Case 2:20-cv-00887-RAJ Document 27 Filed 06/11/20 Page 1 of 11 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 vs. No. 2:20-CV-00887 RAJ DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER 14 CITY OF SEATTLE, 15 Defendant. 16 17 I, Thomas Mahaffey, hereby declare as follows: 18 1. I am over the age of eighteen years and am a citizen of the United States. I have personal 19 knowledge of the facts set forth herein and am competent to testify to them at trial. 20 2. I am and was at all material times hereto the Assistant Chief of Patrol Operations for the City 21 of Seattle Police Department (“SPD”). 22 23 DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 2 of 11 1 3. I am a twenty-six-year veteran of SPD, holding the permanent rank of Captain, which I held 2 for two and a half years prior to my promotion to Assistant Chief on February 24, 2020. I 3 served most recently as Commander of the West Precinct from September 2017 – February 4 24, 2020. 5 4. During my time with SPD, I have served as Incident Commander for many public 6 demonstrations and marches, including other political or social justice protests, such as 7 various May Day events. The Incident Commander commands and coordinates police 8 operations during demonstrations or marches. 9 5. As the events in Seattle unfolded over the last 13 days, I assisted in the management of the 10 demonstrations in my capacity as Assistant Chief of Patrol until June 1, when I assumed the 11 role of Incident Commander in charge of SPD’s operations of the protests and 12 demonstrations members of our community have participated in, concerning both the death 13 of George Floyd in Minneapolis, Minnesota on May 25, 2020, and other surrounding race 14 inequality. 15 6. While events unfolded nationally immediately following Mr. Floyd’s death, demonstrations 16 began in Seattle on May 29, 2020. At that time, as it does for all major events, SPD mobilized 17 the Seattle Police Operations Center (“SPOC”) and planned for staffing and managing the 18 demonstrations in the City. In the course of managing these fluid and dynamic events, SPD 19 received reliable intelligence from other agencies of intent to destroy buildings in Seattle. 20 7. SPD’s priorities for the managing the events beginning on May 29th and continuing through 21 the present have remained consistent. SPD’s first objective was to provide for the safety of 22 the general public, demonstration participants, spectators, first responders, and other 23 participant’s general safety, while facilitating the free speech rights under the First DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 3 of 11 1 Amendment, during this state-wide state of emergency due to Covid-19. SPD also will take 2 enforcement action in addressing violent crimes committed against persons, or in the face of 3 significant property damage, while ensuring arrests for such crimes are carried out in a 4 manner that is safe and effective and in accordance with training and law. Within these 5 events, SPD also seeks to deter criminal activity, protect public and private property with a 6 significant uniformed presence of officers, and, as required, minimizing the disruption to 7 traffic through the use of traffic diversion. 8 8. In so managing these and other crowd management events, SPD does not send sworn 9 personnel to all protests or demonstrations. Determinations about when sworn personnel are 10 assigned, and how many officers are assigned, depends on a variety of factors, but the size 11 of the demonstration is a key factor in that decision. 12 9. I am aware that Plaintiffs seek to enjoin SPD from the use of certain crowd management 13 tools commonly referred to as less lethal tools, which include blast balls, flash bangs, CS gas 14 and OC spray. As it concerns the use of any less lethal tools in crowd management, Title 8 15 of the SPD manual, and also SPD’s crowd management policy, governs their use. 16 10. Prior to the deployment of any less lethal tools, SPD first attempts to manage the event 17 without their use, whenever possible, while balancing that priority against the need to secure 18 public and officer safety. In past years, when it has been required at past demonstrations or 19 marches based on conditions at the scene, less lethal crowd control tools have been utilized 20 on occasion as needed; this is not unique to the current demonstrations and marches. 21 11. As set forth in the timeline published by the SPD Public Affairs Unit, the following details 22 specific events that SPD encountered while managing these demonstrations and protests. 23 (See Truscott Dec.). DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 4 of 11 1 12. In the evening hours of May 29, 2020, demonstrations in Seattle turned violent. There was 2 significant property damage to the City, and both civilians and police officers were hit with 3 rocks and other items, incurring injuries. 4 13. On May 30, 2020, demonstrators marched peacefully for much of the day until chaos ensued 5 in the afternoon, resulting in significant property damage, multiple arson events (fires 6 damaging, and also destroying both city and private property), theft, and injuries to 7 community members and law enforcement. 8 14. On May 31, 2020, I requested authorization from Chief Best to enable patrol to use CS Gas 9 in the necessary event of crowd disbursement otherwise consistent with SPD policy, 10 following two days of depleting less-lethal tools available SPD officers as they managed the 11 significant violence, property damage and injuries to police and other civilians during the 12 events of May 29 and 30. This request was authorized by Chief Best. 13 15. Beginning May 31, 2020, much of the demonstration focus shifted between downtown to the 14 area around the East Precinct. While demonstrations were largely peaceful, specific incidents 15 of officer injuries occurred, as officers continued to be hit with rocks, bottles, OC spray, 16 fireworks, and other projectiles. 17 18 16. Largely peaceful demonstrations were also interrupted by specific instances of unrest and violence on June 1, 2020 and June 2, 2020. 19 17. Based on my assessment of preliminary reports, on June 1, 2020, there were several 20 explosions (suspected fireworks) being deployed by the crowd toward officers. Officers 21 employed several dispersal orders that were not heeded. Id. As such, officers deployed less 22 lethal force by use of a chemical irritant. 23 DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 5 of 11 1 18. Based on my assessment of preliminary reports, on June 2, 2020, Officers continued being 2 hit by bottles, rocks, and other projectiles during otherwise peaceful demonstrations. As 3 officers attempted to manage and ensure the safety of the peaceful protestors, they also had 4 lasers pointed at their eyes and were hit by projectiles coming from rooftops/above-ground 5 during these days. 6 7 19. From June 3, 2020 through June 5, 2020, demonstrators were concentrated near the East Precinct. 8 20. Based on my assessment of preliminary reports, while SPD attempted to manage peace 9 within the crowd with greater barrier space between officers and demonstrators, Officers still 10 incurred injuries from water and soda bottles, paint, and other projectiles. Regardless, there 11 were minimal arrests and deployment of less lethal tools. 12 21. On June 5, 2020, SPD issued a departmental directive prohibiting the use of CS gas except 13 the following circumstances: “Where SWAT is on-scene, consistent with Manual Section 14 14.090(4), SWAT will follow all department policies and procedures regarding the use of 15 specialty tools, to include the use of CS gas, in life-safety circumstances and consistent with 16 training. In such instances, and until further notice, any deployment must be approved 17 by the Chief or the Chief’s designee.” (emphasis in original) 18 22. Based on my assessment of preliminary reports, on June 6, 2020, there was a largely peaceful 19 protest day until conflict arose when demonstrators refused to retreat from the police 20 barricade around the East Precinct at approximately 7:30 p.m. 21 23. Based on my assessment of preliminary reports, at around 7:22, the crowd of demonstrators 22 approached and started to push the line of officers back 15 then 20 feet. SPD wanted to 23 reestablish the line before officers were pushed farther. Several unheeded announcements DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 6 of 11 1 were made before SPD moved forward to reestablish the line. Members of the crowd then 2 began to throw items at officers and tried to take fencing from SPD, which resulted in OC 3 spray and blast balls being deployed. SPD officers continued to be hit by glass bottles, 4 fireworks, and improvised explosives. Multiple officers were injured and some required 5 medical treatment by the Seattle Fire Department. After that encounter, the violence 6 continued, and officers were reportedly hit by various projectiles such as bottles, and had 7 several lasers and strobe lights directed at their eyes. 8 24. Based on my assessment of preliminary reports, on June 7, 2020, at around 10:10 p.m., 9 officers on the ground observed that members of the crowd near the East Precinct broke and 10 weaponized protective fencing. Concurrently, officers also observed another group of about 11 20 individuals possessing shields, helmets, and gas masks attempted to create a disturbance, 12 while the crowd advanced slowly. SPD officers on scene also identified a possible IED 13 nearby. Officers reported seeing items that some individuals were taking out of their bags 14 and setting on the ground, including walkie talkies. Several specific warnings and dispersal 15 orders were given to the crowd to cease advancing. The crowd advanced to within 5 feet of 16 the officers, and while Officers continued to issue dispersal orders that went unheeded, they 17 did not use less lethal devices at this time. SPD received a report of a white male individual 18 in possible possession of a gun in his front pocket. The crowd continued to advance, while 19 some crowd members flashed lights into officers’ eyes. A physical disturbance was also 20 reported to have developed in the front of the crowd between and amongst the demonstrators. 21 Meanwhile, other demonstrators continued to throw items at National Guard and officers – 22 include one un-lit Molotov cocktail and a water bottle filled with chemical irritants. Officers 23 continued to advise the crowd to move back. The crowds began to block 13th and Pine with DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 7 of 11 1 rocks, boulders, and trash bins – which was the designated safe entry/exit point for SPD. 2 There was a report of a man with a gun in the area. The crowd also brought wooden shields 3 with nails in the front of the line. Continued dispersal orders were given, and largely 4 unheeded, while officers were being hit with fireworks, bottles, and projectiles causing 5 officer injury. OC and blast balls were deployed. Concurrently, the crowd began to surround 6 officers from three sides while continuing to throw fireworks and bottles at the officers. 7 25. Just after midnight on June 8, 2020, due to the life-safety circumstances presented to the 8 surrounded officers, CS gas was authorized and deployed per the amended policy, dispersing 9 the crowd for some time, but demonstrators remained in the area. Officers continued to be 10 hit with bottles and other projectiles, with other reports of armed individuals in the area. 11 There were also several dumpster and bonfires lit in the area. 12 26. During the day on June 8, 2020, SPD opened the area around the East Precinct for 13 demonstrators, boarding up the precinct and reducing police presence in the area. There has 14 not been any deployment of less lethal crowd control measures since that date, despite daily 15 demonstrations. 16 27. On June 9, 2020, there were demonstrations and/or marches in various places, including near 17 East Precinct, the greater Capitol Hill area, and inside City Hall for a number of hours in the 18 evening. None of the less lethal tools described above were utilized in the SPD response to 19 any protests, demonstrations or marches. 20 28. On June 10, 2020 there were again a variety of protests or marches throughout the City, 21 including outside three of the five police precincts. Again, none of the less lethal tools 22 described above were utilized in the SPD response to any protests, demonstrations or 23 marches. DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (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 27 Filed 06/11/20 Page 8 of 11 1 I declare under penalty of perjury under the laws of the State of Washington that the foregoing 2 is true and correct. 3 4 DATED this 11th day of June, 2020, in Seattle, Washington. 5 6 /s/ Thomas Mahaffey ASSISTANT CHIEF THOMAS MAHAFFEY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (20-cv-00887RAJ) - 8 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 27 Filed 06/11/20 Page 9 of 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 CERTIFICATE OF SERVICE I hereby certify that on June 11, 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: 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 DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (20-cv-00887RAJ) - 9 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 27 Filed 06/11/20 Page 10 of 11 1 2 3 [Attorneys for Plaintiffs] Carolyn S. Gilbert PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-3279 ( x ) Via Email carolyngilbert@perkinscoie.com 4 5 6 7 8 9 10 [Attorneys for Plaintiffs] Mallory Gitt Webster PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-3701 [Attorneys for Plaintiffs] Paige L. Whidbee PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-3629 ( x ) Via Email mwebster@perkinscoie.com ( x ) Via Email pwhidbee@perkinscoie.com 11 12 13 14 15 16 17 [Attorneys for Plaintiffs] Heath L. Hyatt PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-8000 [Attorneys for Plaintiffs] Joseph M. McMillan PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 583-8888 ( x ) Via Email hhyatt@perkinscoie.com ( x ) Via Email JMcMillan@perkinscoie.com 18 19 20 21 22 23 [Attorneys for Plaintiffs] Nitika Arora PERKINS COIE 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-3267 [Attorneys for Plaintiffs] David A. Perez PERKINS COIE ( x ) Via Email NArora@perkinscoie.com ( x ) Via Email DPerez@perkinscoie.com DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (20-cv-00887RAJ) - 10 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 27 Filed 06/11/20 Page 11 of 11 1 2 1201 3rd Avenue, Suite 4900 Seattle, WA 98101-3099 (206) 359-6767 6 [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 7 [Attorneys for Plaintiffs] 3 4 5 ( x ) Via Email changro@seattleu.edu 8 9 __Jennifer Litfin_________________________________ Legal Assistant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 DECLARATION OF THOMAS MAHAFFEY IN SUPPORT OF DEFENDANT CITY OF SEATTLE’S RESPONSE TO PLAINTIFFS’ MOTION FOR TRO (20-cv-00887RAJ) - 11 Peter S. Holmes Seattle City Attorney 701 5th Avenue, Suite 2050 Seattle, WA 98104-7095 (206) 684-8200