There has been a flurry of activity this week, as the wheels of justice creak forward in trying to resolve the various legal challenges to SPD’s policies for use of crowd-control weapons. Let’s get caught up.
We begin with Judge James Robart and the consent decree. As you may recall, the DOJ requested, and Robart granted, a temporary restraining order (TRO) blocking the implementation of the City Council’s ordinance banning SPD’s use of most crowd-control weapons. At the time, Robart characterized it as “very temporary” and told the city and the DOJ to confer and figure out a go-forward plan by August 5. Yesterday the two parties filed a brief laying out their plan.
The city and DOJ have jointly asked Robart to extend his TRO until September 18th — after the city’s triad of police accountability bodies (the OPA, OIG and CPC) deliver their recommendations on August 15th on what SPD’s crowd-control weapons policy should be, and the city files its response to the recommendations on August 22. After reading those, if the DOJ still feels that it needs the TRO, then by August 27th it will request the court to convert it into a preliminary injunction; the city will respond by September 8th, and the DOJ will reply by September 11. That gives Robart a week to decide, before the extended TRO would run out on the 18th.
Assuming Judge Robart grants the extension — which he likely will — then the big event will be next Friday when the OPA, OIG and CPC release their policy recommendations. UPDATE: Robart granted the extension.
Next we turn to the lawsuit by Black Lives Matter and the ACLU over use of crowd-control weapons in early summer and then again on July 25th. When last we looked in, Judge Richard Jones had ordered an evidentiary hearing on the plaintiffs’ motion to hold the city in contempt for allegedly violating Jones’ preliminary injunction that placed restrictions on SPD’s use of crowd-control weapons. Jones scheduled the five-day hearing to begin on August 26th, and sent the parties off to confer over the pre-trial logistics. On Tuesday the they filed a joint statement on procedural matters, to update the court on where things stand. They have agreed (with Jones’ urging) to use a “hybrid” approach to witness testimony, availing themselves of both live witnesses during the hearing and sworn declarations delivered well in advance. The plaintiffs’ declarations were to be delivered to the city yesterday — 14 in total were filed with the court yesterday, in addition to the approximately 30 it had already filed based upon the events of July 25 — and the city will deliver its to the plaintiffs next Wednesday (the city gets a week head start because it needs to know exactly what to defend itself against). In addition, both sides have agreed on the rules of engagement for deciding in advance on the authenticity and admissibility of video evidence.
The one sticking point is still the collection of body-worn camera videos: the plaintiffs want access to as much as possible (as of last week, SPD had identified 1,394 separate videos from July 25th) but SPD is still reviewing it all and wants to limit it to relevant videos to the charges being leveled against it. Of course, how one defines “relevant” is a subjective matter, and the plaintiffs obviously aren’t happy with deferring to SPD’s discretion, despite assurances from SPD that won’t withhold potentially relevant video segments.
And that brings us to the most recent lawsuit, filed earlier this week, arguing that SPD’s use of crowd-control weapons is forcing protesters to spend large amounts of money on their own protective gear in order to exercise their First Amendment right to demonstrate.
Yesterday the city filed its response to the plaintiffs’ request for a TRO that largely mirrored the one Judge Jones already rejected in the Black Lives Matter/ACLU case back in June. In its response, the city argues that the plaintiffs can’t re-litigate a case already heard and decided just because they don’t like the decision. Barring that, they assert that this new case doesn’t meet the standard for a TRO. Specifically, it argues that this group of plaintiffs’ new claim — that the need to buy protective gear deprives people without means their right to protest and is thus a violation of the Equal Protection clause — fails as a matter of law because it requires the plaintiffs to demonstrate that the “government acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class.” It goes on to reject the plaintiffs’ citing of the poll tax ruling in Harper v. Virginia Board of Elections, because in that case the government required payment of the tax before it permitted voting, whereas in this case SPD made no requirements regarding protective equipment and doesn’t grant permission for individuals to protest — and they point out that both the plaintiffs and thousands of other individuals have protested at events in Seattle without protective equipment.
Judge Jones has directed the plaintiffs to file their reply by 5pm tomorrow (Friday), at which point he will decide whether he will schedule a hearing or simply issue a ruling. UPDATE: the plaintiffs have filed their reply.
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