Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 1 of 11

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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UNITED STATES OF AMERICA,

ORDER

Plaintiff,

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CASE NO. C12-1282JLR

v.
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CITY OF SEATTLE,
Defendant.

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I.

INTRODUCTION

Before the court is Plaintiff United States of America’s (“the Government”)

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motion for a temporary restraining order (“TRO”) enjoining implementation of Seattle

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Police Chief Carmen Best’s directive to Seattle Police Department (“SPD”) officers on

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July 23, 2020, which implemented portions of the Seattle City Council’s Ordinance No.

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119805 banning certain crowd control weapons (“CCW”). (See TRO Mot. (Dkt. # 627);

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see also Fogg Decl. (Dkt. # 628) ¶ 2, Ex. A (“Directive”).) The Directive instructs

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officers to cease use of and possession of certain crowd control implements known as 40

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mm launchers, blast balls, CS gas, and oleoresin capsicum (“OC”) spray. (See Directive.)

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The court has reviewed the motion, the submissions related to the motion, the relevant

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portions of the record, and the applicable law. In addition, the court held a video and

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telephonic hearing on July 24, 2020, at 8:00 p.m., PDT, in which counsel for the parties

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and the Community Police Commission (“CPC”) participated. Having considered all of

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the foregoing, the court GRANTS the Government’s motion as more fully described

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below.

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II.

BACKGROUND

In 2011, the Government investigated SPD for a potential pattern or practice of

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unconstitutional policing and excessive force. (See Dkt. # 1-1.) As a result of its

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investigation, the Government issued findings that such a pattern or practice of excessive

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force existed. (See id.) Rather than pursue litigation to contest this finding, the City of

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Seattle opted to enter into the Consent Decree 1 that this court now administers. Although

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the City did not admit that the SPD engaged in a pattern or practice of unconstitutional

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policing and excessive force, the City did admit that there was an evidentiary basis for

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entry of the Consent Decree, including but not limited to the Government’s investigation.

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(See Findings and Conclusions (Dkt. # 14) ¶¶ 16, 27.)

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Under the Consent Decree, the City agreed to abide by a number of prescriptive
requirements designed to eliminate unconstitutional uses of force. (See generally

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The Settlement Agreement between the parties that the court entered an as order has
been known as the “Consent Decree.” (See Settlement Agreement (Dkt. # 3-1); Order
Provisionally Approving the Settlement Agreement (Dkt. # 8); Order Modifying and
Preliminarily Approving the Settlement Agreement (Dkt. # 13).)

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Consent Decree.) Specifically, the Consent Decree requires that the City submit policies

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related to the use of force, including the use of crowd control management weapons, to

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the Monitor and the Government before the policies are implemented. (Consent Decree

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¶ 177.) Since 2012, the City has followed these requirements, including for every

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revision for SPD’s use of force policies, since the Consent Decree’s inception. (See Dkt.

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## 569-2 to 569-4.) Likewise, the City followed this process in passing the current

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version of SPD’s crowd management policy. (See Dkt. ## 359-1, 363.)

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In the Consent Decree, the City also agreed to abide by a series of principles
including that officers’ actions should increase public safety, be effective and

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constitutional, embrace principles of procedural justice, that comply with uses of force

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that are consistent with the principles set forth in Graham v. Connor, 490 U.S. 368

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(1989). In other words, the City agreed that SPD’s uses of force shall be reasonable

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under the circumstances and that officers should use de-escalation techniques. (See

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Consent Decree ¶ 70.) Further, the City agreed to the governing principle that policing

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must be delivered to the people of Seattle in a manner that ensures both officer and the

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public’s safety. (Id. ¶ 5.)

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Recently, the City Council passed Ordinance No. 119805 banning certain crowd

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control weapons (“CCW Ordinance”). The CCW Ordinance prohibits the City’s use or

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possession of “crowd control weapons,” which are defined to include “kinetic impact

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projectiles, chemical irritants, acoustic weapons, direct energy weapons, water cannons,

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disorientation devices, ultrasonic cannons, or any other device that is designed to be used

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on multiple individuals for crowd control and is designed to cause pain or discomfort.”

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(See Notice (Dkt. # 625) at 2; see also id., Ex. 1 (attaching a copy of the CCW

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Ordinance) §§ 1(A), 1(B).) The CCW Ordinance makes an exception for the use of

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oleoresin capsicum spray (“OC spray”) outside the setting of a “demonstration, rally, or

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other First Amendment-protect event.” (Id. Ex. 1 § 1(D)(2).) However, when used, OC

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spray must not “land on anyone other than” “an individual in the process of committing a

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criminal act or presenting an imminent danger to others.” (Id.) Finally, the CCW

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ordinance also creates a private right of action for individuals against whom a prohibited

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crowd control weapon is used. (Id., Ex 1 §§ 1(E)-(F).) Because Mayor Durkan returned

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the CCW Ordinance to the City Council without a signature, the Ordinance will take

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effect on July 26, 2020. (See Notice at 3; see also id., Ex. 1 § 5 (“This ordinance shall

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take effect and be in force 30 days after it is approved by the Mayor, but if not approved

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and returned by the Mayor within ten days of presentation, it shall take effect as provided

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by Seattle Municipal Code Section 1.04.020.”).)

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On July 17, 2020, the City filed a notice with the court concerning the CCW

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Ordinance. (See Notice.) Because both Mayor Jenny Durkan and Chief Best asked the

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court to enjoin the effective date of the CCW Ordinance (see id. at 6), the court construed

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the notice as a motion for a TRO (see 7/22/20 Order (Dkt. # 626) at 3). However, the

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court declined to enjoin the effective date of the CCW Ordinance because the City had

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failed to demonstrate that it met the necessary standard for entry of this type of relief.

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(Id. at 4-7.) The court nevertheless ordered the City to provide the court with the Office

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of Police Accountability (“OPA”) and the Inspector General’s (“IG”) analysis of the

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CCW Ordinance, which OPA and IG have committed to provide to the City Council by

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August 15, 2020, and the court set a briefing schedule so that it could consider the

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interaction of the CCW Ordinance with the Consent Decree, as well as with any SPD

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policies that the Consent Decree governs. (Id. at 7-9.)

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On July 23, 2020, Chief Best issued her Directive to SPD officers to ensure their

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compliance with the CCW Ordinance. (Fogg Decl. ¶ 2, Ex. A.) Chief Best’s Directive

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becomes effective on July 25, 2020 at 3:00 a.m., PDT. (See id.)

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The Government maintains that removing all forms of less lethal implements from

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all police encounters, as Chief Best’s Directive and the CCW Ordinance will do, will not

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increase public safety nor provide the means for SPD officers to abide by the

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de-escalation mandate. The Government asks the court to grant a TRO prohibiting the

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implementation of Chief Best’s Directive. (See TRO Mot.) The court now considers the

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Government’s motion.

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III.

ANALYSIS

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The standard for issuing a TRO is the same as the standard for issuing a

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preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434

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U.S. 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be

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awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

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Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for

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preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to

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succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

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preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an

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//

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injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th

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Cir. 2009) (citing Winter, 555 U.S. at 20).

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As an alternative to this test, a preliminary injunction is appropriate if “serious

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questions going to the merits were raised and the balance of the hardships tips sharply in

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the plaintiff’s favor,” thereby allowing preservation of the status quo when complex legal

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questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell,

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632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the “serious questions” approach

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supports the court’s entry of a TRO only so long as the plaintiff also shows that there is a

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likelihood of irreparable injury and that the injunction is in the public interest. Id. at

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1135. The moving party bears the burden of persuasion and must make a clear showing

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that it is entitled to such relief. Winter, 555 U.S. at 22.

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A.

Serious Questions Going to the Merits and the Balance of Equities

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With the respect to the first factor, the court concludes that the Government has

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met the Ninth Circuit’s alternative test of serious questions going to the merits and the

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balance of hardships tipping sharply in the Government’s favor. If Chief Best’s Directive

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is implemented, the Government loses its right under the Consent Decree, in which the

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City voluntarily engaged, to review these policies prior to implementation. Further, the

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court agrees that by removing all forms of less lethal crowd control weapons from

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virtually all police encounters, the Directive and the CCW Ordinance will not increase

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public safety. This is so particularly because neither the CCW Ordinance nor the

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Directive provide time for police training in alternative mechanisms to de-escalate and

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resolve dangerous situations if the crowd control implements with which the officers

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have been trained are abruptly removed. As Chief Best stated: “Left only with the

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options of a baton, a Taser (effective distance of approximately 7-12 feet), and an

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officer’s body, the likelihood of greater injury – to both the officer and subject in those

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. . . empirically rare but foreseeable situations where some level of force is necessary –

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should be patent and concerning.” (Best Mem. (Dkt. # 625-2) at 4.)

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Further, the City is anticipating significant and potentially dangerous protests this

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weekend just as the Directive and CCW Ordinance go into effect. (See Fogg Decl. ¶ 4,

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Ex. C (attaching a letter from Chief Best to the City Council on July 23, 2020).) The

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issuance of this immediate change, without time for additional direction or training, is

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likely to result in officer confusion, particularly if the Directive or CCW Ordinance

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undergo additional changes after review by IG, OPA, the parties to this litigation, and the

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court. (See 7/22/20 Order at 8-9.) These additional changes to policy risk whipsawing

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officers through three varying sets of expectations in less than one month. The court

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concludes that such officer confusion presents risks to both the officers’ and the public’s

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safety.

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These substantial risks tip the balance of the equities in the Government’s favor.

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Further, the Government is not arguing that the CCW Ordinance may never be

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implemented. The Government merely seeks a pause until such time as the Chief Best’s

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Directive, and the underlying CCW Ordinance, can be reviewed pursuant to the terms of

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the Consent Decree. For these reasons, the court concludes that the Government has

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established serious questions going to the merits of its claim and that the balance of the

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equities tips sharply in the Government’s favor.

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B.

Irreparable Harm and the Public Interest

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The remaining factors of the Winter test also favor an injunction. There are both

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substantive and procedural grounds on which to find that the absence of injunctive relief

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will yield irreparable harm. First, substantively, the Government has established that

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implementation of the Directive and the CCW Ordinance will create a risk that SPD

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officers will resort to excessive force, which could violate both the Fourth Amendment

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and the terms of the Consent Decree relating to the use of force. “It is well established

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that the deprivation of constitutional rights ‘unquestionably constitutes irreparable

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injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v.

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Burns, 427 U.S. 347, 373 (1976)) (finding irreparable harm in case where the plaintiffs

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established likelihood of success on the merits of their Fourth Amendment claims).

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Second, procedurally, as discussed above, the Government, the Monitor, and the

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court are entitled to review “the policies, procedures, training curricula, and training

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manuals required to be written, revised, or maintained” by the Consent Decree before

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implementation by SPD. If the court allows SPD to implement the CCW Ordinance and

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the Directive without first complying with the procedural protections in the Consent

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Decree, that procedural harm cannot be undone. These substantive and procedural harms

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are particularly acute here given that the City has reason to believe that protests and

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public demonstrations in Seattle may occur shortly after the Directive and the Ordinance

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go into effect. (See Fogg Decl. ¶ 4, Ex. C (attaching July 23, 2020, letter from Chief Best

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to the City Council).

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//

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The court also finds that a temporary injunction that preserves the status quo of the

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Consent Decree and the processes put in place by the Consent Decree is in the public

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interest for similar reasons that the court finds a likelihood of irreparable harm. To the

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extent that implementation of the Directive and the Ordinance makes it difficult for the

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SPD to practice effective crowd management tactics and increases the risk of excessive

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force in violation of the Fourth Amendment, it is in the public interest to prevent that

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deprivation of constitutional rights. Melendres, 695 F.3d at 1002 (“[I]t is always in the

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public interest to prevent the violation of a party’s constitutional rights.”) (internal

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quotation marks omitted); Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)

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(“When a constitutional violation is likely . . . the public interest militates in favor of

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injunctive relief because it is always in the public interest to prevent violation of a party's

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constitutional rights.”) (internal quotation marks omitted).

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The court recognizes that preservation of the status quo does not ensure that SPD

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will refrain from using crowd control tactics that result in deprivations of constitutional

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rights. See Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t,

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No. C20-0887RAJ, 2020 WL 3128299, at *4 (W.D. Wash. June 12, 2020) (finding that

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the SPD’s use of force in response to recent protests likely violated the Fourth

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Amendment). However, the procedural and substantive provisions in the Consent Decree

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are in place to provide the court with mechanisms to monitor SPD’s practices and to

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work in hand with the parties to determine the most effective police practices for SPD. It

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is not in the public’s interest to eschew the protections that the parties and the court have

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spent nearly a decade fashioning the moment SPD engages in potentially unconstitutional

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practices. Instead, the court concludes that the public interest weighs in favor of

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preserving the status quo under the Consent Decree by reviewing SPD’s recent practices

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and the City’s recent crowd control proposals with input from all the appropriate

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stakeholders before determining the correct path forward under the terms of the Consent

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Decree.

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In summary, the court concludes that the Government has clearly met the standard
for issuing a TRO and therefore grants its motion.

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IV.

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CONCLUSION

Having concluded that the Government has met the standard for issuing a TRO,

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the court GRANTS the Government’s motion (Dkt. # 627) and issues a TRO against

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implementation of Chief Best’s Directive. The court further concludes that it would

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cause confusion not only for SPD officers, but also the public, if the court were to enjoin

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Chief Best’s Directive while leaving the CCW Ordinance in place. Accordingly, the

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court’s TRO will also enjoin the effective date of the CCW Ordinance. The court does

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not enjoin the CCW Ordinance itself, but rather enjoins only the Ordinance’s

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implementation date until such time as the procedures the City agreed to follow in the

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Consent Decree concerning SPD use of force and crowd control policies are followed.

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Finally, the court notes that nothing in this order is contrary to the preliminary

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injunction that the Honorable Richard A. Jones issued in Black Lives Matter Seattle-King

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County, et al., v. City of Seattle, No. C20-0887RAJ (W.D. Wash.), Dkt. # 42. Judge

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Jones’ preliminary injunction is the current status quo and remains in effect.

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//

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Pursuant to Rule 65(b)(2), this TRO will expire 14 days after entry unless before

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that time the court, for good cause, extends it for a like period or the adverse party

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consents to a longer extension. See Fed. R. Civ. P. 65(b)(2). The court ORDERS the

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parties to meet and confer to set a schedule for briefing on a preliminary injunction and

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file a joint status report concerning the same no later than Wednesday, August 1, 2020.

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Dated this 24th day of July, 2020.

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A

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JAMES L. ROBART
United States District Judge

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