Case 2:20-cv-00887-RAJ Document 51-1 Filed 07/27/20 Page 1 of 6

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THE HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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BLACK LIVES MATTER SEATTLEKING COUNTY, ABIE EKENEZAR,
SHARON SAKAMOTO, MURACO
KYASHNA-TOCHA, ALEXANDER
WOLDEAB, NATHALIE GRAHAM,
AND ALEXANDRA CHEN,

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[PROPOSED] ORDER GRANTING
PLAINTIFFS’ MOTION FOR CONTEMPT
NOTE ON MOTION CALENDAR:
July 29, 2020

Plaintiffs,

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No. 2:20-cv-00887-RAJ

v.
CITY OF SEATTLE,
Defendant.

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This matter comes before the Court on Plaintiffs’ motion to enforce this Court’s
preliminary injunction and for a finding of contempt.
The Court, having thoroughly considered Plaintiffs’ motion and the declarations and

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exhibits filed in support of the motion, Defendant City of Seattle’s opposition (if any), the

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applicable law, the relevant portions of the record, and the arguments of counsel, hereby finds

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the City of Seattle IN CONTEMPT of this Court’s preliminary injunction entered June 16, 2020

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(ECF 42). Accordingly, the Court GRANTS Plaintiffs’ motion.

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FINDINGS
1.

On June 12, 2020, the Court granted Plaintiffs’ motion for a temporary restraining

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order enjoining the City from using chemical weapons and projectiles against peaceful

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protesters. See ECF 34. The Court found that the SPD “has in fact used less-lethal weapons

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disproportionately and without provocation” and that Plaintiffs were likely to succeed on the

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merits of their First and Fourth Amendment claims against the City. Id. at 3.

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2.

The temporary restraining order enjoined the City from “employing chemical

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irritants or projectiles of any kind against persons peacefully engaging in protests or

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demonstrations.” ECF 34 ¶ 1. It noted that individual officers could take “necessary, reasonable,

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proportional, and targeted action to protect against a specific imminent threat of physical harm

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to themselves or identifiable others or to respond to specific acts of violence or destruction of

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property” but that chemical weapons and projectiles could not be “deployed indiscriminately

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into a crowd” and, “to the extent reasonably possible, they should be targeted at the specific

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imminent threat” justifying their deployment. Id. (emphasis added).

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3.

On June 17, 2020, the parties stipulated to a preliminary injunction with terms

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identical to the TRO extending the injunction through September 30, 2020. See ECF 42. The

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Court entered the agreed preliminary injunction.

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4.

On June 26, 2020, the Seattle City Council passed Ordinance 119805 banning the

crowd control weapons at issue in this suit.
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In the evening of Friday, July 24, 2020, the Honorable James Robart granted an

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emergency motion by the Department of Justice to temporarily enjoin Ordinance 119805 until it

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could be reviewed under the terms of a consent decree entered into by the City of Seattle in a

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2011 suit by the United States alleging a pattern of excessive use of force by Seattle police. In

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granting the DOJ’s motion for a TRO, Judge Robart made clear that this Court’s order “is the

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current status quo” with respect to crowd control weapons “and remains in effect.” ECF 630,

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United States v. City of Seattle, No. 12-cv-01282-JLR (W.D. Wash).
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6.

The following day, Saturday, July 25, 2020, the Seattle Police Department

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deployed hundreds of chemical weapons and projectiles—including non-directional canisters of

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gas, handheld pepper spray, flash bang grenades, blast balls, pepper balls, and foam-tipped

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projectiles—at protesters.

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7.

The evidence in the record shows that SPD used these weapons on July 25, 2020

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in a way that was not necessary, reasonable, proportional, and targeted to address a specific

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imminent threat of physical harm or to respond to specific acts of violence or property

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destruction.

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8.

Rather, the record demonstrates that SPD repeatedly deployed chemical weapons

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and projectiles indiscriminately into crowds and used these weapons against people who were

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peacefully engaging in protests or demonstrations and absent any specific or imminent threat.

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9.

Likewise, the record demonstrates that SPD repeatedly deployed chemical

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weapons and projectiles indiscriminately at legal observers, medics, and journalists, and in some

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instances, expressly targeted legal observers, medics, and journalists. No legal observer, medic,

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or journalist presented a specific or imminent threat of violence to persons or property.

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10.

The Court finds that the City has failed to take all reasonable steps within its

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power to comply with this Court’s Preliminary Injunction (ECF 42). Accordingly, I hold the City

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in contempt.

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11.

To ensure the City’s compliance with the letter and spirit of this Court’s

Preliminary Injunction, the Court finds that an order setting forth additional terms is necessary.

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Accordingly, the Court hereby ORDERS that this Court’s preliminary injunction order
(ECF 42) is AMENDED to include the following terms:
1. The City of Seattle, including the Seattle Police Department and any other officers,

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departments, agencies, or organizations under the Seattle Police Department’s control

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(collectively, “the City”), are enjoined from:
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a. Using any force against medical personnel, members of the media, or legal

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observers who are clearly identified or known to police as such;

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b. Using chemical weapons or projectiles of any kind against any individuals

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peacefully present at a protest—including protesters and people who are

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identifiable as, or known to police to be, journalists, legal observers, or

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medics—without specific reason to believe that (1) such force is necessary to

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stop the target of the force in the commission of an act of violence or serious

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property destruction, or (2) that they pose a specific, imminent threat of harm

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to themselves or identifiable others;

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c. Using chemical weapons or projectiles of any kind to re-route a protest or

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cause protesters to physically retreat from a space, unless such re-routing or

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retreat is necessary to prevent specific imminent harm to person or property;

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d. Using chemical weapons or projectiles of any kind without first issuing a

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warning that is audible to everyone in the area where the weapons are

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threatened to be deployed, and allowing them sufficient time, space, and

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opportunity to leave the area;

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e. Using chemical weapons or projectiles of any kind against people who are in

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retreat, whether or not police have ordered dispersal;

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f. Using non-directional canisters of chemical agents, blast balls, or any other

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projectiles infused with pepper spray or any other chemical agent, which are,

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by their nature, indiscriminate; or

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g. Using any more force than is necessary to prevent a specific imminent threat

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of physical harm or the destruction of property.
2. A supervisory level officer must determine that the use of projectiles or non-

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directional chemical weapons is necessary and consistent with the terms of the

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Preliminary Injunction and this Order before SPD officers can deploy these weapons
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at a protest. This applies to non-directional canisters of tear gas or pepper spray, blast

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balls, flash bang grenades, pepper balls, rubber bullets, or foam-tipped projectiles; it

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does not apply to handheld pepper spray targeted at a specific imminent threat of

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physical harm to an officer or identifiable others or to respond to specific acts of

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violence or serious destruction of property.

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3. The City shall ensure that a copy of this order is distributed to every Seattle Police

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Department officer within 24 hours of the issuance of this Order, and certify to the

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Court that it has done so.

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4. The City shall provide Plaintiffs with daily logs detailing SPD’s use at a protest of

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any of the weapons covered by this Order, including the date and time force was

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used, the type and quantity of munitions used, the name and badge number of the

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officer who used the weapons, and the justification for the use of weapons.

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5. These provisions clarify the terms of this Court’s Preliminary Injunction (ECF 42)

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and are hereby added to that Preliminary Injunction, the entirety of which remains

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fully in effect. To the extent that there is any apparent conflict between this Order and

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the Preliminary Injunction (ECF 42), the terms of this Order shall govern.

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6. This Order and the Preliminary Injunction will expire on September 30, 2020, unless

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they are extended or terminated by stipulation of the parties.
7. As a sanction for violating this Court’s order, the City is ordered to pay Plaintiffs’

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reasonable attorneys’ fees in bringing this motion. Plaintiffs are ordered to file a fee

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petition with this Court within seven (7) days.

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DATED this ___ of ____________, 2020.

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[PROPOSED] CONTEMPT ORDER
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By:

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HONORABLE RICHARD A. JONES
United States District Judge

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[PROPOSED] CONTEMPT ORDER
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