper balls,” “blast balls,” rubber bullets, and foam-tip projectiles. This Order does not preclude individual officers from taking necessary, reasonable, proportional, and targeted action to protect against a specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property. Further, tear gas may be used only if (a) efforts to subdue a threat by using alternative crowd measures, including pepper spray, as permitted by this paragraph, have been exhausted and ineffective and (b) SPD’s Chief of Police has determined that use of tear gas is the only reasonable alternative available. The Chief of Police may only authorize limited and targeted use of tear gas and must direct it to those causing violent or potentially life-threatening activity. To the extent that chemical irritants or projectiles are used in accordance with this paragraph, they shall not be deployed indiscriminately into a crowd and to the extent reasonably possible, they should be targeted at the specific imminent threat of physical harm to themselves or identifiable others or to respond to specific acts of violence or destruction of property.

Much of the discussion in this morning’s hearing surrounded SPD’s ability (or inability) to target crowd-control weapons at specific individuals who posed a threat or are engaged in illegal acts.  There was general agreement that tear gas in particular cannot be targeted to a limited group — and that other crowd control weapons cannot be perfectly targeted.  The plaintiffs argued that they should be prohibited altogether for that reason, to avoid harming peaceful protesters. The city argued, consistent with how similar cases have been decided, that the police still need an ability to disperse crowds in some circumstances, as well as to respond proportionally to a threat of physical harm, and need some amount of latitude in doing so. The judge’s final version threads that needle, prohibiting crowd-control weapons from being “deployed indiscriminately into a crowd” and requiring them to be targeted “to the extent reasonable possible.”

The judge added an explicit exception for the use of tear gas, requiring it to be authorized by the Chief of Police herself, to be “limited and targeted,” and to be directed “to those causing violent or potentially life-threatening activity.”

The judge also added “foam-tip projectiles” to the list of banned crowd-control weapons after the city noted this morning that SPD uses them instead of rubber bullets.

The temporary restraining order expires in fourteen days, enough time for the court to consider a motion for a preliminary injunction that would extend until the end of the case. Temporary restraining orders are emergency, expedited orders with little facts and briefing; preliminary injunctions are one step up from that based upon more in-depth briefings and evidence submitted by both sides; they take a few weeks, but are intended to be in pace until the end of a trial and a final judgment it ordered.

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