A trio of court case updates this afternoon…
ACLU/Black Lives Matter: Sanctions for Contempt
Two weeks ago Judge Richard Jones found the City of Seattle in contempt for four instances of violating his injunction restricting SPD’s use of crowd-control weapons at protests. Last week the plaintiffs proposed sanctions against the city:
- SPD must distribute the judge’s order to all officers within two weeks of entry of the forthcoming sanctions order. It must be accompanied by “clear instructions about what conduct is prohibited, that any future occurrence will trigger negative consequences, and what those negative consequences might entail.”
- For the duration of the injunction, whenever SPD officers deploy less-lethal weapons against protesters it must deliver to the plaintiffs within five days a use-of-force report and relevant body-worn-video footage of the event. It must also confer with the plaintiffs as to whether any additional documentary evidence should be handed over.
- The city must pay the plaintiffs’ legal costs.
In a separate filing, the plaintiffs asked for $263,000 in legal costs, including reimbursing lawyers’ time at up to $785 per hour.
Last Friday, the city responded to the proposed sanctions — and pushed back hard.
First, in a filing related to the sanctions, it began by reiterating its argument that under the Monell doctrine, which the judge rejected as inapplicable to a contempt charge, the city can’t be held responsible for the actions of individual employees unless it can be shown that their actions were based on a policy or custom of the city or the city showed deliberate indifference. This is a pretty clear sign that the city intends to appeal Judge Jones’ ruling to the Ninth Circuit Court of Appeals; raising it again in its brief serves to “preserve the issue on appeal.” When Jones heard arguments on and decided the issue, he noted that there are no case precedents for applying Monell to a contempt charge, and it will be a juicy issue for the Ninth Circuit to tackle.
The city went on to argue that sanctions as a result of a civil contempt charge are intended to “coerce the defendant into compliance with the court’s order,” and not to punish the defendant. It argued that SPD had already in good faith taken remedial action on its own, disseminating the court’s ruling on the contempt charge to all command officers — and that OPA is actively investigating the violations that Judge Jones found. Though the city said it was fine with disseminating the ruling to all SPD officers, it argued that the remedial action it has taken is sufficient and consistent with the police accountability system through the Consent Decree. Further it asserted that the additional reporting requirements that the defendants are requesting don’t specify how it will remedy the violations, or will advance future compliance. Finally, it argued that the additional reporting requirements are so onerous that it is impossible for SPD to comply with them under the specified 5-day timeframe.
The city makes some good arguments about the logistical impossibility of the proposed reporting requirements. However, its argument that it is already taking sufficient remedial action as guided by the city’s police accountability system fails to acknowledge not only that the system hasn’t been approved by Judge James Robert, who oversees the Consent Decree implementation, but also that Robart found the city to be in violation of the Consent Decree for fundamental weaknesses in that accountability system. So claiming that system as the gold standard it has met is not a particularly strong argument that its remedial actions are sufficient.
As for contesting the legal fees: the city makes three arguments. First, that the rates are too high; second, that the plaintiffs are charging too many hours, for far too many attorneys and staff than is appropriate for this case, as well as for work not central to the case; and third, that the plaintiffs only narrowly prevailed and as such only deserve to have a fraction of their legal costs reimbursed. To do otherwise, it argues, would be punitive.
The city highlights specifically the $785 per hour rate for Perkins Coie partner attorney David Perez, the lead attorney on the case; it points out that Perez only charges the Community Police Commission $515 per hour for work on similar issues. The city also raised concerns that the plaintiffs were claiming rates of $35 per hour for two attorneys on the case who graduated from law school only last spring; and that they claimed up to $295 per hour for the work of two paralegals.
This afternoon, Perez filed a declaration noting that his CPC rate was negotiated in 2018, before he was promoted to a partner at his law firm last year. He also defended the number of attorneys and staff on the case, pointing out that he is the only partner attorney assigned to the case — whereas four partner attorneys signed the city’s briefs.
There is no specific timetable for Judge Jones to rule on sanctions, and he may ask for a hearing and oral arguments before ruling.
Late this afternoon, the City of Seattle filed a motion for reconsideration asking Judge Jones to throw out his ruling finding the city in contempt. As expected, it doubles down on the city’s contention that the Monell doctrine applies to the contempt charges. It also provides additional evidence with regard to the four incidents where Jones found the city in violation. Normally additional evidence would not be allowed at this point, but the city argues that given its earlier objections to the short time-frame it was given in turning around video footage it is allowed to introduce further evidence now. Judges rarely make more than minor changes in response to motions for reconsideration, and Judge Jones is unlikely to depart from that here. However, the subtext for this, once again, it for the city to ensure that it can argue its case at the appeals court level by showing that it fully expressed the same argument at the trial court level first.
Eviction moratoria challenge
Back at the beginning of the month, U.S.District Court Magistrate Judge Richard Creatura handed down his report and recommendations on a request for a preliminary injunction filed by several landlords, challenging the eviction moratoria enacted by Governor Inslee and Mayor Durkan. Creatura found that the plaintiffs had not proven that they were likely to succeed on the merits of their case (nor on the other tests they needed to meet in order to gain an injunction; and that Governor Inslee is immune from suit and therefore should be dismissed as a defendant in the case.
As a magistrate judge, Creatura doesn’t get to rule in the case; in the interests of speedy and efficient court decisions, magistrate judges hear cases when the parties consent to it, and then make their recommendations to a sitting District Court judge — in this case Judge Richard Jones, once again — who then makes the final ruling.
After the magistrate judge issues a report and recommendations, the parties have an opportunity to raise objections. In this case, the City of Seattle, the State of Washington, and the plaintiffs all filed statements of objections.
The city’s filing is a fairly simple clarification, rather than an “objection” — not surprising since the city got everything it wanted and is now well set up to get the case dismissed entirely. The state’s objections are just slightly stronger; it objects to Creatura’s finding that the eviction moratoria “impaired” the lease agreements at al, and it points out two findings where it believes there was no evidence submitted into the record to support them.
The plaintiffs, who were summarily trounced in Creatura’s report, submitted a much longer statement of objections that reiterates much of its original argument. It hammers on its belief that Governor Inslee is not immune from lawsuit in this case, continues its argument that the eviction moratoria are not “reasonable and necessary,” and argues that the notion that lifting the moratoria will lead to a rash of evictions is purely speculative.
This case is also in Judge Jones’ hands now to decide.
Trump’s “anarchist jursidictions” pronouncement
You may recall that before the election (it seems like ages ago, doesn’t it?) President Trump issued an executive order naming Seattle, Portland and New York City as “anarchist jurisdictions” as a pretext for denying those cities federal funding. The cities sued in order to prevent the effort from going forward. The executive order directs the Office of Management and Budget to issue guidance on what federal funding can be withheld under the direction of the President.
This afternoon, the plaintiffs and the Trump administration submitted a stipulated, proposed order extending the deadline for the federal government to respond to the complaint from December 28 to February 11. That pushes it past Inauguration Day, at which point the Biden Administration will almost certainly rescind Trump’s executive order and moot the case. In the meantime, just in case Trump tries to rush it through, the proposed order requires the OMB to notify the three cities if it issues the guidance between now and then.
So far all intents and purposes, unless the Trump administration gets even more petty and vindictive in its final days (which, admittedly, is entirely possible) this case is dead — along with the threat of federal funds being withheld from Seattle.
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