This afternoon, U.S. District Curt Judge Thomas Zilly issued his first substantive opinion in the lawsuit filed by businesses and residents neighboring the CHOP. The lawsuit alleges that the City of Seattle violated their property rights and denied them equal protection under the law by allowing the CHOP to exist as a lawless area, and in fact supporting its existence.
The city had asked the court to dismiss the case entirely, and short of that to deny a class certification for plaintiffs. Judge Zilly’s ruling on those requests is a mixed bag in terms of what he granted and denied, but his ruling also signaled that the city will have a difficult time prevailing in the end.
It’s worth emphasizing that this case is in a very early stage: discovery has just started, and that alone will be a lengthy and complicated process. Nevertheless, the city argued that in their complaint the plaintiffs failed to state any claims that they are allowed to sue the city over. There are four main claims alleged:
- The city violated the plaintiffs’ procedural due process rights to a protected property interest in the full use and enjoyment of their property;
- The city violated their substantive due process rights by placing the plaintiffs in danger;
- The city participated in an unlawful “taking” of the plaintiffs’ property rights;
- The city failed to provide equal protection under the law.
An overarching legal question, and the heart of the city’s argument for why the case should be dismissed, is that the city generally can’t be held liable for the illegal actions of private parties (i.e. you can’t sue the city any time someone breaks into your car). The exception to that rule, however, is when the city actively supports the illegal activities. In this case, the plaintiffs argue that the city did exactly that: it provided barricades for the CHOP participants to block off roads and sidewalks; it provided a medical tent and medical supplies; and it had clearly stated “no response” policies for emergency calls to the CHOP area where life was not at risk. Judge Zilly found that to be a plausible allegation, given the evidence so far, and at this stage in the case articulating a factually plausible allegation is the standard that must be met for claims listed in a complaint.
Turning to the specific claims:
Procedural due process: the judge found that the plaintiffs made a plausible allegation that “the city’s affirmative actions in support of CHOP caused Plaintiffs to suffer a temporary deprivation of those interests.”
Specifically, Plaintiffs allege that from June 8 to July 1, 2020, CHOP participants used City-provided barriers, with the City’s approval, to block access from their properties to streets, sidewalks, and other public rights-of-way. Many of the Plaintiffs also allege that because of CHOP’s existence, and the rampant crime and vandalism that ensued, they were deprived of all (or nearly all) economic use of their properties. At least one Plaintiff alleges that CHOP participants physically invaded its premises by setting up, without permission, a “makeshift medical tent,” , to which the City provided beds and medical equipment. Those allegations are sufficient to support Plaintiffs’ claim that they were deprived of state-created property interests…
Plaintiffs further allege that “the City provided Plaintiffs with no notice or opportunity to be heard before or after depriving Plaintiffs of the freedom of movement, the right to access their properties, the right to use their properties, and the right to exclude others from their properties.” “[I]n the absence of a sufficient countervailing justification for the” City’s actions, the Court concludes that Plaintiffs plausibly asserted a procedural due process violation.
Substantive due process: courts have found that a government may violate substantive due process if it “affirmatively places a plaintiff… in danger by acting with ‘deliberate indifference’ to a known or obvious danger.'”
To prevail on such a theory, known as the “state-created danger doctrine,” a plaintiff must show that (1) “the officers’ affirmative actions created or exposed her to an actual, particularized danger that she would not otherwise have faced,” (2) “the injury . . . suffered was foreseeable,” and (3) “the officers were deliberately indifferent to the known danger.”
The plaintiffs have alleged that the city-supplied barricades and the SPD/SFD “no response” policy meets all three parts of this test, and Judge Zilly agreed that this is a plausible allegation.
Unlawful taking: Courts have found that a property owner’s access to an abutting public right-of-way is a protected property right. In this case, the plaintiffs had argued that the city-supplied barricades denied access to the public right-of-way and led to “the deprivation of all or nearly all economic use of their properties,” even though it was temporary. Since the city supplied the barricades, it was “causally related” to the alleged deprivation of the property rights.
Equal protection under the law: the plaintiffs argue two violations here: first, that they were not given the same protections as businesses and residents in other parts of the city; and second, that the CHOP participants were deemed to have a viewpoint favored by the city and were granted special status where many laws didn’t apply to them. In the first case, the judge found that it wasn’t a true “apples to apples” comparison required for finding an equal protection violation, since there wasn’t another CHOP elsewhere in the city where businesses and residents were treated differently from the plaintiffs. In the second case, the judge decided that the plaintiffs had not sufficiently established that there was a viewpoint difference between themselves and the CHOP participants (and in fact the plaintiffs’ own statements said that they shared the viewpoint of the CHOP participants). For those reasons, he found the allegations of equal protection violations to be inadequate, and dismissed them. However, he did give them permission to amend their complaint in the next two weeks if they can find a more plausible argument for an equal protection violation.
As for the class action certification, Judge Zilly decided that it was too early; he will wait to make a determination until after discovery is complete, to allow for the plaintiffs to uncover additional facts and evidence that might show commonalities across the proposed class members.
In the end, the judge dismissed one of the four claims, allowed the other four to continue, and put off deciding on class certification.
Again, it’s important to remember that it’s early in the case. Judge Zilly didn’t decide today that the allegations are true; he simply said that with what is already known, they are factually plausible and if true would meet the legal standard to hold the city liable. Still, it’s a very bad omen for the city, because it’s incontrovertible that the city supplied barricades, a medical tent and medical supplies, and that it had “no response” orders in place for SPD and SFD. With the judge already finding the allegations based upon those facts to be plausible, it looks like the table is set to find the city legally liable for the claims of the plaintiffs. For the currently named plaintiffs, that could end up costing millions of dollars; if the class is eventually certified (far from a sure thing), the price tag could easily be in the tens of millions. The city has liability insurance so it won’t go bankrupt, but there will still be a deductible before the insurance kicks in, so in a time when the city is already in a severe budget crunch, this is one more big bill to pay.
Assuming the city doesn’t immediately appeal the ruling — a spokesperson for the City Attorney’s Office said that they are still evaluating it — the case now proceeds to the discovery phase. The plaintiffs have already submitted their initial list of requests to the city.
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I am thinking the rest of Seattle could join the fray because:
– Seattle management allowed public property to be used and abused for private purposes;
– Seattle management aided in the destruction of public property;
– Seattle management ratified illegal acts by failing to act against them;
– The things mentioned worked as damages, both tangible and intangible, including, but not limited to millions in property damage, loss of the people’s ability to pursue happiness, etc.;
– Violation of RCW 42.20.100;
– . . . .
What you are in essence suggesting is that if the judge finds that the city actively supported the CHOP, it’s strong grounds for recall of the Mayor and perhaps also other city officials.
Courts [supposedly] issue fines and penalties to deter future bad behavior. Public agencies are incapable of good or ill, except through the acts of their agents. Similarly, agencies are not bothered by anything, including fines. Their agents, on the other hand, are, if the fines hit their own pockets, rather than being paid by the citizens all about them.
In short, these agents who are both incompetent and who act knowingly and willfully in ways that damage the people they are obligated to serve need to be made fearful of being incompetent, corrupt, uncaring, and so on. The need to be named in their private capacities for acts and omissions outside their scope of authority.
They need to be made to hurt financially. Some may need to do a bit of time picking up litter along some road.
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