This morning U.S. District Court Judge Richard Jones held a status conference with attorneys for the ACLU, Black Lives Matter Seattle-King County and the City of Seattle. They met to hammer out some of the details of an evidentiary hearing on whether the city should be found in contempt of Jones’s preliminary injunction restricting SPD’s use of crowd-control weapons. But those details, as it turns out, are messy.
There’s a bit of deja vu here: the ACLU and BLM filed a similar motion to hold the city in contempt at the end of July after a particularly violent clash between protesters and police on July 25th. Judge Jones ordered an evidentiary hearing on the contempt charge in order to allow the city to present a defense, but instead the plaintiffs and the city negotiated some changes to the injunction and the motion to hold the city in contempt was set aside. But after additional clashes on August 26, September 7, September 22 and September 23, the plaintiffs filed a new motion, once again asking the judge to hold the city in contempt and place new, tighter restrictions on SPD’s use of crowd control weapons.
So the parties are back to trying to sort out the specifics of an evidentiary hearing, and many of the issues that never got resolved the first time are once again being argued. Several are substantive, revolving around a basic legal question of what it means for the city to be in contempt — because “the city” didn’t use so-called crowd control weapons on protesters; individual officers did. There is a substantial body of case law saying that to hold the city responsible for individual employees’ actions, a plaintiff needs to show that the actions were based upon an established practice or policy of the city.
The city claims that it has been doing its part: it sent all sworn officers an email with the text of the injunction, it reminds them of the details of the injunction at the shift briefing before officers are deployed to a protest event; and it investigates officers who allegedly violate the injunction. Is that enough to show that the city’s policy and practice does not violate the injunction, or does it need to do more? And in doing more, does it need to present a defense for each of the allegations of officer misconduct? Does the fact that the plaintiffs allege violations at four separate incidents over the course of a month show a pattern or practice? Does it need to be multiple incidents, or is a single incident enough to provide a contempt charge? The plaintiffs allege that during one incident a series of 25-30 flash-bang grenades were deployed into a crowd; does that kind of coordination rise above individual officers’ action and establish either a pattern of behavior or coordination at a higher level within SPD?
The plaintiffs also object to SPD behavior in some incidents that are clearly outside the scope of the injunction as written — for example the well-documented incident of an SPD bicycle officer walking his bike over the head of a protester who had laid down on the ground in front of a group of officers. It’s obviously a dangerous and unprofessional action by the officer (and is being investigated for disciplinary action), but it has nothing to do with the crowd-control weapons restrictions in the injunction.
Prior to today’s status conference, the city was also wondering whether it needed to address the specific requests for relief that the plaintiffs made. This was one of the few questions that got an answer today: Judge Jones said that at this point the focus of the evidentiary hearing is on determining whether the city is in contempt, and if he finds that it is there will be additional proceedings to determine appropriate sanctions.
Judge Jones mostly balked at these issues, repeatedly telling that city that they were asking him for an advisory opinion that he was unwilling to provide and that he would not be telling them how to present their defense. He was basically saying that the city is free to make whatever legal argument it wants about what would constitute contempt, and then to argue whether the evidence presented meets that bar. The plaintiffs will do the same, he will weigh both sides, and then he will rule.
There are also logistical and timing questions, for which the judge was more forthright with his views. The city would like as much time as it can get to prepare for the evidentiary hearing, including if possible allowing the OPA investigations into the incidents to conclude (which can take up to six months). Judge Jones made it clear that he would not allow that much time, and that his preference was more towards a few weeks. Part of the reason for that, he explained, is that the U.S. District Court is in the process of re-opening from its COVID-19 closure, and he now has three long delayed one-week criminal trials scheduled back to back beginning the week of November 30. So if the evidentiary hearing can’t be wrapped up by then, it will see a long delay — probably into 2021.
To that end, Judge Jones also pushed for a format for the hearing that would expedite the process, relying as much as possible on written declarations and affidavits and minimizing live testimony — especially redundant witnesses testifying about the same incident. In fact, he asked both sides to consider whether they could skip a live hearing altogether and handle the whole process with written evidence, submitted video, and written briefs.
Not surprisingly, the question of discovery came up again, as it did with the first motion to hold the city in contempt. The plaintiffs want broad access to body-cam footage from the officers at the incidents. The city, however, wants to narrow that down, both to limit the amount of time and effort it needs to put into identifying and reviewing all the footage and also to ensure that it doesn’t become a “fishing expedition” that makes it much more difficult to mount a defense.
In an amusing aside, Jones expressed his displeasure with the plaintiffs’ submission of links to videos posted on Twitter as evidence of SPD’s wrongdoing. He made it clear that he does not have a Twitter account, will not be obtaining one for the purposes of viewing evidence in this case, and wants any videos that either side submits as evidence to be provided on a flash drive. So the parties can copy and submit videos that first appeared on Twitter, Instagram, or other social media sites, but Judge Jones will not be surfing social media as part of his deliberative process.
The judge sent the two parties off to confer on many of the issues raised today in the hopes that they can find agreement on some of the issues, narrow the scope of the questions around what constitutes contempt, and jointly propose a path forward that expedites the evidentiary hearing. He ordered the parties to submit a joint status report Monday afternoon, and scheduled another status conference for Tuesday morning.
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