Judge holds city in contempt for violations of crowd-control injunction

This morning U.S. District Court Judge Richard Jones issued a highly anticipated ruling in the contempt charges against the City of Seattle for SPD’s alleged violations of the judge’s injunction restraining the police department’s use of crowd-control weapons.

The allegations raised by Black Lives Matter and the ACLU — their second attempt at contempt charges — pointed at SPD’s actions on four separate dates: a vigil on August 26; a protest outside SPOG headquarters on September 7; and two nights of protests on Capitol Hill on September 22 and 23.

Jones began his ruling by narrowing down the activities in question substantially; the plaintiffs had argued that SPD’s general actions beyond specific use of the crowd-control weapons mentioned in the injunction were relevant context, but Judge Jones declined to go there. For the remaining incidents, he broke them out into three categories:

• uses of crowd-control weapons that are clearly compliant with the injunction;
• uses that are clear violations of the injunction;
• uses that are inconclusive, either because there was insufficient evidence submitted to the court to know what happened, or the circumstances as demonstrated in the evidence don’t meet the standard of “clear and convincing evidence” that the injunction was violated.

After reviewing all of the evidence, Jones found four uses were clearly compliant, and four were clear violations. All the other cases — the vast majority — he found to be inconclusive. Of the violations, one was for the use of OC spray, and three were for deployments of blast balls. However, he made clear that he was troubled by the number of incidents that were inconclusive: despite being restricted to ruling on whether individual allegations met the “clear and convincing standard” argument, having so many uses of less-lethal crowd control weapons where it was unclear whether the use was justified was deeply problematic for him.

Jones found no violations at the August 26 vigil/protest.

He found two from the September 7 protest:  one misuse of OC spray, and one misuse of blast balls.

Here’s the video of the OC spray incident, where an officer rides his bicycle up behind protesters and sprays them without clear provocation (warning: these videos may be disturbing).

And here’s the video of the blast ball violation, where the same officer (Sgt. Didier) threw it indiscriminately into a crowd.

Jones found one blast ball violation at the September 22 protest, when a crowd of protesters were stalking a police cruiser as it tried to back away from the crowd and a bicycle officer threw a blast ball into the crowd to create a separation. The judge found that there was no a threat of imminent harm to the officers, a condition of the injunction for SPD officers to use blast balls. Here’s the video:

He also found one blast ball violation at the September 23 protest, where once again an officer threw a blast ball indiscriminately into a crowd of protesters. Video:

 

Jones made clear in his ruling that these violations are not “technical violations”:

The violations above are clear, in part, because they fundamentally defy the Court’s Orders and the purpose behind them. They were not at the boundary, overstepping ever so slightly or “technically.” They violated the substantive terms of the Orders by a clear and convincing margin.

He does give SPD credit for more restraint than they showed at the beginning of the summer:

Surely, compared to its uses of less lethal weapons earlier this year when this action was first brought, SPD’s uses at these four protests appear to be more restrained. Deployments generally appear to be more targeted and proportional than before. And SPD on its own volition has informed its officers of this Court’s orders on multiple occasions. Under the amended preliminary injunction, the City had to distribute a copy of the order to all SPD officers via email within 24 hours of entry, which it did. Dkt. # 110 ¶ 6(6); Dkt. # 112. But the City has gone beyond that. Before each shift in which officers are expected to provide crowd control management, SPD holds mandatory briefings, reminding officers of the contents of the Orders and their duty to follow them. Dkt. # 148 ¶¶ 3, 14; Dkt. # 147-1 at 20. Further, SPD has not used tear gas of any kind on any of the four protests. Dkt. # 148 ¶ 35.

But the Court cannot ignore the clear violations above. Substantial compliance shields a party from a few technical violations when that party has made every reasonable effort to comply with a court order. Again, the violations here are not technical; they are substantive. And the City has not shown that it has made every reasonable effort to comply.

Jones then unveils his math on weighing the compliant cases, the violations, and the inconclusive cases to determine whether the city has been “substantially compliant”:

Some might say that four clear violations—out of four days of protests and countless uses of less lethal weapons—must surely be insufficient to “vitiate” the City’s otherwise substantial compliance. But this is misguided. The relevant comparison is not between the four clear violations and every single deployment. (For most deployments, the Court lacks sufficient basis to deem them either a compliant use or a violation.) For substantial compliance, the appropriate comparison must be between the times the City was compliant and the times it was not compliant. On that score, the Court has found that the City was clearly in compliance with the Orders four times and was clearly not in compliance with the Orders four times. Put that way, the four clear violations are significant and must be given their due weight.

And he refuses to excuse the violations under a “good faith” interpretation:

In the civil contempt context, contempt need not be willful, and there is no good faith exception. Dual-Deck, 10 F.3d 693 at 695. But a party should not be held in contempt if its actions appear to be “based on a good faith and reasonable interpretation” of a court’s order. Id. (quoting Vertex, 689 F.2d at 889).

Like substantial compliance, the clear violations above are clear, in part, because they plainly violate the text of the Orders. No good faith or reasonable interpretation could bring such violations under the Orders’ ambit. For example, no good faith or reasonable interpretation of the phrase “[less lethal weapons] shall not be deployed indiscriminately into a crowd,” Dkt. # 110 ¶ 6(7), could save the City from indiscriminate deployments of blast balls into crowds, see supra Section IV.C.iii.2. The same is true for the remaining violations.

And he weighs in on one last legal point, one that the City of Seattle relied on heavily in its defense: whether the city can be held responsible for the behavior of individual officers. Back at the beginning of the case when the two sides were arguing about the injunction itself, the city asserted that it had protection under case law precedent — known as the Monell standard — that the city can’t be held liable for actions of individual officers unless it can be shown that the employees were following the stated custom or policy of the city. For the contempt charges, the city argued it again — but it was unable to find even a single citation for the Monell standard applying to a contempt charge. And this time, Judge Jones didn’t buy it, in part because the injunction language that the city agreed to explicitly says that it applies to both the city and individual officers.

The City’s approach, though novel and innovative, is nowhere to be found in the “well-settled” civil contempt case law. F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999) (holding that the “standard for finding a party in civil contempt is well-settled”). Moreover, whether an individual officer’s actions may be fairly imputed to the City is not at issue. Both Orders—stipulated to by the City—provide that the City “including the Seattle Police Department and any other officers” are enjoined by the terms of the Orders. Dkt. # 42 at 2 (emphasis added); see also Dkt. # 110 at 3. Thus, the City has already agreed that violations by individual officers are nonetheless violations of the Orders. For these reasons, Monell does not apply.

It’s also worth pointing out that Judge Jones’ ruling today parallels a ruling two weeks ago in a very similar case in Portland, in which a judge found the Portland police in contempt for violating a restraining order restricting its use of less-lethal weapons. In that case, the judge also found specific violations that were not “technical,” and that the police department had not done enough to comply with the injunction.

According to a spokesperson for Seattle City Attorney Pete Holmes, the city is still reviewing Judge Jones’ ruling today. If it chooses to appeal, there are at least two issues it could bring up. First, it could argue that the Monell standard does in fact apply to contempt charges; and second, it could argue that while the judge found that SPD had not done enough to comply with the injunction, it did not specify what additionally the department could, or should, have done (the judge in the Portland case likewise found that the Portland police had not done enough but didn’t specify what else it should have reasonably done).

In the meantime, the contempt proceedings continue. Judge Jones ordered the plaintiffs to submit by Friday their proposal for sanctions to be imposed on the city for violating the injunction. The city will then have one week to respond before Judge Jones decides.

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