Yesterday five Seattle protesters filed a lawsuit against the city over alleged SPD’s use of crowd-control weapons at protests, in particular the protest-turned riot on July 25th. Their allegations, as well as their requests for the court to take action, are similar to the case filed by Black Lives Matter Seattle-King County and the ACLU — so similar, in fact, that it’s questionable whether it will be able to continue as a separate case.
Two of the three causes of action in the complaint are essentially identical to the earlier case: that SPD’s use of crowd-control weapons has prevented the plaintiffs from free exercise of their First Amendment rights and subjected them to excessive force in violation of the Fourth Amendment. But the third one is a new and unique twist: the plaintiffs argue that protesters have been forced to spend money to purchase gear to protect themselves from SPD’s use of tear gas, pepper spray, blast balls and rubber bullets. That, they argue, creates an Equal Protection clause violation in that only protesters with the financial resources to purchase protective gear are able to exercise their First Amendment right to protest.
The plaintiffs have filed a motion for a temporary restraining order (TRO) that is virtually identical to the one that ACLU/BLM initially requested: enjoining SPD from using tear gas, blast balls and pepper spray.
The case was originally randomly assigned to U.S. District Court Judge Richard Martinez, but that wasn’t to last. Yesterday afternoon the city filed a “Notice of Related Case” pointing out that this case overlapped heavily with both the consent decree overseen by Judge James Robart, and the ACLU/BLM case overseen by Judge Richard Jones. The city also noted that Judge Jones had already ruled on the TRO request for ACLU/BLM, and Robart had enjoined the City Council’s ban on crowd control weapons that is also nearly identical to the TRO being requested in this new case –strongly implying that justice would be better served if the case were reassigned to either Robart or Jones rather than adding a third judge to the mix. And it worked: this morning the case was reassigned to Jones.
This morning the City filed another notice with the court, letting it be known that it intended to respond to the plaintiffs’ motion for a TRO. That notice reiterated the significant overlap between this case and the ACLU/BLM case, accusing the plaintiffs of trying to re-litigate the rulings already made by Robart and Jones, and citing Supreme Court case precedent rejecting “repeated litigation of the same issue as long as the supply of unrelated defendants holds out.” The city is clearly setting up an argument either to join this case with the BLM/ACLU case, or to dismiss it outright (probably the former since the BLM/ACLU case is far from done). To that end, in its notice this morning the city requests a status conference “to discuss Plaintiffs’ requested relief in their motion for entry of TRO.”
If it weren’t for the plaintiffs’ unique third claim, it would be a no-brainer for Jones to join the cases and dismiss the new motion for a TRO as duplicative of his earlier one. But on the other hand the new claim, while creative, is not that strong. The plaintiffs base it on the precedent of a “poll tax” in which the State of Virginia imposed a $1.50 tax, the payment of which was a precondition of voting. The Supreme Court found that to be a violation of the Equal Protection clause. But in the absence of a direct, stated requirement by the city that protesters are required to wear protective gear in order to participate in public demonstrations, it’s a bit of a legal stretch to equate the two. Even if Judge Jones were to allow the plaintiffs to make their full case for a violation of the Equal Protection clause, in order to grant the TRO based on that claim he would need to find that the plaintiffs were likely to succeed on the merits of their argument — a tough sell. Equal Protection Clause claims require proving that it is in fact “state action” and not just individuals acting on their own volition, and the case law for that requires a showing that the action is the result of the policy, practice, or custom of the government. The plaintiffs claim that it is in their brief, but cite little evidence to back up that claim.
Expect the city to file a response asking Jones to dismiss the third claim, join the two cases together, and deny the motion for a TRO as duplicative of his earlier order.
In the meantime, the plaintiffs are pushing for urgency: their attorney filed a declaration this afternoon highlighting a protest scheduled for tomorrow to coincide with the City Council’s vote on budget amendments that would reduce SPD’s budget and divert funds to community-led programs. The declaration also notes that the ad circulating for the protest shows a protester wearing a gas mask — lending credence to their argument that such protective gear is required.
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