Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 1 of 21

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Hon. Thomas S. Zilly
Note on Motion Calendar: August 21, 2020
(Oral Argument Requested)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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HUNTERS CAPITAL, LLC, a Washington
limited liability company, NORTHWEST
LIQUOR AND WINE LLC, a Washington
limited liability company, SRJ
ENTERPRISES, d/b/a CAR TENDER, a
Washington corporation, THE RICHMARK
COMPANY d/b/a RICHMARK LABEL, a
Washington company, SAGE PHYSICAL
THERAPY PLLC, a Washington professional
limited liability company, KATHLEEN
CAPLES, an individual, ONYX
HOMEOWNERS ASSOCIATION, a
Washington registered homeowners
association, WADE BILLER, an individual,
MADRONA REAL ESTATE SERVICES
LLC, a Washington limited liability company,
MADRONA REAL ESTATE INVESTORS
IV LLC, a Washington limited liability
company, MADRONA REAL ESTATE
INVESTORS VI LLC, a Washington limited
liability company, 12TH AND PIKE
ASSOCIATES LLC, a Washington limited
liability company, REDSIDE PARTNERS
LLC, a Washington limited liability company,
MAGDALENA SKY, an individual, OLIVE
ST APARTMENTS LLC, a Washington
limited liability corporation, and
BERGMAN’S LOCK AND KEY SERVICES

No.

2:20-CV-00983

DEFENDANT’S MOTION TO DISMISS
AND DENY CLASS CERTIFICATION

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 1
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 2 of 21

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LLC, a Washington limited liability company,
on behalf of themselves and others similarly
situated,
Plaintiffs,

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vs.

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CITY OF SEATTLE,
Defendant.

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Under Federal Rules of Civil Procedure 12(b)(6) and 23, the City moves to dismiss plaintiffs’

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Complaint for failure to state a claim upon which relief can be granted and to deny class certification.
I.

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INTRODUCTION

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Plaintiffs seek to hold the City responsible for the acts of private parties in and around the

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Capitol Hill Organized Protest (“CHOP”).1 However, the City is not liable for those private acts and

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the complaint fails to state a claim as a matter of law. The City took measured, appropriate steps to

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rapidly unfolding events in responding to the CHOP. As has been widely reported, the City supported

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the exercise of First Amendment rights by peaceful protesters in public streets and a park in the

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Capitol Hill neighborhood of Seattle following the killing of George Floyd in Minneapolis.2 Plaintiffs

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expressly “support the free-speech rights of many of those who gathered on Capitol Hill” but are

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unclear about whose free-speech rights they do not support. Complaint at ¶1. As the amended

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The CHOP has also been referred to as the Capitol Hill Occupied Protest and the Capitol Hill Autonomous Zone
(“CHAZ”).
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“The protections afforded by the First Amendment are nowhere stronger than in streets and parks, both categorized for
First Amendment purposes as traditional public fora. In such fora, the government's right ‘to limit expressive activity [is]
sharply circumscribed.’ Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. 948. Among traditional public fora, public parks …
are especially important locales for communication among the citizenry, as they have immemorially been held in trust for
the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions.” Berger v. City of Seattle, 569 F.3d 1029, 1035–36 (9th Cir. 2009) (some
citations, quotations, and footnotes omitted).

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 2
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 3 of 21

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complaint acknowledges, when opportunistic criminal and other activity in and around the CHOP

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overshadowed important free speech activity, the City cleared the CHOP.

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Plaintiffs allege they were deprived of their rights to due process and equal protection and that

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they suffered takings of their property because the City did not act sooner to clear the CHOP. They

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bring federal claims under 42 USC §1983. However, plaintiffs fail to state any claims upon which

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relief may be granted.

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Governments are not required to prevent third-party conduct, including criminal conduct,

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absent rare exceptions to the rule not presented here. Although they attempt to blame the City for

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private acts, the conduct that the plaintiffs complain of is that of private parties who plaintiffs have

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not named in this suit. Their complaint also fails to comply with requirements for a damages class

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under FRCP 23. This Court should dismiss plaintiffs’ complaint with prejudice. If the Court does not

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dismiss the Complaint outright, it should deny class certification.
II.

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FACTS

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As a purported class, plaintiffs allege that the City violated their civil rights by leaving the

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East Precinct building and not clearing the CHOP sooner. Complaint at ¶¶3, 35-38.3 As required in a

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Rule 12(b)(6) motion, all well-pled factual allegations in the Complaint are treated as true for

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purposes of this motion. They note that City barriers were used by protesters to block City streets

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and vehicular access to residences and buildings. Id. at ¶¶4, 7. They allege that the City is responsible

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for the acts of those they allege are “CHOP participants” because the City “endorse[d], enable[d], and

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Plaintiffs suggest that the City cleared the CHOP in response to a threatened TRO motion from Plaintiffs. Although it
has no bearing on the motion before the Court, the City feels compelled to note that plaintiffs are mistaken. The City made
its decision to clear the CHOP based on events in the CHOP, not this lawsuit. That the clearing of the CHOP was a success
speaks to the City’s careful approach and operational planning and provides no support for the contention that there was
undue delay on the City’s part.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 3
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 4 of 21

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participate[d] in the occupation of CHOP.” E.g., id. at ¶5.4 Generally, plaintiffs complain that they

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were harmed by the criminal and other acts of CHOP participants, not City actors. Id. ¶¶8-9, 40-48,

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51-53.

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Plaintiffs complain that the City’s non-enforcement of laws led to pervasive crimes of

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vandalism by non-City actors. Id. at ¶9. They allege that the City’s support for the Black Lives Matter

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movement and attempts to find a peaceful resolution to the CHOP amounts to an endorsement of

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criminal and other activity. Id. at ¶10.

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As a group, plaintiffs complain of a variety of harm, including graffiti, different provision of

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emergency services inside the CHOP than outside it, and loss of vehicular access to their property

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stemming from CHOP participants’ use of barriers. They complain that the City did not engage in

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regular policing within CHOP and declined to enforce criminal laws. Id. at ¶174, 219. They allege

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the City “enabled” CHOP participants to block vehicular access and physically aided CHOP

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participants by leaving barriers in the area, providing more barriers, and providing portable toilets

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and other equipment. ¶¶177, 179. They further contend that the City “effectively authorized” the

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actions of CHOP participants by allowing CHOP to exist for weeks. Id. at ¶181.

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Individual members of the purported class make other complaints, including that the “police

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refused to protect… property.” Id. at ¶91. They also allege lost revenue, lost access, feeling unsafe,

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decreased property values, physical property damage, reduced rents, criminal activity of CHOP

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participants, non-response to 911 calls, inability to receive deliveries, and harassment by CHOP

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participants. Id. at ¶¶85, 91, 99, 104-106, 135, 143, 149.

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Although the City uses the term “CHOP participants” to match up with the amended complaint here and elsewhere, it
does not agree that it is appropriate to lump the many peaceful protesters who participated or visited the CHOP into a
group with those committing crimes and the other acts identified in the amended complaint.
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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 4
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 5 of 21

III.

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A.

ARGUMENT AND AUTHORITIES

Motion to Dismiss Standard

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Dismissal under Rule 12(b)(6) requires a court to determine “whether the complaint's factual

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allegations, together with all reasonable inferences, state a plausible claim for relief.” Cafasso, U.S.

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ex rel. v. Gen. Dynamics C4 Sys. Inc., 637 F.3d 1047, 1054 (9th Cir. 2011) (citing Ashcroft v.

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Iqbal, 556 U.S. 662, 677-78, 129 S.Ct. 1937, 1949–50 (2009)). “A claim has facial plausibility when

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the plaintiff pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949 (citation

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omitted). When determining the sufficiency of a claim, a court must “accept factual allegations in the

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complaint as true and construe the pleadings in the light most favorable to the non-moving

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party.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (citation and internal quotation marks

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omitted). The court, however, need “not assume the truth of legal conclusions merely because they

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are cast in the form of factual allegations.” Id. “[C]onclusory allegations of law and unwarranted

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inferences are insufficient to defeat a motion to dismiss.” Id.; see also Iqbal, 556 U.S. at 678, 129

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S.Ct. at 1949 (“A pleading that offers labels and conclusions or a formulaic recitation of the elements

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of a cause of action will not do.”) (Citations and internal quotation marks omitted).

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B.

§1983 claims require allegations that the government directly caused harm: plaintiffs’
complaint does not allege such harm

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A municipality cannot be liable under §1983 on a respondeat superior theory. Rather, liability
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only attaches where the municipality itself causes the constitutional violation through a “policy or

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custom, whether made by its lawmakers or those whose edicts or acts may be fairly said to represent
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official policy.” Monell v. Department of Social Services, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56

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L.Ed.2d 611 (1978). Thus, municipal liability in a section 1983 case may be premised upon (1) an
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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 5
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 6 of 21

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official policy; (2) a “longstanding practice or custom which constitutes the standard operating

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procedure of the local government entity; (3) the act of an “official whose acts fairly represent official

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policy such that the challenged actions constituted official policy; or (4) where “an official with final

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policy making authority delegated that authority to, or ratified the decision of, a subordinate.” Price

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v. Sery, 513 F.3d 962, 966 (9th Cir. 2008).

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To maintain a claim under §1983, a Plaintiff must show that (1) the conduct complained of

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was committed by a person acting under color of state law, and that (2) the conduct deprived a person

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of a right, privilege, or immunity secured by the Constitution or laws of the United States. Parratt v.

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Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other

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grounds, Daniels v. Williams, 474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). “The state-

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action element in § 1983 excludes from its reach merely private conduct, no matter how

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discriminatory or wrongful.” Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th

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Cir. 2010)(internal quotation marks and citations omitted ). It exists to “avoid[ ] imposing on the

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State, its agencies or officials, responsibility for conduct for which they cannot fairly be

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blamed.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982).

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Here, while City officials were unmistakably supportive of peaceful protected speech and seriously

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concerned about accompanying criminal activity, even had they exhibited the total nonchalance about

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CHOP activities which Plaintiffs’ claim, “[a]ction taken by private entities with the mere approval or

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acquiescence of the State is not state action.” Caviness, 590 F.3d at 817. Regarding alleged failures

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to act, such omissions are not actionable under section 1983 unless they involve a failure to perform

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a legally required act. Lacey v. Maricopa County, 693 F.3d 896, 917 (9th Cir. 2012).

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Generally, a municipality is liable under Monell only if a municipal policy or custom was the

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“moving force” behind the constitutional violation. See Galen v. County of Los Angeles, 477 F.3d
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 6
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 7 of 21

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652, 667 (9th Cir. 2007). There must be “a direct causal link between a municipal policy or custom

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and the alleged constitutional deprivation.” City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct.

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1197, 103 L.Ed.2d 412 (1989). In other words, there must be proximate cause. The Supreme Court

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has noted that “[p]roximate cause is often explicated in terms of foreseeability or the scope of the risk

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created by the predicate conduct.” Paroline v. United States, 572 U.S. 464, 134 S.Ct. 1710, 1719, 188

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L.Ed.2d 714 (2014). “A requirement of proximate cause thus serves, inter alia, to preclude liability

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in situations where the causal link between conduct and result is so attenuated that the consequence

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is more aptly described as mere fortuity.” Id.

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Plaintiffs’ attempt to draw connections between City acts and CHOP participant activity is

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not supported by the facts or the law. The City did nothing that directly exposed plaintiffs to harms.

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The harms that the plaintiffs allege occurred over a period of weeks, and plaintiffs have alleged “mere

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acquiescence” inadequate to support their claim. See, e.g. Caviness, 590 F.3d at 812. There are no

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allegations that the City directly interacted with plaintiffs and left them in a worse position than the

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one they were in before the City interacted with them.

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The plaintiffs simply do not, and cannot, allege that any City action directly injured them.

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Rather, they complain of City inaction. Under well-established case law, their Complaint falls short

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of raising any legally viable claim. Plaintiffs were not directly harmed by the City’s allowance of

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first-amendment activity, provision of sanitation services to protesters, attempts to improve safety in

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the area with barriers, and temporary departure from the East Precinct building. Rather, the harm they

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identify was caused by private actors, and Plaintiffs allege the City violated their rights by (1) not

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preventing such harm from occurring in the first place and (2) not preventing additional harm once

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the City was on notice such harm was occurring. As explained below, the City is not liable where it

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 7
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 8 of 21

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does not act to prevent private conduct. Were it otherwise, the City would face liability for all crime

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that occurred within the City.

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C.

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The Due Process Clause does not require governments to exercise discretion to prevent
private actors from harming others
“[N]othing in the language of the Due Process Clause itself requires the State to protect the
life, liberty, and property of its citizens against invasion by private actors. The Clause is
phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels
of safety and security. It forbids the State itself to deprive individuals of life, liberty, or
property without “due process of law,” but its language cannot fairly be extended to
impose an affirmative obligation on the State to ensure that those interests do not come
to harm through other means.”

DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 195, 109 S. Ct. 998, 1003, 103 L.
Ed. 2d 249 (1989)(emphasis added). “As a general rule, members of the public have no constitutional
right to sue [public] employees who fail to protect them against harm inflicted by third parties.” L.W.
v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (citing DeShaney 489 U.S. at 197). This rule is rooted
in the discretionary nature of law enforcement activity:

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The deep-rooted nature of law-enforcement discretion, even in the presence of seemingly
mandatory legislative commands, is illustrated by Chicago v. Morales, 527 U.S. 41, 119 S.Ct.
1849, 144 L.Ed.2d 67 (1999), which involved an ordinance that said a police officer “ ‘shall
order’ ” persons to disperse in certain circumstances, id., at 47, n. 2, 119 S.Ct. 1849. This
Court rejected out of hand the possibility that “the mandatory language of the ordinance ...
afford[ed] the police no discretion.” Id., at 62, n. 32, 119 S.Ct. 1849. It is, the Court
proclaimed, simply “common sense that all police officers must use some discretion in
deciding when and where to enforce city ordinances.” Ibid. (emphasis added).

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Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 761, 125 S. Ct. 2796, 2806, 162 L. Ed. 2d 658

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(2005). The “benefit that a third party may receive from having someone else arrested for a crime

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generally does not trigger protections under the Due Process Clause, neither in its procedural nor in

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its ‘substantive’ manifestations.” Id. at 768; 125 S.Ct. at 2810. The Fourteenth Amendment and Civil

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Rights Act of 1871 “did not create a system by which police departments are generally held

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financially accountable for crimes that better policing might have prevented.” Id. Again, plaintiffs

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 8
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 9 of 21

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complain not of direct harm from City action, but that the City failed to stop private actors from

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causing harm. Absent an exception to the general rule that no claim arises from an alleged failure to

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exercise discretion to enforce laws—none applies here—the claim fails as a matter of law.

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Perhaps in an effort to avoid the rule that failing to take discretionary acts cannot support

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liability, plaintiffs identify a municipal code provision, claim with no factual support that it applies

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here, and then allege that the statute required a single mandatory action that the City failed to take.

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This allegation is defeated on the face of the pleadings because Plaintiffs admit the protesters “lacked

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a permit”, Complaint at ¶218. They attempt to argue that the City was required to “designate an

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alternative proposal” i.e. impose conditions on the CHOP by permit to reduce its impacts on the

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neighborhood. However, by the plain terms of SMC 15.52.060, the City is only required to take the

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action plaintiffs suggest when it denies a permit application that meets certain statutory criteria. See

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SMC 15.52.060(B) (If the Special Events Committee denies an application for a special event permit

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for a “free speech” event, “the City shall designate an alternative proposal and may impose

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conditions….”). The City did not fail to take any mandatory action.

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D.

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The “state-created danger” exception does not apply here: the City did not directly
place plaintiffs in danger
Again, “[t]he general rule is that a state is not liable for its omissions and the Due Process

Clause does not impose a duty on the state to protect individuals from third parties.” Martinez v. City

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of Clovis, 943 F.3d 1260, 1271 (9th Cir. 2019) (citations and quotations omitted). The Due Process
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Clause does not provide a baseline level of protection against the acts of private parties that the City
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must provide to persons or property. The City anticipates that plaintiffs will argue the “state-created
danger” exception applies here. This exception only applies, however, when government employees

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affirmatively place a plaintiff in a position of danger which the plaintiff would not have otherwise
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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 9
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 10 of 21

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faced. DeShaney, 489 U.S. at 197, 109 S.Ct. 998. A plaintiff must prove three elements to prevail on

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a “state-created danger” argument. “First, she must show that the officers’ affirmative actions created

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or exposed her to an actual, particularized danger that she would not otherwise have faced. Second,

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she must show that the injury she suffered was foreseeable. Third, she must show that the officers

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were deliberately indifferent to the known danger.” Martinez, 943 F.3d at 1271. The City discusses

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how the complaint fails to allege facts supporting the first and third elements of this test below.5
1. The City did not expose plaintiffs to actual or particularized danger that plaintiffs
would not have faced but for City action.

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Plaintiffs simply do not plead a single circumstance where City action exposed them to an
actual, particularized danger. In Johnson v. City of Seattle, 474 F.3d 634, 635 (9th Cir. 2007) the
Ninth Circuit rejected the argument that by failing to engage in more aggressive policing in response
to civil unrest, the City placed Johnson and others in “a position of enhanced danger.” The court
rejected that argument because: “the more passive operational plan that the police ultimately
implemented did not violate substantive due process because it ‘placed [the Pioneer Square Plaintiffs]
in no worse position than that in which [they] would have been had [the Defendants] not acted at
all.’ DeShaney, 489 U.S. at 201, 109 S.Ct. 998.).” See also Munger v. City of Glasgow Police Dep't,
227 F.3d 1082, 1086 (9th Cir. 2000) (relevant inquiry is “whether the officers left the person in a
situation that was more dangerous than the one in which they found him.”).

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In Hernandez v. City of San Jose, 897 F.3d 1125, 1129, 1133-35 (9th Cir. 2018) the Ninth
Circuit considered whether the created-danger exception applied to police officers who affirmatively
directed political rally attendees into a “crowd of violent anti-Trump protesters” and the attendees
were beaten, robbed and/or targeted by protesters throwing objects like eggs and bottles. Because the

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While the City’s position is that Plaintiff cannot establish any of the three elements of the test, for the purposes of the
Rule 12 motion, the City will limit its discussion to two of the three.
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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 10
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 11 of 21

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rally attendees alleged that they would have made it to safety but for being affirmatively directed into

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the crowd of protesters, they satisfied this element of the state-created danger test. Id.

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Plaintiffs do not allege a particularized danger. Rather, they generally complain about private

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criminal conduct, and the City’s knowledge of such crime. It is well-established, however, that these

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types of complaints are not enough to state a viable cause of action. This matter is controlled by

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Johnson v. City of Seattle and Munger.

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2. Plaintiffs complaint fails to allege facts sufficient to show deliberate indifference.

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Plaintiffs similarly cannot establish the third required element of a “state created danger”

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exception. “Deliberate indifference is a stringent standard of fault, requiring proof that a municipal

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actor disregarded a known or obvious consequence of his action. It requires a culpable mental state,

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and the standard [the Court] appl[ies] is even higher than gross negligence.” Hernandez 897 at 1135.

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To meet the culpable mental state requirement, a plaintiff must demonstrate that governmental actors

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both recognized and intended to expose plaintiff to an unreasonable risk, and that the exposure was

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likely to lead to injury. Id.

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For reasons discussed above, plaintiffs do not come close to alleging facts needed to support

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an argument the City intended to expose plaintiffs to an unreasonable risk. They argue that the City

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should have known generalized increased criminal activity would result from City acts. That is not

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enough, even if it were true that City acts were the causal factor in any complained-of criminal

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activity, which it is not. Plaintiffs have simply not pled any facts that support an inference that the

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City took action for the purpose of exposing the plaintiffs to a particularized unreasonable risk of

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harm.

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 11
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 12 of 21

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E.

A partial and temporary loss of access to property is not, as a matter of law, a
governmental taking

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The federal and state constitutions require compensation when public use results in private
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property being taken or damaged. U.S. Const., Fifth Amendment, WA Const. Art. I Section 16.
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Washington law controls whether a property interest exists on a Fifth Amendment takings claim. See,
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e.g. Pande Cameron & Co. of Seattle, Inc. v. Cent. Puget Sound Reg’l Transit Auth., 610 F. Supp. 2d
1288, 1303–06 (W.D. Wash. 2009), aff’d, 376 F. App’x 672 (9th Cir. 2010) (considering and rejecting
a temporary loss of access claim). “The term inverse condemnation is used to describe an action

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alleging a governmental taking brought to recover the value of property which has been appropriated
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in fact, but with no formal exercise of the power.” Bodin v. City of Stanwood, 79 Wash.App. 313,

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320, 901 P.2d 1065 (1995), aff'd, 130 Wash.2d 726, 927 P.2d 240 (1996) (quotation and citation
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omitted). “An inverse condemnation plaintiff must prove a ‘taking’ greater than mere tortious
interference.” Id. (quotation and citation omitted). Plaintiffs allege their property access was

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impaired, but not eliminated, for three weeks.
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Under Washington law, “temporary interferences with a property right are not constitutional
takings of property.” Id. at 1301-02 (citing Northern Pacific Railway Co. v. Sunnyside Valley
Irrigation Dist., 85 Wash.2d 920, 924, 540 P.2d 1387 (Wash.1975)). “[T]here is no authority under
Washington law for a temporary ‘right of access’ takings claim. While there is authority for a
‘temporary taking’ claim in Washington, that is only in the context of governmental regulation of
property that has deprived the owner of all economical use of his or her property.” Pande Cameron

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& Co. of Seattle, Inc., 610 F. Supp 2d at 1305 (citing Guimont v. Clarke, 121 Wash.2d 586, 598, n.
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3, 854 P.2d 1 (1993) and City of Seattle v. McCoy, 101 Wash.App. 815, 829, 4 P.3d 159 (2000)).
22
Here, none of the plaintiffs even allege they lost the entire economical use of property, and certainly
23
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 12
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 13 of 21

1

not because of governmental action or regulation. Such government action is clearly distinguishable

2

from the actions of CHOP participants.

3

Analogous takings claims made during periods of civil unrest have been rejected. For

4

example, in Citoli v. City of Seattle, 115 Wn. App. 459, 465–66, 61 P.3d 1165, 1169 (2002), the court

5

rejected the claim that the City and Puget Sound Energy inversely condemned property by shutting

6

off services to a building for a week in response to occupation by protesters. Claims of failure to

7

prevent damage and affirmative damage to buildings by government during civil unrest and war were

8

also rejected in National Bd. of Young Men's Christian Ass'ns v. United States, 395 U.S. 85, 89 S.Ct.

9

1511, 23 L.Ed.2d 117 (1969) and United States v. Caltex (Philippines), Inc., 344 U.S. 149, 73 S.Ct.

10

200, 97 L.Ed. 157 (1952). Notably, plaintiffs do not allege that the government engaged in any

11

conduct that directly damaged their property.

12
13

In Citoli, the court quoted Justice Harlan’s concurrence in National Bd. of Young Men's
Christian Ass'ns, 395 U.S. at 95-96, 89 S. Ct. 1511 with approval:

18

“If courts were required to consider whether the military or police protection afforded a
particular property owner was ‘adequate,’ they would be required to make judgments which
are best left to officials directly responsible to the electorate. In the present case, for example,
petitioners could argue that it was possible for the troops to maintain their position in front of
the buildings if they had been willing to kill a large number of rioters. In rebuttal, the
Government could persuasively argue that the indiscriminate use of deadly force would have
enraged the mob still further and would have increased the likelihood of future disturbances.
Which strategy is a court to accept? Clearly, it is far sounder to defer to the other duly
constituted branches of government in this regard.

19

Citoli v. City of Seattle, 115 Wn. App. at 491, 61 P.3d at 1182 (2002). In another case, the District

20

Court for the District of Columbia rejected similar allegations to those made here:

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17

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22

Plaintiff's allegations that the riot control program formulated and adopted by officials of the
United States and the District of Columbia intentionally sacrificed private property in
disturbance zones in order to further the public purpose of disturbance control, likewise do
not establish a Fifth Amendment taking of property for public use without just compensation.

23
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 13
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 14 of 21

1

Monarch Ins. Co. of Ohio v. D.C., 353 F. Supp. 1249, 1255-1256 (D.D.C. 1973), aff’d sub nom Aetna

2

Insurance Co. v. U.S. 497 F.2d 683 (1974).

3

Notwithstanding the same argument being considered and rejected by courts, as in Citoli,

4

National Bd. of Young Men's Christian Ass'ns, and Monarch Ins., the plaintiffs propose that if the

5

government had used a different strategy in response to civil unrest, plaintiffs might have suffered

6

less damage from private parties. Such proposals do not support legally viable takings or other claims.

7

F.

Plaintiffs arguments under the Equal Protection Clause also fail: the City did not
discriminate against them, nor violate their free speech rights

8
Plaintiffs allege that the City violated the Equal Protection clause by expressing support for
9
the political message of some CHOP participants, providing support for CHOP participants even
10
though the participants lacked a permit, declining to enforce criminal and civil laws against CHOP
11
participants, and not providing more police services inside the CHOP. Complaint at ¶¶217-219. They
12
allege that because the City engaged in different policing, other law enforcement and provision of
13

governmental services outside the CHOP, the City violated the Plaintiffs’ civil rights by expressing a

14
preference for the CHOP participants’ speech. Id. at ¶¶220-223. They further contend that CHOP
15
participants took action against the plaintiffs based on speech, but do not allege the City did anything
16

because of the plaintiffs’ speech. Id. at ¶224. Plaintiffs appear to argue that the City violates the Equal

17
Protection clause of the Fourteenth Amendment if it does not provide the same level of policing in
18
different parts of the City, duplicating their due process arguments. Plaintiffs again fail to delineate
19
between peaceful, law-abiding protesters and others who then came to the CHOP area, and between
20
affirmative acts by the City such as provision of sanitation services (which decreased some harms
21

about which Plaintiffs’ complain, like feces in the area) and times when the City did not act as

22
Plaintiffs would have preferred.
23
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 14
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 15 of 21

1. Plaintiffs do not allege that the City acted with an intent to discriminate against
them, and their equal protection claim therefore fails.

1
2

“[T]he purpose of the equal protection clause of the Fourteenth Amendment is to secure every

3
person within the State's jurisdiction against intentional and arbitrary discrimination, whether
4
occasioned by express terms of a statute or by its improper execution through duly constituted
5
agents.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1074–75, 145 L. Ed. 2d
6
1060 (2000) (citations and quotations omitted). To state an equal protection violation under the
7
Fourteenth Amendment, a plaintiff must usually allege a government acted with an intent or purpose
8
to discriminate against the plaintiff based on membership in a protected class. Lee v. City of Los
9

Angeles, 250 F.3d 668, 686 (9th Cir. 2001). “‘Discriminatory purpose’ ... implies more than intent as

10
volition or intent as awareness of consequences. It implies that the decisionmaker ... selected or
11
12
13
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16

reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse
effects upon an identifiable group.” Id. at 687 (citation and quotation omitted). An equal protection
claim will not lie by “conflating all persons not injured into a preferred class receiving better
treatment” than the plaintiff. Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005)
(citing Joyce v. Mavromatis, 783 F.2d 56, 57 (6th Cir. 1986)). Similarly, “evidence of different
treatment of unlike groups does not support an equal protection claim.” Id. at 1168. Here, the Plaintiffs

17
complaint alleges no facts sufficient to support the notion that the City responded to the CHOP with
18
an intent to discriminate against Plaintiffs. The businesses say they supported the protesters message,
19
as the City did. Complaint at ¶1. No facts in the complaint support the notion that the City acted as it
20

did because of some animus towards plaintiffs.6

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23

6

If Plaintiffs are intending to advance a claim based on viewpoint discrimination, they clearly cannot do so when,
according to the facts alleged in the Complaint, all of the parties involved (the city, the peaceful protesters, and the
plaintiffs) share a similar viewpoint about the relevant matter of public concern. Plaintiffs do not say they the City
retaliated against them because of their speech, but that “CHOP participants regularly threatened, bullied, and assaulted

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 15
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 16 of 21

1

Although unclear from the Amended Complaint, it is possible plaintiffs make a novel “class

2

of one” argument as to each purported class member. See Engquist v. Oregon Department of

3

Agriculture, 553 U.S. 591, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). Such claims require

4

discriminatory intent and cannot be supported by an alleged failure to take a discretionary act alone.

5

See Engquist, 553 U.S. at 601-09, 128 S.Ct. at 2152-2157; Hanes v. Zurick, 578 F.3d 491, 496 (7th

6

Cir. 2009) (An “officer motivated by malice alone is not exercising discretion and is not weighing the

7

factors relevant to the officer's duties to the public.”); Le Fay v. Le Fay, 1:13-CV-1362 AWI MJS,

8

2015 WL 106262, at *7 (E.D. Cal. Jan. 7, 2015), aff'd sub nom. LeFay v. LeFay, 673 Fed. Appx. 722

9

(9th Cir. 2016) (malice required to support class of one theory in case involving class of one equal

10

protection theory based on discretionary law enforcement decision). Critically, plaintiffs do not allege

11

that the City was motived by malice and therefore took discriminatory action against them. Rather,

12

they allege that the City failed to stop private actors from conduct which the plaintiffs (often

13

understandably) disliked. Plaintiffs’ complaint fails to allege the basic factual elements required to

14

support an equal protection claim. The court’s analysis need go no further than this to determine that

15

their equal protection claim fails.

18

2. To the extent the Plaintiffs make a First Amendment claim under the Equal
Protection clause, it fails because they do not allege (1) the City took retaliatory
action against them because of their speech (2) that would have chilled a person of
ordinary firmness from participating in First Amendment speech or (3) that they
were injured by government retaliation.

19

Government action that suppresses protected speech in a discriminatory manner may violate

20

both the First Amendment and the Equal Protection Clause. R.A.V. v. City of St. Paul, 505 U.S. 377,

21

384 n. 4, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (noting that the Supreme Court “has occasionally

16
17

22
23

individuals whom they suspected might hold viewpoints contrary to their own[.]” Complaint at ¶224 (emphasis added).
This is not enough to establish governmental retaliation based on an expressed viewpoint.

DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 16
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 17 of 21

1

fused the First Amendment into the Equal Protection Clause in this fashion, but ... with the

2

acknowledgment ... that the First Amendment underlies its analysis.”). Where plaintiffs allege

3

violations of the Equal Protection Clause relating to expressive conduct, courts analyze those

4

arguments using the framework applicable to alleged content or viewpoint discrimination under the

5

First Amendment. Dariano v. Morgan Hill Unified Sch. Dist., 767 F.3d 764, 779–80 (9th Cir. 2014).

6

To demonstrate a First Amendment violation, a plaintiff must (1) provide evidence of

7

retaliatory governmental action motivated by an intention to interfere with First Amendment rights;

8

(2) that defendant’s conduct “would chill or silence a person of ordinary firmness from future First

9

Amendment activity,” Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999)

10

(citation omitted) and (3) that but for the government’s retaliatory acts an injury to the plaintiff would

11

not have occurred. Lacey v. Maricopa Cty., 693 F.3d 896, 917 (9th Cir. 2012). In the First Amendment

12

context, there is no right to a response or any particular action when a citizen petitions the government

13

for redress of a grievance, including filing a police report. See, e.g.. Mancini v. City of Cloverdale

14

Police Dep't, 15-CV-02804-JSC, 2015 WL 4512274, at *6 (N.D. Cal. July 24, 2015); Doe v. County

15

of San Mateo, 2009 WL 735149 at *6 (N.D. Cal. March 19, 2009).

16

Here, plaintiffs allege no facts that the City’s response to the CHOP was motivated by a desire

17

to suppress plaintiffs’ speech. They do not identify what speech plaintiffs engaged in or even desired

18

to engage in, when the City heard it, nor how the City retaliated against it. The allegedly retaliatory

19

acts they complain—threats of violence, for example—are not City actions, but that of private actors.

20

In short, plaintiffs’ complaint satisfies none of the elements of a First Amendment claim, and their

21

First Amendment claim under the Equal Protection clause is properly dismissed as a matter of law.

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23
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 17
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 18 of 21

1

G.

Class certification is unavailable because plaintiffs complain of distinct harms occurring
at different times and differing damages

2
FRCP 23(c)(1)(A) addresses the timing of a district court's class certification determination,
3
4

and states: “Time to Issue: At an early practicable time after a person sues or is sued as a class
representative, the court must determine by order whether to certify the action as a class action.”

5
FRCP 23(c)(1)(A). Preemptive motions by the defense to deny class certification are properly
6
considered by the trial court. Vinole v. Countrywide Home Loans, Inc., 571 F.3d 935, 940 (9th Cir.
7
2009). Whether to permit discovery prior to considering a motion to deny certification is within the
8
discretion of the trial court, and discovery is properly denied where plaintiffs do not make a prima
9
10

facie showing of Rule 23's prerequisites or that discovery measures were “likely to produce
persuasive information substantiating the class action allegations.” Doninger v. Pac. Nw. Bell,

11
Inc., 564 F.2d 1304, 1313 (9th Cir. 1977).
12
Class certification is not appropriate in civil rights cases involving varied incidents that
13
produced differing harms allegedly caused by third parties and governments. Plaintiffs in such cases
14
cannot satisfy Rule 23(a)(2)’s commonality requirement. In a recent, and directly comparable,
15
16

Northern District of California case, the court denied class certification in a case involving a “created
danger” theory where police officers were alleged to have directed plaintiffs into a dangerous crowd.

17
Hernandez v. City of San Jose, 16-CV-03957-LHK, 2019 WL 4450930, at *15 (N.D. Cal. Sept. 17,
18
19

2019). The court noted that causation “doomed” plaintiffs’ class certification motion. Id. Each alleged
incident would require a causation analysis, and because the incidents involved “third-party attackers”

20
there were unique proximate cause arguments as to each plaintiff: each would be required to show
21
that they would not have been injured by private parties but for the governmental action. Id. The same
22
analysis holds true here, and it warrants denial of class certification on this ground alone.
23
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 18
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 19 of 21

The Hernandez court also noted that damages issues in cases like this one pose an

1
2

insurmountable predominance problem under Rule 23(b)(3). Id. (citing and quoting Lambert v.

3

Nutraceutical Corp., 870 F.3d 1170, 1182 (9th Cir. 2017), rev'd and remanded on other grounds,

4

139 S. Ct. 710 (2019)(“[a] Rule 23(b)(3) plaintiff must show a class wide method for damages

5

calculations as a part of the assessment of whether common questions predominate over individual

6

questions.”)). Hernandez noted that each plaintiff was alleging different injuries that would not be

7

susceptible to calculation using a damages model, as required by Rule 23. In cases like Hernandez

8

and this one “[q]uestions of individual damage calculations will inevitably overwhelm questions

9

common to the class.” Comcast Corp. v. Behrend, 569 U.S. 27, 34, 133 S. Ct. 1426, 1433, 185 L.

10

Ed. 2d 515 (2013) (cited and quoted in Hernandez at *17).
As in Hernandez, for multiple reasons, there is no class here that can be properly certified.

11
12

The City therefore respectfully requests the Court deny class certification, in the event that the

13

City’s Rule 12 motion is not granted in full.
IV.

14

CONCLUSION

15

Plaintiffs complain of private action, not discriminatory governmental action. Their

16

allegations that the City knew of ongoing criminal and other activity and failed to stop it cannot

17

support their due process and equal protection claims. Similarly, their allegation that property access

18

was temporarily impaired (but never eliminated) by private parties cannot establish a viable takings

19

claim. Similarly, their purported class cannot satisfy basic Rule 23 requirements.

20

Pursuant to Rule 12, because Plaintiffs fail to state a claim upon which relief can be granted,

21

the City requests plaintiffs’ complaint be dismissed with prejudice. In the alternative, the City requests

22

//

23

//
DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 19
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 20 of 21

1
2

that class certification be denied.
DATED this 23rd day of July, 2020.
PETER S. HOLMES
Seattle City Attorney

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4
By:

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/s/ Joseph Groshong
Joseph Groshong, WSBA# 41593
Assistant City Attorney
E-mail: Joseph.Groshong@seattle.gov
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
Phone: (206) 684-8200

9

Attorneys for Defendant City of Seattle

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 20
2:20-CV-00983

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

 Case 2:20-cv-00983-TSZ Document 11 Filed 07/23/20 Page 21 of 21

1

CERTIFICATE OF SERVICE

2

I hereby certify that on July 23rd, 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:

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4
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7

Patty A. Eakes, WSBA #18888
Angelo J. Calfo, WSBA #27079
LAW OFFICES
CALFO EAKES, LLP
1301 Second Avenue, Suite 2800
Seattle, WA 98101
pattye@calfoeakes.com
angeloc@calfoeakes.com

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9

s/ Daviana Kadiyan
Daviana Kadiyan, Legal Assistant

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DEFENDANT’S MOTION TO DISMISS AND DENY CLASS
CERTIFICATION - 21
2:20-CV-00983

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