This afternoon, U.S. District Court judge Richard Jones issued his ruling on sanctions for SPD’s violation of his injunction restricting the department’s use of crowd-control weapons. He also ruled against the city on two related matters, setting up the city to appeal his contempt ruling from last month.
In early December, Judge Jones found the city in contempt for violating his preliminary injunction, and asked both parties to weigh in on appropriate sanctions. Jones has been deliberating on those briefs for the past month, and today finally ruled.
Noting that there are two types of sanctions, “coercive” and “compensatory,” each with a different standard for appropriateness, he walked through each of the individual requests from the plaintiffs and ruled.
The plaintiffs (the ACLU and Black Lives Matter Seattle-King County) asked for two types of coercive sanctions: requiring SPD to brief all officers on the contempt ruling, and for all future SPD deployments of crowd-control weapons requiring SPD to proactively provide the plaintiffs with written documentation of the deployment within a short period of time. But Judge Jones ruled that in civil contempt cases coercive sanctions must lead to “purging” or correcting the violations that led to the contempt charge, not preventing future ones; and since SPD can’t rewrite the past and undo its prior misuse of crowd-control weapons, the plaintiffs’ requests are inappropriate. He denied both of them.
The only compensatory sanction that the plaintiffs asked for was for the city to cover their legal costs, i.e. the hourly fees their lawyers and staff charge. But the city complained that the plaintiffs’ request for legal fees – $263,000 to cover twelve attorneys and two paralegals — was excessive both in the hourly rates they were asking for, and in the number of hours they were charging. Judge Jones agreed with the city: he slashed the rates a bit, slashed the hours by 65% mostly based on the fact that the plaintiffs only succeeded on a small fraction of their allegations of violations, and in the end ordered the city to pay about $81,000 in legal costs — less than a third of what they had asked for.
That part of today’s ruling was a big win for the city: no contempt sanctions other than legal fees, and a substantial decrease in those. But the rest of Judge Jones’ ruling today was not nearly as kind to the city and SPD.
The city had made two subsequent motions to the court after the judge handed down his contempt ruling:
- It filed a Motion for Reconsideration, asking Jones to change his contempt ruling.
- It asked for permission to file additional officer declarations related to the four violations that directly led to the judge’s ruling.
In the city’s Motion for Reconsideration, it spelled out its disagreement on a key legal point: whether the Monell doctrine, which holds that the city can only be held responsible for employees’ individual actions if it can be shown that those actions were a result of the city’s established policy, practice or custom, also applies to contempt charges. The city argued that it does, while the judge ruled that it does not. In today’s ruling, Jones denied the motion for reconsideration and reiterated his logic: that the case law establishes that Monell applies to questions of civil liability, but there is a separate, well-established standard for whether a defendant is in substantial compliance with an injunction, and no court has ever tried to merge the two together. In fact, there are no case law precedents that specify whether Monell does or does not apply, and Jones is following the case law precedents, established by higher courts to which he must defer, for how to decide contempt allegations. But the big fight over this legal issue (an interesting one with persuasive arguments on both sides) is undoubtedly headed for the Ninth Circuit Court of Appeals: the city’s motion for reconsideration was undoubtedly an attempt to preserve the issue for appeal and sharpen its argument, rather than in earnest expectation that Judge Jones would change his mind.
As an aside, Judge Jones chewed out the city for not conferring with the plaintiffs before filing its motion to reconsider, as required under the court’s rules, putting it on notice that “Though the Court will not strike the motion on that basis, it will not hesitate to do so in the future.”
Judge Jones also denied the city’s request to supplement the record with additional declarations from police officers, spelling out how doing so would subvert the legal process in the city’s favor by letting it wait until after the court rules and then produce additional evidence on only those charges that the court sustained:
For illustration, the Court offers the following scenario: A protest is held. SPD uses crowd control weapons. Plaintiffs file a contempt motion. The Court sets the matter for an evidentiary hearing, allowing both parties to present their case with live testimony and providing the Court the benefit of direct and cross examination. Rather than proceed with the evidentiary hearing, the City stipulates to an abridged proceeding. Instead of live testimony, the City submits declarations and video evidence of its crowd control weapon use. Because the City presumably possesses most of the pertinent evidence (for example, body worn video footage and use of force reports), the City gets to define the universe of evidence that Plaintiffs and the Court review. Then, using only the evidence provided by the City, Plaintiffs make their arguments. Similarly, the Court reviews the imperfect record and draws its conclusions. Once the Court does so, the City supplements the record only where it disagrees with the Court’s conclusions.
That is the procedure born by granting leave to supplement here. That procedure enables the City to use the lack of evidence as both sword and shield. A shield because, during the contempt proceedings, the City would only introduce the evidence that it sees fit and would ask the Plaintiffs and the Court to consider only that limited record. A sword because the City would then attack any findings made by the Court based on that limited record. The City asks to supplement the record only with evidence that exculpates it and not any evidence that incriminates it. For example, for the protest on September 23, 2020, there were thirty-something blast ball uses for which there was no body worn video footage. Dkt. # 161 at 24-25. The City does not ask to supplement the record to account for these uses. It only does so for its violations. And should the Court, out of fairness, allow Plaintiffs to obtain the evidence it seeks, these proceedings would be endless.
To sum up: the judge took it easy on the city with regard to sanctions, imposing only a greatly-reduced bill for the plaintiffs’ legal costs. Nevertheless, it’s likely that the city will appeal Judge Jones’ earlier ruling finding the city in contempt, to allow the Ninth Circuit to weigh in on the application of Monell to contempt proceedings. According to a spokesperson for the city Attorney’s Office, no official decision has been made on whether to appeal: “We have to evaluate the court’s order and confer with clients before making any decisions.”
David Perez, lead counsel for the plaintiffs, provided this statement on today’s ruling: “We are very pleased that the Court rejected the City’s misguided attempt to reverse the Court’s contempt finding, and that the Court issued sanctions against the City. Our goal is to ensure greater safety for protesters through compliance with the Court’s orders, and this decision will help in that regard.”
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What do the Plaintiff’s achieve with a contempt ruling in their favor?
That’s a fair question. The contempt ruling moved the goalposts — or perhaps established them for the first time — in what the city’s actual responsibilities are for ensuring that SPD officers use crowd-control weapons correctly, prudently, and discriminately. And I think it’s fair to say that if they were found repeatedly in contempt, Judge Jones would likely rule the the city was incapable of using the weapons in a manner that was appropriate and constitutional and would modify his injunction to ban more of them altogether.