The city has a lot of legal oars in the water at the moment. Here’s another update with the latest developments.
BLM/ACLU – crowd control weapons
This morning, Judge Jones issued an order codifying some decisions that he made in a hearing Tuesday morning, and clarifying the rules around video evidence.
The city will need to submit its response brief to the contempt allegations by November 2. The plaintiffs will then have 7 days to file their reply, and then the city will have seven days to file a surreply if it so chooses. Oral arguments are scheduled for November 18. There will be no live testimony; Jones will decide the matter based upon written and video submissions, briefs, and oral arguments. Jones also bifurcated the process into two parts: first he will decide whether the city is in contempt, then if he decides that it is he will have separate proceeding to decide what sanctions should be imposed.
At issue was how much video evidence the city would need to turn over to the plaintiffs at this point, since a full-blown discovery process is generally not called for in a hearing on a contempt charge like this one (versus when the case ultimately goes to trial). For any video the city submits to the court as part of its response, it offered to additionally give the plaintiffs the 30 seconds immediately before and after the clip; the plaintiffs ideally wanted the entire video, but were willing to settle for five minutes before and after. This is an issue because SPD is required to screen and redact any confidential footage from the videos before turning them over, which would potentially include inadvertent body-cam footage of the officers’ computer terminal as they bring up information about a suspect, or audio footage where officers verbally communicate confidential information. The city argued that with the expedited schedule for the contempt proceedings, there is a physical limit to how much video footage they can review, screen and properly redact in the given time. In the end, Jones ordered the city to turn over 60 seconds before or after each video clip, and five minutes before and after each surveillance video clip from SPOG Headquarters that the city submits. The plaintiffs also asked for copies of “any other relevant video evidence that Defendant discovers in its review of videos even if it chooses not to include this video evidence in its submission to the Court,” but Judge Jones denied that request.
OPMA Violation — Head Tax Repeal
Earlier this week, the City and Arthur West signed a settlement agreement over West’s claims that the City Council and Mayor violated the Open Public Meetings Act in 2018 when it arranged behind the scenes for a vote to repeal the “Head Tax.” This follows a defeat for the city last month when a state Court of Appeals reversed a lower court ruling dismissing the case; the appeals court concluded that there were genuine issues of material fact that needed to be resolved at trial. West will receive a payment of $35,000 from the city, which will cover his legal and court costs, and the case will be dismissed. West told the Seattle Times, “The point’s been made.”
Interestingly, West represented himself in the case.
Young vs City of Seattle — emergency order banning possession of firearms
Also this week, plaintiff Spencer Young, who is suing the city (also representing himself) over Mayor Durkan’s emergency order during the civil unrest earlier this year because of its provision that prohibited the possession of firearms, filed a response to the city’s motion to dismiss the case. The city had argued four reasons why dismissal is appropriate:
- The case is moot because the Mayor has since rescinded the executive order;
- The plaintiff does not have standing to sue;
- The Second Amendment and the state law that preempts all local firearms regulation are secondary to the Mayor’s emergency powers;
- Preemption applies to laws and ordinances, not to executive orders.
Young’s response:
- Cases such as this are moot only if the offending action isn’t repeatable, and in this case it clearly is – the Mayor could issue a new executive order prohibiting firearm possession during the next violent protest.
- The city had argued that Young lacks standing because in his complaint he cited the wrong city ordinance under which the Mayor’s executive order was issued. However, this is a completely disingenuous argument on the city’s part. Young cited SMC 10.02.020(A)(9), which states that under a civil emergency the Mayor may issue an order “prohibiting the carrying or possession of a firearm or any instrument which is capable of producing bodily harm and which is carried or possessed with intent to use the same to cause such harm, provided that any such order shall not apply to peace officers or military personnel engaged in the performance of their official duties.” The city instead argued that the Mayor’s executive order was issued under the catch-all SMC 10.02.020(A)(15), “Such other orders as are imminently necessary for the protection of life and property.” Young argues that he should be able to amend his complaint to cite the correct provision of the ordinance.
- Young admits that the Mayor does have the legal authority to restrict the possession of firearms and restrict personal liberties in emergency circumstances, but argues that the Mayor’s order was unreasonable, for several reasons. First, he says that it was overbroad, without appropriate boundaries on the prohibition of possession of weapons — and he has a point. The order covered a large swath of the city, from Elliott Bay to 15th Avenue East, and from I-90 to Mercer Street. And it defined weapons as “including, but not limited to: rocks, bottles, pipes, clubs, chains, sharpened signs, shields, gas, road flares, torches, paint balls, light bulbs, any incendiary devices, pry-bars, skateboards, balloons filled with liquid, dimensional lumber with a dimension greater than 1/2 inch or any other objects which can be used for infliction of bodily harm or damage to property.” God forbid you ride your skateboard to the store in South Lake Union to buy a light bulb; then you’re in possession of two weapons. And the order makes no distinction between possession of a weapon in public or in private; defending oneself at home, during a riot, would also be illegal.Second, Young argues that the contextual justifications that the city offered for the Mayor’s order, “including assaults on Seattle Police Officers with rocks, bottles, and other projectiles, burning of Seattle Police Patrol cars, theft of a Seattle Police rifle, Molotov cocktails were made and objects thrown at Seattle Police HQ, reports of a man with a gun, and more”, were illegal already, even without the Mayor’s order, and it was not needed to prevent those acts.
- The city argued that the state law preempting local firearm regulation does not apply to “executive action,” but only to legislative action. Young argues that such an argument creates an enormous loophole in pre-emption law, and points out that the city has already conceded that the Mayor’s executive order was issued under the authority granted to her under SMC 10.02.020. If a city can avoid pre-emption by passing an ordinance granting the pre-empted authority to the Mayor though an executive order, then state pre-emption is essentially meaningless.
Young’s arguments under 1, 2 and 4 are pretty strong. The weakness in his argument is #3 – courts generally give enormous latitude to emergency executive orders to temporarily curtail Constitutionally-protected rights, and are loath to second-guess the executive’s judgment as to what constitutes a public-safety emergency.
The city will have a chance to reply, and then we’ll see what the court decides.
Seattle, Portland, NYC vs Trump Administration: “anarchist jurisdictions”
Today the cities of Seattle, Portland OR, and New York City jointly sued the Trump administration over its designation of the three cities as “anarchist jurisdictions” and directive to withhold federal funding.
Apparently the Trump Administration doesn’t recall that it already tried to withhold federal funding to so-called “sanctuary cities,” and was told in no uncertain terms by the courts that doing so violated the Spending Clause of the U.S. Constitution. Congress controls the purse strings, and the executive branch may not add conditions on federal funding unless explicitly granted such authority by Congress — and even then, the conditions must be related to the intended purpose of the money.
The upcoming election results may decide this case before the courts do, but either way the Trump Administration will almost certainly lose.
The case was filed in U.S. Court here in Seattle, so we will have a front-row seat as it plays out.
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