Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 1 of 8

The Honorable Richard A. Jones

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

7
8
9
10
11

BLACK LIVES MATTER SEATTLE-KING
COUNTY, ABIE EKENEZAR, SHARON
SAKAMOTO, MURACO KYASHNATOCHA, ALEXANDER WOLDEAB,
NATHALIE GRAHAM, AND ALEXANDRA
CHEN,

12
Plaintiffs,
13

No.

2:20-CV-00887

DEFENDANT CITY OF SEATTLE’S
NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION
FOR TEMPORARY RESTRAINING
ORDER

vs.
14
CITY OF SEATTLE,
15
Defendant.
16
17
(1) Under L.C.R. 65(b)(5), the City hereby notifies the court that it intends to file a response and
18
opposition to Plaintiffs’ Motion for Entry of a Temporary Restraining Order given the
19
language proposed by Plaintiffs, which does not allow exceptions that would preserve the
20
City’s ability to protect individuals from imminent physical harm.
21
22
23
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 1

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 2 of 8

1

(2) As indicated to Mr. Perez, the City’s modification is narrow and consistent with orders from

2

other district courts from around the country addressing identical subject matter areas.

3

(Sharifi Dec., ¶ 10-13, Ex. 9 - 11).

4

(3) The City is aware of three Motions for a Temporary Restraining Order nationally 1 related to

5

the current civil rights movement addressing systemic racism in the United States, currently

6

focused on policing due to the killing of George Floyd. In these Motions, plaintiffs challenge

7

the use of less lethal tools for crowd management during demonstrations, citing, as in the

8

present case, primarily First and Fourth Amendment claims. In all of the Motions, the courts

9

carefully balanced the “absolute right to demonstrate and protest the actions of government

10

officials” and the “difficult and thankless job” in which police officers are “called upon to

11

make split second decisions and to expose themselves to danger while protecting the health

12

and safety of the rest of us.” Agazi Abay, et al, v. City and County of Denver, 20-CV-1616-

13

RBJ, United States District Court for the District of Colorado, June 5, 2020; Don’t Shoot

14

Portland, et al v. City of Portland, 20-cv-00917-HZ *4, United States District Court for the

15

District of Oregon (“the Court recognizes the difficulty in drawing an enforceable line that

16

permits officers to use appropriate means to respond to violence and destruction of property

17

without crossing the line into chilling free speech and abusing those who wish to exercise

18

it.”)

19

(4) In Agazi Abay, et al, v. City and County of Denver, 20-CV-1616-RBJ, United States District

20

Court for the District of Colorado, June 5, 2020, the Court “enjoin[ed] the City and County

21
22
23

In Goyette v. City of Minneapolis, 20-CV-1302 (WMW/DTS), District of Minnesota, the Court denied the Temporary
Restraining Order without prejudice because the plaintiff could not show “irreparable harm.” As the City is willing to
stipulate to a Temporary Restraining Order in the current matter, and the ruling in Goyette is highly fact-specific, the
City does not spend time discussing this case.
1

DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 2

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 3 of 8

1

of Denver, and specifically the Denver Police Department and officers from other

2

jurisdictions who are assisting Denver Police Officers, from employing chemical weapons

3

or projectiles of any kind against persons engaging in peaceful protests or demonstrations.”

4

To “assure that this idealistic order” was carried out, the Court specifically “enjoin[ed] the

5

Denver Police Department and officers from other jurisdictions working with Denver Police

6

Department officers from using chemical weapons or projectiles unless an on-scene

7

supervisor at the rank of Captain or above specifically authorizes such use of force in

8

response to specific acts of violence or destruction of property that the command officer has

9

personally witnessed,” and also ordered that 1) Kinetic Impact Projectiles and all other non-

10

or less-lethal projectiles may never be discharged to target the head, pelvis or back; 2) that

11

such less lethal projectiles shall not be shot indiscriminately into a crowd; 3) that non-Denver

12

officers shall not use any force or weapon beyond what Denver permits for its own officers;

13

4) all officers must have their body-worn cameras recording at all times and may not

14

intentionally obstruct the camera or recording; 5) chemical agents or irritants may only be

15

used after an order to disperse; and 6) all orders to disperse must be followed with adequate

16

time for the intended audience to comply and officers must leave room for safe egress. Id.

17

(5) Upon the Denver City and County’s Emergency Motion to Modify, the court amended the

18

order to allow Lieutenants and above to authorize the use of the “prohibited force” to address

19

property destruction or specific acts of violence and modified its order on body cameras “as

20

a matter of common sense, the Court is not requiring that body cameras be activated and

21

draining batteries when nothing is happening in the officer’s vicinity.” Abay, 20-CV-1616-

22

RBJ, Order, June 6, 2020. (Sharifi Dec., Ex. 9).

23
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 3

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 4 of 8

1

(6) On June 9, 2020, in Don’t Shoot Portland, et al v. City of Portland, 20-cv-00917-HZ, United

2

States District Court for the District of Oregon, the court granted a Temporary Restraining

3

Order against the Portland Police Bureau: “The Court therefore orders that PPB be restricted

4

from using tear gas or its equivalent except as provided by its own rules generally. In

5

addition, tear gas use shall be limited to situations in which the lives or safety of the public

6

or the police are at risk. This includes the lives and safety of those housed at the Justice

7

Center. Tear gas shall not be used to disperse crowds where there is no or little risk of injury.”

8

(Sharifi Dec., Ex. 11).

9

(7) In the current matter, the City counter-proposed language for a Temporary Restraining Order

10

that, like those in Denver and Portland, attempts to better balance constitutional rights and

11

the public safety obligations faced by the City and its police. In the below, subtractions from

12

Plaintiffs’ proposed Temporary Restraining Order language is in strikethrough; additions in

13

italics.

14
15
16
17
18
19
20
21

The City of Seattle, including the Seattle Police Department and any other
officers, departments, agencies, or organizations acting within the Seattle
Police Department’s jurisdiction or under the Seattle Police Department’s
control (collectively, “the City”), is hereby enjoined from employing chemical
weapons or projectiles of any kind against persons engaging in peaceful
protests or demonstrations. This injunction includes: (1) any chemical irritant
such as and including CS Gas (“tear gas”) and OC Gas (“pepper spray”) and
(2) any projectile such as and including flash-bang grenades, “pepper balls,”
“blast balls,” and rubber bullets, unless the incident commander or aboveranking member of command staff specifically authorizes such use of force in
response to specific acts of violence creating likely imminent physical harm to
an individual(s). This Order does not preclude individual officers from taking
reasonable, necessary, and proportional action to protect against imminent
threat of physical harm to themselves or identifiable others, including the
deployment of OC spray.

22

The City’s language includes similar language to the Denver Order, allowing for an incident

23

commander to authorize the use of less-lethal responses. In contrast to Denver, the City does
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 4

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 5 of 8

1

not seek to include property damage as a viable reason to authorize the use of such tools.

2

The Portland Order does not include any limitation for a command decision; instead officers

3

may use tear gas when “the lives or safety of the public or the police are at risk.” The

4

language proposed by the City is more restrictive than either Denver or Portland.

5

(8) If the Court determines it is appropriate to enter an Order containing the City’s modification

6

and amendment to Plaintiffs’ TRO language, the City agrees to entry of a TRO with the

7

language detailed in ¶ 7 above. Otherwise, the City respectfully requests 72 hours from the

8

filing date and time of the Plaintiffs’ Motion for TRO to file a Response. See L.C.R. 65(b)(5).

9
10
11

DATED this 10th day of June, 2020.
PETER S. HOLMES
Seattle City Attorney

12

14

By: /s/ Ghazal Sharifi
Ghazal Sharifi, WSBA# 47750
Carolyn Boies, WSBA# 40395

15

Assistant City Attorneys

16

E-mail: Ghazal.Sharifi@seattle.gov
E-mail: Carolyn.Boies@seattle.gov

13

17

19

Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
Phone: (206) 684-8200

20

Attorney for Defendant City of Seattle

18

21
22
23
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 5

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 6 of 8

1
2

CERTIFICATE OF SERVICE
I hereby certify that on June 10, 2020 I electronically filed the foregoing with the Clerk of
the Court using the CM/ECF system which will send notification of such filing to the following:

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Breanne Mary Schuster
ACLU of Washington
901 Fifth Avenue, Suite 630
P.O. Box 2728
Seattle, WA 98111
(206) 624-2184
[Attorneys for Plaintiffs]
John B. Midgley
ACLU of Washington
901 Fifth Avenue, Suite 630
P.O. Box 2728
Seattle, WA 98111
(206) 624-2184
[Attorneys for Plaintiffs]
Lisa Nowlin
ACLU of Washington
901 Fifth Avenue, Suite 630
P.O. Box 2728
Seattle, WA 98111
(206) 623-1900
[Attorneys for Plaintiffs]
Molly Tack-Hooper
ACLU of Washington
901 Fifth Avenue, Suite 630
P.O. Box 2728
Seattle, WA 98111
(206) 624-2184
[Attorneys for Plaintiffs]
Nancy Lynn Talner
ACLU of Washington
901 Fifth Avenue, Suite 630
P.O. Box 2728
Seattle, WA 98111
(206) 682-2184

( x ) Via Email
bschuster@aclu-wa.org

( x ) Via Email
jmidgley@aclu-wa.org

( x ) Via Email
lnowlin@aclu-wa.org

( x ) Via Email
mtackhooper@aclu-wa.org

( x ) Via Email
talner@aclu-wa.org

[Attorneys for Plaintiffs]
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 6

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 7 of 8

1
2
3
4
5
6

Carolyn S. Gilbert
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-3279
[Attorneys for Plaintiffs]
Mallory Gitt Webster
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-3701

( x ) Via Email
carolyngilbert@perkinscoie.com

( x ) Via Email
mwebster@perkinscoie.com

7
8
9
10
11
12
13

[Attorneys for Plaintiffs]
Paige L. Whidbee
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-3629
[Attorneys for Plaintiffs]
Heath L. Hyatt
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-8000

( x ) Via Email
pwhidbee@perkinscoie.com

( x ) Via Email
hhyatt@perkinscoie.com

14
15
16
17
18
19
20

[Attorneys for Plaintiffs]
Joseph M. McMillan
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 583-8888
[Attorneys for Plaintiffs]
Nitika Arora
PERKINS COIE
1201 3rd Avenue, Suite 4900
Seattle, WA 98101-3099
(206) 359-3267

( x ) Via Email
JMcMillan@perkinscoie.com

( x ) Via Email
NArora@perkinscoie.com

21
22
23

[Attorneys for Plaintiffs]
David A. Perez
( x ) Via Email
PERKINS COIE
DPerez@perkinscoie.com
1201 3rd Avenue, Suite 4900
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 7

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200

 Case 2:20-cv-00887-RAJ Document 20 Filed 06/10/20 Page 8 of 8

1

Seattle, WA 98101-3099
(206) 359-6767

2
3
4
5

[Attorneys for Plaintiffs]
Robert Seungchal Chang
Ronald A. Peterson Law Clinic
Seattle University School of Law
1112 E. Columbia Street
Seattle, WA 98122
(206) 398-4025

( x ) Via Email
changro@seattleu.edu

6
[Attorneys for Plaintiffs]
7
8
9

__/s/ Ghazal Sharifi________________________
Assistant City Attorney

10
11
12
13
14
15
16
17
18
19
20
21
22
23
DEFENDANT CITY OF SEATTLE’S NOTICE OF INTENT TO FILE A
RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY
RESTRAINING ORDER
(20-cv-00887RAJ) - 8

Peter S. Holmes
Seattle City Attorney
701 5th Avenue, Suite 2050
Seattle, WA 98104-7095
(206) 684-8200