Catching up on the court cases: August 20, 2020

So many court cases, so little time to read all the filings. Here are updates on four high-profile cases involving the City of Seattle that all saw action this week.

SPD’s Subpoena of protest footage from local media companies

Last week the media companies filed their notice that they would appeal the trial court’s ruling directly to the state Supreme Court. This week, they filed their “Statement of Grounds for Direct Review” (i.e. what the issues are on appeal, and why the Supreme Court  should take it directly rather than let it go through the Court of Appeals first). They also filed a motion for an emergency stay to  prevent having to turn over footage now. The trial court judge had issued a short-term stay until August 21, long enough for the media companies to ask a higher court for a stay.  Today the Commissioner of the Court, Michael Johnston, granted the stay, but making it clear that the Court has not yet decided whether to hear the case. They stay will be in place until the Court further orders.

The Commissioner’s decision throws some shade on SPD’s case. It says that SPD’s assertion that the footage it seeks will be “highly material and relevant” or “critical and necessary” seems “uncertain, if not speculative.” It also questions whether SPD lived up to its responsibility to avail itself of all reasonable alternative means of obtaining the information, whether the media has a better quality image of suspects than what has already been published, and whether the public has a “compelling” need for the information. It also raises a point that the media failed to: that the weapons stolen from SPD are not particularly unique in “a country flooded with firearms, stolen and possessed legitimately, including semiautomatic pistols like the Glock and military style weapons like the M4.”

The decision also goes off on a tangent (in a footnote, no less) on how SPD has characterized the weapons, taking the department to school — and firing a parting shot about SPD’s carelessness with military-grade weapons:

SPD’s description of the AR-15 as the “less sophisticated cousin” of the M4 is not well taken. Response at 4. The AR-15 described in this case is a civilian or law enforcement version of the Vietnam War era M16 infantry rifle. The M4 is a lighter and shorter (carbine) successor to the M16 and currently is the standard issue infantry weapon in the United States military and, as the facts of this case illustrate, is used by law enforcement agencies, including SPD. The AR-15 and M4 fire .223 Remington or 5.56 x 45 millimeter NATO ammunition fed from a detachable box magazine (usually 20 or 30 round capacity). As a law enforcement tool, the AR-15 arguably is no less sophisticated than the M4. One might wonder why these military grade weapons were left in unoccupied police vehicles in the midst of a violent public disturbance, but this is not the place to discuss that question.

While it’s safe to assume that the Commissioner discussed the case at least with the Chief Justice, we can’t assume that the nine justices share his skepticism of SPD’s case. Also, we need to remember that today’s ruling is only about granting a stay of the lower-court’s order, for which the plaintiffs only needed to establish that there are “debatable” issues in the case — a much lower bar than proving that they are likely to succeed on the merits of their case.

Johnston did acknowledge the legitimate concerns for stolen weapons in circulation, and said that the Court would make a decision “at the earliest opportunity” as to whether to take the case directly. Its next conference (where it would customarily make such decisions) is scheduled for September 8. Before then, the city (on behalf of SPD) will get to make its case for why the lower court ruled correctly.



Fort Lawton

You may recall at the end of June the parties filed a joint status report listing a number of issues, including that plaintiff Elizabeth Campbell had not enlisted a new attorney — and her last attorney had apparently incorrectly served a complaint — twice — on the U.S. Army as part of adding it to the case. The same day, the city filed two motions: one to dismiss Campbell’s front organization, the Discovery Park Community Alliance, for lack of an attorney (individuals can represent themselves in federal court; organizations are required to be represented by an attorney); and another to either set a deadline for Campbell to properly serve papers on the U.S. Army, or alternatively to dismiss the case for failure to prosecute.

On July 28, Judge Coughenour granted both motions, dismissing the Discovery Park Community Alliance, and giving Campbell fourteen days (i.e. to July 11) to correctly serve papers on the Army.

Two days ago (a full week after the deadline), Campbell filed a rambling declaration with the court, arguing that she has been seriously ill and unable to see to matters in the case; further, that her it’s all the fault of her old attorney, she only now has finally figured out what she was supposed to do, and she has directed her old attorney to correctly serve the papers. In an amusing irony, Campbell accused the city of using the issue of whether she has correctly served papers on the U.S. Army as a stalling technique to drag out the proceedings.


Today the city filed a renewed motion to dismiss the case for lack of prosecution, pointing out not only that she missed the deadline and has still not correctly served papers on the Army, but that she has a history of claiming to be seriously ill as an excuse for missing court deadlines.


The motion is noted for September 11, giving Campbell a bit more time to try to convince Judge Coughenour that she finally has her act together.


CHOP businesses and residents’ lawsuit

On July 23, the city filed a motion to both dismiss the case and deny certification of a class of plaintiffs. It argues that the plaintiffs have failed to show that the city directly caused harm at the CHOP (versus other parties), and that because the variety of plaintiffs have incurred different harms, class certification is not warranted.

Earlier this week the plaintiffs filed their response. In it they reiterate their argument that the city facilitated, endorsed, and encouraged the CHOP, and was indifferent to the harms being done to businesses and residents. As for the class certification, they argue that all of the potential plaintiffs suffered harms stemming from the same action by the city, thus justifying the class.

We may hear as soon as tomorrow how Judge Thomas Zilly intends to move forward. Both sides have requested that he schedule oral arguments; however, if he feels that he has enough information already he may simply rule on the motion.


Benton vs. City of Seattle: the “other” SPD crowd-control weapons case

While most of the attention has been on the ACLU/Black Lives Matter case that has lead to a preliminary injunction restricting SPD’s use of some crowd-control devices — and ten days ago an updated injunction and a stay on the case pending a separate ruling on the City Council’s ordinance banning crowd-control weapons altogether — you may recall that there is a parallel case asserting many of the same claims on behalf of a different set of protesters, along with a unique claim: that the city’s actions violated the Equal Protection clause of the Constitution by forcing protesters to buy protective gear in order to feel safe protesting. The plaintiffs in that case asked Judge Richard Jones (the same judge hearing the ACLU/BLM case) to issue a broader injunction, much closer to the broad ban in the Council’s ordinance than to the carefully-tailored ban that Jones had already issued. On August 10, Jones denied the motion, finding that given the injunction he had already put in place the plaintiffs had not shown that the balance of equities tipped in their favor or that what they were asking for is in the public interest.

On Monday, the plaintiffs filed a motion to reconsider, arguing that Judge Jones had erred in his decision — but for the most part just reiterating the argument they had already made and that Jones had rejected. They cited Sunday’s riot and police response as further evidence that the police needed to be immediately reined in.

Twenty four hours later, Jones denied their motion to reconsider, in a written ruling seething with annoyance, reminding the plaintiffs of the issues with their original motion, and pointing out the glaring deficiencies in their justification for a motion to reconsider:

Besides a failure to show new facts, Plaintiffs have not cited new legal authority. Indeed, they have cited no authority at all: Plaintiffs do not cite a single case in their motion.

The next move in this case is probably the city’s: don’t be surprised to see it ask the court to dismiss the equal-protection claim and then to join this case with the ACLU/BLM case.




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