Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 1 of 10 1 THE HONORABLE RICHARD A. JONES 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 10 11 12 BLACK LIVES MATTER SEATTLEKING COUNTY, ABIE EKENEZAR, SHARON SAKAMOTO, MURACO KYASHNA-TOCHA, ALEXANDER WOLDEAB, NATHALIE GRAHAM, AND ALEXANDRA CHEN, 15 REPLY ISO MOTION FOR ORDER TO SHOW CAUSE WHY CITY OF SEATTLE SHOULD NOT BE HELD IN CONTEMPT FOR VIOLATING THE PRELIMINARY INJUNCTION Plaintiffs, 13 14 No. 2:20-cv-887 RAJ NOTE ON MOTION CALENDAR: July 30, 2020 v. CITY OF SEATTLE, Defendant. 16 17 18 19 20 21 22 23 24 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 2 of 10 1 TABLE OF CONTENTS 2 Page 3 A.  The City’s Response ignores clear violations of the Injunction. .........................................1  4 B.  The City’s arguments demonstrate why it is necessary to clarify the Injunction. Doing so violates neither Due Process nor the Consent Decree. .........................................2  C.  Courts have found contempt for less egregious violations of court orders..........................4  D.  Conclusion ...........................................................................................................................5  5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – i 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 3 of 10 1 TABLE OF AUTHORITIES 2 3 4 5 6 7 8 9 10 11 Page(s) CASES Afro-Am. Patrolmen’s League v. City of Atlanta, 817 F.2d 719 (11th Cir. 1987) ...................................................................................................4 Casale v. Kelly, 710 F. Supp. 2d 347 (S.D.N.Y. 2010)........................................................................................4 Farber v. Rizzo, 363 F. Supp. 386 (E.D. Pa. 1973) ..............................................................................................4 Green v. United States, 356 U.S. 165 (1958) ...................................................................................................................3 Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821 (1994) ...................................................................................................................3 12 13 14 15 16 Jones v. Parmley, 465 F.3d 46 (2d Cir. 2006).........................................................................................................2 Kelly v. Wengler, 822 F.3d 1085 (9th Cir. 2016) ...............................................................................................3, 4 Lasar v. Ford Motor Co., 399 F.3d 1101 (9th Cir. 2005) ...................................................................................................3 17 18 19 20 21 N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886 (1982) ...................................................................................................................2 Reno Air Racing Ass’n v. McCord, 452 F.3d 1126 (9th Cir. 2006) ...................................................................................................4 State v. Moe, 174 Wash. 303 (1933) ................................................................................................................2 22 OTHER AUTHORITIES 23 24 First Amendment .............................................................................................................................2 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – ii 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 4 of 10 1 2 A. The City’s Response ignores clear violations of the Injunction. The City’s Response is both lacking and illuminating. It is lacking because the City 3 cherry-picks one declaration, but ignores every other witness who testified (under oath) about the 4 City’s indiscriminate violence. The City ignores Ms. Trimble, whose limited mobility prevented 5 her from running away fast enough (from her own police force), so she and other “stragglers” 6 were targeted with blast balls. The City ignores Mr. Wieser, a journalist, who posed no threat, 7 told the officers he would move back, but was shot in the face with pepper spray for no reason. 8 The City ignores Mr. Smith, another journalist, who captured multiple videos of officers 9 attacking peaceful protesters, such as repeatedly spraying young women trying to shelter behind 10 an umbrella. The City ignores video footage of an SPD officer nonchalantly tossing a blast ball 11 at Renee Raketty, another journalist, sitting alone on a fire escape taking pictures behind the 12 police line with her press credentials clearly visible. Ms. Bruce was shot with a blast ball when 13 she was protesting with her parents; Ms. Bonifilia was ten rows back when SPD shot her with a 14 projectile, leaving her with second-degree burns. Ms. Forest was with the Wall of Moms when 15 SPD decided to pepper spray all of them. Another Mom recounts, “All I did was wear a yellow 16 shirt and yell. I was not violent. I was not a threat.” Tewson Decl. at ¶ 15. Moms wearing 17 yellow, standing with arms linked, were pepper sprayed across their faces. Id. at ¶ 11. Witness 18 after witness testified to the indiscriminate use of blast balls, pepper balls, and other projectiles— 19 all in violation of the Court’s order. 20 The City’s response is illuminating because it reveals why the clarifications to the 21 injunction that Plaintiffs request are so necessary. The Brooks declaration is terrifying in its 22 Orwellian view that anyone carrying an umbrella or wearing “protective clothing” can be 23 targeted. Brooks, Decl. ¶¶ 6, 8. According to the City, if a protester tries to shield herself from 24 pepper spray, then that protester is inviting the use of pepper spray. If the City’s conduct goes 25 unchecked, then it’s open season on protesters who take precaution at all to minimize the risk 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 1 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 5 of 10 1 that they are maimed or killed by the weapons SPD insists on deploying against the thousands of 2 people standing up for Black lives. 3 Similarly, the City claims that because criminal actors sometimes operate from deep 4 within a crowd, see Brooks Decl., ¶¶ 8-9, officers may indiscriminately launch weapons at 5 crowds. The logical implication of Brooks’s declaration is that SPD would be able to deploy less 6 lethal weapons on protesters at every event, meaning this Court’s Order is utterly toothless. 7 Protesters don’t lose their First Amendment protection just because there have been some 8 associated incidents of violence. N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886, 908 9 (1982) (“The right to associate does not lose all constitutional protection merely because some 10 members of the group may have participated in conduct or advocated doctrine that itself is not 11 protected.”); see also Jones v. Parmley, 465 F.3d 46, 60 (2d Cir. 2006) (“[P]laintiffs had an 12 undeniable right to continue their peaceable protest activities, even when some in the 13 demonstration might have transgressed the law.”); cf. State v. Moe, 174 Wash. 303, 306 (1933) 14 (vacating riot conviction of person not participating as a rioter). Let’s state the obvious: 15 declaring a riot didn’t transform those umbrella-wielding mothers into rioters. 16 17 18 The City has clearly violated this Court’s order, in significant part because of its unreasonably distorted interpretation of the plain language of the order. B. 19 The City’s arguments demonstrate why it is necessary to clarify the Injunction. Doing so violates neither Due Process nor the Consent Decree. 20 The City apparently believes that everything it did on Saturday—nonchalantly throwing 21 blast balls into crowds and pepper spraying journalists, medics, and protesters simply to move 22 people, not to respond to specific threats—was consistent with the Court’s injunction. These 23 were not isolated instances that can be overlooked to arrive at a “substantial compliance” 24 conclusion, as the City urges. Instead the evidence shows they were widespread practices, that 25 arose from a deeply flawed interpretation of what the Injunction permits. This comes through 26 clearly in the Brooks declaration, as he describes moving police lines back and forth on Capitol REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 2 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 6 of 10 1 Hill in terms reminiscent of “battles lines.” The City’s interpretation demonstrates why 2 clarifications are necessary. Absent immediate clarification from this Court, such violations are 3 virtually certain to occur again, to the grave injury of Plaintiffs and other peaceful protesters. 4 The City insists that clarifying the order or finding contempt would somehow violate its 5 due process rights. But the City’s cases involve criminal contempt, not civil contempt. See Int’l 6 Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 833-34 (1994); Green v. United 7 States, 356 U.S. 165, 217 n.33 (1958); Lasar v. Ford Motor Co., 399 F.3d 1101, 1110 (9th Cir. 8 2005) (contempt may either by civil or criminal, defined by the character and purpose of the 9 associated sanction). Having made this false conflation, the City argues (erroneously and 10 inconsistently) that Plaintiffs must show proof beyond a reasonable doubt (a criminal standard) 11 while also acknowledging that “clear and convincing evidence” (a civil standard) is the right 12 threshold. In this case, the extensive evidence submitted by Plaintiffs’ easily satisfies the clear 13 and convincing standard. Indeed, the vast majority of that evidence is completely unrebutted. 14 “Courts have long had the inherent power to modify court orders in changed 15 circumstances,” which includes when there has been a “substantial violation of a court order.” 16 Kelly v. Wengler, 822 F.3d 1085, 1098 (9th Cir. 2016) (collecting cases). A modification “is 17 ‘suitably tailored to the changed circumstances’ when it ‘would return both parties as nearly as 18 possible to where they would have been absent’ the changed circumstances.” Id. Here, a 19 clarification that a ban on the indiscriminate use of less lethal weapons against peaceful 20 protesters includes a ban on targeting medics, journalists, and legal observers, does not change 21 the terms of the preliminary injunction. It merely returns Plaintiffs to the position before SPD 22 violated the Court’s order. Such a modification is “therefore well within the court’s inherent 23 power.” Id. 24 The City erroneously suggests that granting this motion would somehow create a conflict 25 with Judge Robart’s ruling in the Consent Decree case. This a red herring. Judge Robart praised 26 the preliminary injunction in this case from the bench, and again in his order, and recognized that REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 3 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 7 of 10 1 the injunction was consistent with the Consent Decree. Ensuring that journalists, medics, legal 2 observers, and peaceful protesters aren’t targeted with indiscriminate violence is entirely 3 consistent with the Consent Decree as interpreted by Judge Robart. 4 5 C. Courts have found contempt for less egregious violations of court orders. Courts have found civil contempt under facts far less egregious than those present here 6 and have not hesitated to hold defendants in contempt when law enforcement officials violate a 7 court order. E.g., Kelly v. Wengler, 822 F.3d 1085, 1096-98 (9th Cir. 2016) (affirming order 8 holding prison in contempt for failing to take reasonable steps to fully staff security posts as 9 required settlement agreement and modifying settlement agreement to extend court’s jurisdiction 10 as sanction); Afro-Am. Patrolmen’s League v. City of Atlanta, 817 F.2d 719, 721 (11th Cir. 1987) 11 (affirming contempt finding against City for violating consent decree regarding discrimination in 12 police force); Casale v. Kelly, 710 F. Supp. 2d 347, 360 (S.D.N.Y. 2010) (holding City in civil 13 contempt because NYPD had not made “reasonably diligent and energetic efforts” to prevent 14 enforcement of unconstitutional loitering ordinance); Farber v. Rizzo, 363 F. Supp. 386, 395 15 (E.D. Pa. 1973) (holding Philadelphia Police Department in civil contempt for violating TRO to 16 protect the right to protest, rejecting defense that they received erroneous advice from counsel 17 about what the TRO prohibited). 18 The City asserts that “lay opinions” cannot form the basis for contempt. This is a strange 19 and utterly wrong argument. Describing how a police officer pepper sprayed a line of peaceful 20 mothers inflicted second-degree burns, or “pepper sprayed me in the face” for not walking fast 21 enough aren’t lay opinions, they are first-hand factual accounts, made under oath. The same is 22 true of the sworn testimony of journalists describing officers nonchalantly throwing grenades at 23 peaceful protesters and shooting indiscriminately into the crowd. And they are unrebutted 24 accounts. 25 The City’s correct, however, that “the contempt need not be willful” in order to be 26 sanctionable Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). Plaintiffs REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 4 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 8 of 10 1 only need to show, and have, that the City failed, through the objective conduct of its officers, to 2 take “all reasonable steps” to implement the plain meaning of the current preliminary injunction: 3 to refrain from deploying less lethal weapons indiscriminately, against peaceful protesters, and to 4 use them only if the deployment is a “necessary, reasonable, proportional, and targeted action to 5 protect against a specific imminent threat of physical harm to themselves or identifiable others or 6 to respond to specific acts of violence or destruction of property.” Dkt. 42, at 2. 7 D. Conclusion 8 The City’s violence was neither targeted nor proportional. Rather than focus on 9 identifying a specific and imminent threat justifying each of SPD’s many, many deployments of 10 potentially lethal weapons, the City’s own declarants seem to argue that SPD regarded everyone 11 who did not follow their direction quickly enough (even when no directions were given, or, if 12 given, could not be heard or quickly complied with) as a threat, including mothers wielding 13 umbrellas, journalists holding cameras, and legal observers documenting the scene. Having 14 made that determination, SPD allowed its officers to shoot indiscriminately into a crowd that the 15 City estimates contained 5,000 to 7,000 people, in most cases simply to move the crowd—that is 16 the antithesis of this Court’s order. 17 Taken together, the Court should clarify its order to ensure these actions don’t happen 18 again. In addition, Plaintiffs seek a modest sanction (attorneys’ fees for bringing this motion), a 19 request that is reasonable under these circumstances given the burdens on Plaintiffs to spring into 20 action in response to these violations. 21 22 23 24 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 5 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 9 of 10 1 2 DATED: July 30, 2020 3 4 5 6 7 8 By: s/ David A. Perez By: s/ Joseph M. McMillan By: s/ Carolyn S. Gilbert By: s/ Nitika Arora By: s/ Heath Hyatt By: s/ Paige L. Whidbee David A. Perez #43959 Joseph M. McMillan #26527 Carolyn S. Gilbert #51285 Nitika Arora #54084 Heath Hyatt, #54141 Paige L. Whidbee, # 55072 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Telephone: 206.359.8000 Facsimile: 206.359.9000 Email: DPerez@perkinscoie.com JMcMillan@perkinscoie.com CarolynGilbert@perkinscoie.com NArora@perkinscoie.com HHyatt@perkinscoie.com PWhidbee@perkinscoie.com 9 10 11 12 13 14 15 By: s/ Molly Tack-Hooper By: s/ Nancy L. Talner By: s/ Lisa Nowlin By: s/ Breanne Schuster By: s/ John Midgley Molly Tack-Hooper, #56356 Nancy L. Talner #11196 Lisa Nowlin #51512 Breanne Schuster #49993 John Midgley, #6511 16 17 18 19 20 21 American Civil Liberties Union of Washington Foundation P.O. Box 2728 Seattle, WA 98111 Telephone: (206) 624-2184 Email: mtackhooper@aclu-wa.org talner@aclu-wa.org lnowlin@aclu-wa.org bschuster@aclu-wa.org jmidgley@aclu-wa.org 22 23 24 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 6 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000 Case 2:20-cv-00887-RAJ Document 87 Filed 07/30/20 Page 10 of 10 1 By: s/ Robert S. Chang By: s/ Melissa Lee By: s/ Jessica Levin Robert S. Chang, #44083 Melissa Lee #38808 Jessica Levin #40837 2 3 4 5 Fred T. Korematsu Center for Law and Equality Ronald A. Peterson Law Clinic Seattle University School of Law 1112 E. Columbia Street Seattle, WA 98122 Telephone: 206.398.4025 Fax: 206.398.4077 Email: changro@seattleu.edu 6 7 8 9 10 Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 REPLY MOTION FOR CONTEMPT (No 2:20-cv-887 RAJ) – 7 149031763.3 Perkins Coie LLP 1201 Third Avenue, Suite 4900 Seattle, WA 98101-3099 Phone: 206.359.8000 Fax: 206.359.9000