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IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR THE COUNTY OF PIERCE

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GREGORY CHRISTOPHER, an individual,
ARTHUR C. BANKS, an individual, TONEY
MONTGOMERY, an individual, WHITNEY
BRADY an individual,

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Plaintiffs,

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No. __________
[Clerk’s Action Required]
COMPLAINT FOR VIOLATION OF
THE PUBLIC RECORDS ACT

vs.

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CITY OF TACOMA, a municipal corporation

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Defendant.

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Plaintiffs Gregory Christopher, Arthur C. Banks, Toney Montgomery, and Whitney
Brady (collectively the “Plaintiffs”), in their individual capacities, allege as follows:

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I.

INTRODUCTION

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1.1

This is a lawsuit challenging the City of Tacoma’s efforts to shield from

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public view and public debate the propriety of the City of Tacoma’s use of stingray

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technology, as executed through its failure to comply with the Washington Public Records

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Act, Chapter 42.56 RCW (the “Act” or the “PRA”).

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 1

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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1.2

This case is brought by four community leaders in Tacoma, Washington.

These leaders made a request to the City of Tacoma (“Tacoma” or “the City”) under the Act
after learning that their local police department bought and, for six years, quietly used,

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controversial surveillance equipment known as a cell site simulator (or a “stingray”) in their
community.
1.3

A cell site simulator is a device that locates and identifies wireless devices

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such as cellular phones, cellular-enabled tablet devices, and cellular-enabled wireless hotspot

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devices in its vicinity. While a number of cell site simulator brands and models exist—such

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as the StingRay or the TriggerFish—these devices are commonly known as stingrays.
1.4

Stingrays are both highly intrusive and indiscriminate. To locate a suspect’s

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cell phone, a stingray obtains information from all devices on the same network in a given

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area and sends signals into the homes, cars, bags, and pockets of the suspect and third parties

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alike. The signals are indiscriminately sent by the stingray and every phone within range

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responds to the signal by providing unique information about the phone and its location.

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This information can then be used by law enforcement to locate a particular individual, or to

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identify the particular phone an individual is using. 1.5

In

addition

to

location

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information, a stingray can also potentially capture voice communications, text messages,

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internet browsing activities, and data transmissions such as email.
1.6

The use of stingrays implicates the privacy interests of untold numbers of

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wholly innocent people whose phones were simply within a stingray’s search ambit. The vast

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majority of these people are completely unaware that the data on their phones may have been

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searched; no warrants for such searches were ever requested or issued; and the Tacoma

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 2

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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Police Department has refused to make critical information about how and when these

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devices are used available to the public.

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1.7

On information and belief, the Tacoma Police Department has operated the

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device more than 307 times within the City of Tacoma alone, and has also operated the
device outside of Tacoma at the request of other local and state agencies.
1.8

Plaintiffs filed a public records request on September 2, 2015 seeking

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information about how the City is using and has used stingray technology; what procedures

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and policies the City has promulgated and implemented to govern the technology’s use;

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whether and how other law enforcement agencies are using the technology in cooperation
with the City; and communications between City employees regarding the use of stingray

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technology.
1.9

Until now, Tacoma’s use of this powerful technology has gone unmonitored

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and largely unnoticed, with neither the transparency nor public accountability it warrants.

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The privacy rights at issue are significant, not to mention the need for government and police

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accountability, particularly in light of the City’s history of attempting to cloak its use of this

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technology in secrecy.

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1.10

Five months after Plaintiffs filed their initial public records request, they have

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still received only the most basic of documents and have reason to believe the City did not
disclose all of the public records required by the PRA.

II.

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2.1

PARTIES

Plaintiff Gregory Christopher brings this suit in his individual capacity. He is

the pastor at Shiloh Baptist Church at 1211 South I Street in Tacoma, Washington, and is a
prominent spiritual leader in Tacoma’s Black community. For decades, Pastor Christopher

COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 3

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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has served as a conduit between the Tacoma Police Department and Tacoma’s Black

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community, and has made police relations a central part of both his ministry duties and his

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personal work.

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2.2

Plaintiff Reverend Dr. Arthur C. Banks brings this suit in his individual

capacity. He is the pastor at Eastside Baptist Church on the 3500 block of East Portland

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Avenue, Tacoma, Washington. The Eastside Baptist Church has been a staple of Tacoma

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since 1966, and Reverend Dr. Banks has been with the church since 1987. Under his

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leadership, the church increased its membership from 68 active members to more than 400

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active members—most of whom live in the Hilltop neighborhood—a neighborhood heavily
impacted by the Tacoma Police Department’s practices.

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2.3

Plaintiff Elder Toney Montgomery brings this suit in his individual capacity.

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Elder Montgomery is a spiritual leader at Fathers House Church, located on the 1400 block

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of East 40th Street, Tacoma, Washington. He serves as the chair of the Tacoma Ministerial

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Alliance. The Tacoma Ministerial Alliance was established during the mid-1980s by a

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coalition of pastors, lay ministers, and community leaders as a not-for-profit, faith-based

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organization. The Alliance works collaboratively with many other community and faith-

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based organizations by advocating for freedom of worship and social and economic equality,

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and by raising the social consciousness of underrepresented populations in the community.
2.4

Plaintiff Whitney Brady brings this suit in his individual capacity. He has

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lived in the Hilltop neighborhood of Tacoma, Washington for 29 years. In 2015, Mr. Brady

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ran for City Council in Tacoma on a platform that included police accountability. He also

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coached youth sports in Tacoma.

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 4

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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2.5

The City of Tacoma is a municipal corporation. The Tacoma Police

Department is a department within the City of Tacoma. Plaintiffs jointly filed a request under
the Act seeking various public documents, described herein, from the Tacoma Police

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Department. This request was processed by the City of Tacoma.
III.

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3.1

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The City of Tacoma maintains the records Plaintiffs seek in Tacoma, Pierce

County, Washington.

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3.2

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Jurisdiction and venue are proper under RCW 42.56.540 and RCW 2.08.010.
IV.

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JURISDICTION AND VENUE

FACTS

4.1

The Plaintiffs incorporate paragraphs 1.1-3.2 and restate these paragraphs

4.2

A stingray is a radio interception device that forces cell phones in a given area

herein.

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to connect to it instead of to a legitimate telecommunications tower. A stingray allows

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investigators to access, store, and analyze a trove of data intercepted from cell phones,

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including call and text messaging logs, location information, and other sensitive, private

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information.

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4.3

Plaintiffs requested and were denied information about the full technological

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capacity of the stingrays used by the City but credible, academic sources and similar records

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requests in other jurisdictions suggest that the City can use its stingray to eavesdrop on live
calls, read text messages, and review other data (e.g. emails and internet browsing activities).
4.4

Stingrays are not phone or wire taps in the traditional sense. By analogy, a

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phone-tap or pen register is the equivalent of fishing with a hook, while a stingray is like

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fishing with a commercial dragnet. Instead of targeting a single phone, a stingray

COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 5

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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indiscriminately monitors all cell phones in its proximity and tricks all such phones into

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connecting with it regardless of the phone owner’s identity or relevance to the investigation.

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4.5

On or about July 25, 2008, the United States Army Electronics Proving

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Ground in Arizona sent a stingray to the Tacoma Police Department.
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Since 2009, the City has used stingray technology to find suspects in a wide

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variety of criminal investigations including drug offenses, a stolen City laptop, and

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individuals suspected of assault, as well as to find people with felony warrants and material

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witnesses.

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4.7

At least four Tacoma Police Department employees have operated this

equipment: Detective Jeffery Shipp, Detective Terry Krause, Detective Barry McColeman,

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and Detective Scott Shafner.
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In addition to the use of the stingray for Tacoma Police Department

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investigations, the equipment has been used repeatedly by or for other law enforcement

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agencies, such as the Drug Enforcement Agency, Pierce County Sheriff’s Department,

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Washington State Patrol, Department of Homeland Security/U.S. Immigration and Customs

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Enforcement, and the City of Lakewood. Additionally, the Tacoma Police Department

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provided the device to those working on initiatives like Innocence Lost—a national

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collaboration between the Federal Bureau of Investigations, Department of Justice Child

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Exploitation and Obscenity Section, and the National Center for Missing and Exploited

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Children—and the South Sound Gang Taskforce.

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4.9

In 2013, the Tacoma Police Department purchased additional stingray

technology, software, and training.

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 6

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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4.10

In 2014, the Tacoma Police Department again purchased additional stingray

technology, software, and training.
4.11

The Tacoma Police Department has operated its stingray more than 307 times

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within the City of Tacoma, where Plaintiffs reside.
4.12

On or about September 2, 2015, Plaintiffs made two requests to the Tacoma

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Police Department seeking records maintained by the Tacoma Police Department related to

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the use of cell site simulators and passive cell phone data collectors. A copy of these requests

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are attached at Exhibit A.

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4.13

The City of Tacoma processed these requests and gave them the internal

identifiers “PRA Request 15-9481” and “PRA Request 15-9482, respectively.

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4.14

On October 28, 2015, the City of Tacoma released a number of records in

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response to PRA Request 15-9481, noting that the records produced in response to PRA

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Request 15-9482 were identical. With the release of records, the City of Tacoma also

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provided a document entitled Public Disclosure Request Privilege Log, a copy of which is

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provided at Exhibit B.

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4.15

Plaintiffs requested all records regarding the Tacoma Police Department’s

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acquisition, use, or lease of cell site simulators, including but not limited to communications,

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invoices, purchase orders, contracts, loan agreements, grant applications, evaluation
agreements, and delivery receipts.

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4.16

The records referred to in ¶ 4.15 are public records.

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4.17

Defendant did not provide all public records requested in ¶ 4.15, and/or

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improperly redacted these public records.

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 7

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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4.18

On information and belief, the City of Tacoma withheld communications to

and from Detective Jeffery Shipp, Detective Terry Krause, Detective Barry McColeman, and
Detective Scott Shafner without including these communications in the Public Disclosure

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Request Privilege Log.
4.19

The City of Tacoma withheld invoices from May 2013, without identifying

the invoices in the Public Disclosure Request Privilege Log.
4.20

On information and belief, Defendant did not provide all communications

with other local, state, or federal agencies regarding the use of the stingrays and did not list
these documents in its Public Disclosure Request Privilege Log.
4.21

Plaintiffs requested all records regarding offers, proposals, agreements,

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arrangements, or memorandums of understanding regarding the use of or receipt of

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information, data, or metadata collected from cell site simulators owned or in the possession

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of any other local, state, or federal agency.

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4.22

The records referred to in ¶ 4.21 are public records.

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4.23

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.21, and/or improperly redacted these public records.

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4.24.

Plaintiffs requested all records regarding offers, proposals, agreements,

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arrangements, or memorandums of understanding regarding the use of or disclosure of

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information, data, or metadata collected from cell site simulators by the Tacoma Police

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Department on behalf of any other local, state, or federal agency.

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4.25

The records referred to in ¶ 4.24 are public records.

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4.26

On information and belief, Defendant did not provide all public records

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 8

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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requested in ¶ 4.24, and/or improperly redacted these public records.
4.27

Plaintiffs requested all nondisclosure agreements, licenses, waivers,

warranties, memorandums of understanding, or agreements concerning acquisition or use of

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cell site simulators.
4.28

The records referred to in ¶ 4.27 are public records.

4.29

On information and belief, Defendant did not provide all public records

requested in ¶ 4.27, and/or improperly redacted these public records.
4.30

Plaintiffs requested all documents concerning technical specifications of cell

site simulator devices, software, or other cell site simulator technologies.
4.31

The records referred to in ¶ 4.30 are public records.

4.32

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.30, and/or improperly redacted these public records.
4.33

Plaintiffs requested all training materials, guidelines, and procedural

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requirements regarding the use and maintenance of cell site simulators, including but not

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limited to, configuration, data retention, and data deletion.

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4.34

The records referred to in ¶ 4.33 are public records.

4.35

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.33, and/or improperly redacted these public records.
4.36

Plaintiffs requested all privacy impact assessments or reports concerning the

use or capabilities of cell site simulators.

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4.37

The records referred to in ¶ 4.36 are public records.

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4.38

On information and belief, Defendant did not provide all public records

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 9

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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requested in ¶ 4.36, and/or improperly redacted these public records.
4.39

Plaintiffs requested all communications regarding cell site simulators,

including internal communications among Tacoma Police Department personnel and

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communications between Tacoma Police Department personnel and any other local, state, or
federal agency or person.

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4.40

The records referred to in ¶ 4.39 are public records.

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4.41

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.39, and/or improperly redacted these public records.
4.42

Plaintiffs requested all records regarding affidavits for the use of cell site

simulators.

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4.43

The records referred to in ¶ 4.42 are public records.

4.44

On information and belief, Defendant did not provide all public records

requested in ¶ 4.42, and/or improperly redacted these public records.
4.45

Plaintiffs requested all applications submitted to state or federal courts for

warrants, orders, or other authorizations for use of cell site simulators in criminal
investigations, as well as any warrants, orders, authorizations, denials of warrants, denials of

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orders, denials of authorization, and returns of warrants associated with those applications.

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4.46

The records referred to in ¶ 4.45 are public records.

4.47

On information and belief, Defendant did not provide all public records

requested in ¶ 4.45, and/or improperly redacted these public records.
4.48

Plaintiffs requested all equipment logs and similar records, whether generated

manually by Tacoma Police Department staff or automatically by the applicable cell site

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 10

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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simulator, regarding the checking-in, checking-out, or use of cell site simulator equipment.
4.49

The records referred to in ¶ 4.48 are public records.

4.50

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.48, and/or improperly redacted these public records.
4.51

Plaintiffs requested all marketing and vendor materials received regarding cell

site simulators.

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4.52

The records referred to in ¶ 4.51 are public records.

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4.53

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.51, and/or improperly redacted these public records.
4.54

Plaintiffs requested all communications between Pierce County Superior

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Court and the Tacoma Police Department regarding cell site simulators.

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4.55

The records referred to in ¶ 4.54 are public records.

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4.56

On information and belief, Defendant did not provide all public records

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requested in ¶ 4.54, and/or improperly redacted these public records.
4.57

RCW 9.73.260(6)(c) requires that law enforcement agencies authorized to use

a cell site simulator device: (i) take all steps necessary to limit the collection of any

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information or metadata to the target specified in the applicable court order; (ii) take all steps

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necessary to permanently delete any information or metadata collected from any party not

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specified in the applicable court order immediately following such collection, and not

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transmit, use, or retain such information or metadata for any purpose whatsoever; and (iii)

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delete any information or metadata collected from the target specified in the court order

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within thirty days if there is no longer probable cause to support the belief that such

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 11

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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information or metadata is evidence of a crime.
4.58

Plaintiffs requested all records relating to the Tacoma Police Department’s

compliance with RCW 9.73.260(6)(c), including, but not limited to, all records related to

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retention, disclosure, and deletion of data collected by cell site simulators.
4.59

The records referred to in ¶ 4.58 are public records.

4.60

On information and belief, Defendant did not provide all public records

requested in ¶ 4.58, and/or improperly redacted these public records.
4.61

On November 23, 2015, Plaintiffs sent a letter requesting that the Tacoma

Police Department examine the adequacy of its initial response.
4.62

The City of Tacoma received the letter on November 30, 2015, responded on

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December 9, 2015, and re-opened the Public Records Act request.
4.63

On or about December 18, 2015, additional records were provided that had

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not been included in the October 28, 2015 disclosure, but these records were not sufficient.

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These records did not remedy the deficiencies in the Defendant’s initial response.

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4.64

The City provided an additional Public Disclosure Request Privilege Log; a

copy is attached at Exhibit C.

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V.

CAUSE OF ACTION

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5.1

Plaintiffs incorporate paragraphs 1.1-4.64 and restate these paragraphs herein.

5.2

The City of Tacoma is a “public agency” subject to the Washington Public

Records Act.
5.3

Plaintiffs made a request in writing for “public records” from the City of

Tacoma, as that term is defined in RCW 42.56.010.
5.4

The City of Tacoma did not make available for inspection and/or copying all

COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 12

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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the public records requested by Plaintiffs.
5.5

The City of Tacoma did not provide a complete log of all the public records it

withheld.

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5.6

The City of Tacoma did not cite exceptions for all the documents withheld.

5.7

The attorney-client privilege is an improper exception raised by the City of

Tacoma to withhold/redact one or more documents.
5.8

The City of Tacoma relied on the specific intelligence information exemption

in RCW 42.56.240 to redact and withhold documents.
5.9

The specific intelligence information exemption does not exempt the withheld

and redacted public records.

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VI.

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WHEREFORE, Plaintiffs hereby pray for judgment against Defendant as follows:
A.

B.

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For an order requiring Defendant to provide the public records to the
Plaintiffs;

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PRAYER FOR RELIEF

For attorneys’ fees and expert costs incurred in bringing the lawsuit against
Defendant;

C.

For an amount not to exceed one hundred dollars for each day that each

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Plaintiff was denied the right to inspect or copy each page of public records;

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D.

trial; and

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For leave to amend these pleadings to conform to the evidence presented at

E.

For such further relief as the Court deems just and equitable.

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 13

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711

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Dated this 11th day of February, 2016.

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SCHWABE WILLIAMSON &
WYATT, P.C

ACLU OF WASHINGTON
FOUNDATION

By:___________________________
Jamila A. Johnson, WSBA #39349
Email: jajohnson@schwabe.com
James E. Edwards, WSBA #46724
Email: jedwards@schwabe.com
Seattle, WA 98101
1420 5th Avenue, Suite 3400
Telephone: (206) 622-1711
Facsimile: (206) 292-0460

By:______________________________
Timothy Jared Friend, WSBA #46848
Email: jfriend@aclu-wa.org
La Rond Baker, WSBA #43610
Email: lbaker@aclu-wa.org
Seattle, WA 98164
901 5th Ave., Suite 630
Seattle, WA 98164-2086
Telephone: (206) 624-2184

Attorneys for Plaintiffs

Attorneys for Plaintiffs

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COMPLAINT FOR VIOLATION OF THE PUBLIC
RECORDS ACT - 14

SCHWABE, WILLIAMSON & WYATT, P.C.
Attorneys at Law
1420 5th Avenue, Suite 3400
Seattle, WA 98101-4010
Telephone: 206.622.1711