Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 1 of 9 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 [PROPOSED] ORDER GRANTING STIPULATED CLARIFICATION OF PRELIMINARY INJUNCTION Plaintiffs, 13 14 No. 2:20-cv-00887-RAJ v. CITY OF SEATTLE, Defendant. 16 17 18 The Parties, Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon 19 Sakamoto, Muraco Kyashna-Tocha, Alexander Woldeab, Nathalie Graham, and Alexandra Chen 20 (“Plaintiffs”) and Defendant, City of Seattle (“the City”) hereby stipulate to and propose the 21 following, subject to approval by the Court: 22 23 24 25 26 [PROPOSED] ORDER GRANTING STIPULATED CLARIFICATION OF PRELIMINARY INJUNCTION (No. 2:20-cv-00887-RAJ) – 1 d 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 2 of 9 1 2 FINDINGS 1. On June 12, 2020, the Court granted Plaintiffs’ motion for a temporary restraining 3 order enjoining the City from using chemical irritants and projectiles against peaceful protesters. 4 See ECF 34. 5 2. The temporary restraining order enjoined the City from “employing chemical 6 irritants or projectiles of any kind against persons peacefully engaging in protests or 7 demonstrations.” ECF 34 ¶ 1. It noted that individual officers could take “necessary, reasonable, 8 proportional, and targeted action to protect against a specific imminent threat of physical harm to 9 themselves or identifiable others or to respond to specific acts of violence or destruction of 10 property” but that chemical irritants and projectiles could not be “deployed indiscriminately into 11 a crowd” and, “to the extent reasonably possible, they should be targeted at the specific 12 imminent threat” justifying their deployment. Id. 13 3. On June 17, 2020, the parties stipulated to a preliminary injunction with terms 14 identical to the TRO extending the injunction through September 30, 2020. See ECF 42. The 15 Court entered the agreed preliminary injunction. 16 17 18 4. On June 26, 2020, the Seattle City Council passed Ordinance 119805 banning the crowd control irritants at issue in this suit (“the CCW Ordinance”). 5. In the evening of Friday, July 24, 2020, the Honorable James Robart granted an 19 emergency motion by the Department of Justice to temporarily enjoin implementation of 20 Ordinance 119805 until it could be reviewed under the terms of the consent decree entered in 21 United States v. City of Seattle, No. 12-cv-01282-JLR (W.D. Wash). In granting the DOJ’s 22 motion for a TRO, Judge Robart identified that this Court’s order “is the current status quo” with 23 respect to crowd control weapons “and remains in effect.” ECF 630, United States v. City of 24 Seattle, No. 12-cv-01282-JLR (W.D. Wash). 25 6. 26 following terms: The parties agree to AMEND the preliminary injunction (ECF 42) to include the [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 2 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 3 of 9 1 1. The City of Seattle, including the Seattle Police Department and any other officers, 2 departments, agencies, or organizations under the Seattle Police Department’s control 3 (collectively, “the City”), are enjoined from: 4 a. Using chemical irritants or projectiles of any kind to re-route a protest, unless such 5 re-routing is necessary to prevent specific imminent threat of physical harm to 6 themselves or identifiable others, or to respond to specific acts of violence or 7 destruction of property; 8 b. Using chemical irritants or projectiles of any kind without, when feasible, first 9 issuing a warning that is reasonably calculated to alert attendees in the area where 10 the weapons are to be deployed and allowing them reasonable time, space, and 11 opportunity under the circumstances to leave the area; 12 c. Targeting with chemical irritants or projectiles any individual displaying clear 13 indicia as a Journalist or Legal Observer, as defined in sections 2 and 3, below, 14 respectively, at such time(s) as the individual is acting lawfully and in a capacity 15 such that the City knows or reasonably should know of their status. However, 16 incidental exposure of these individuals which is related to allowable uses of these 17 tools is not enjoined. 2. To facilitate the City’s identification of Journalists protected under this 18 19 Order, the term “Journalist” shall be synonymous with “news media” defined as 20 follows: (a) Any newspaper, magazine or other periodical, book publisher, news 21 agency, wire service, radio or television station or network, cable or satellite station 22 or network, or audio or audiovisual production company, or any entity that is in the 23 regular business of news gathering and disseminating news or information to the 24 public by any means, including, but not limited to, print, broadcast, photographic, 25 mechanical, internet, or electronic distribution; (b) Any person who is or has been an 26 employee, agent, or independent contractor of any entity listed in (a) above, who is or [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 3 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 4 of 9 1 has been engaged in bona fide news gathering for such entity, and who obtained or 2 prepared the news or information that is sought while serving in that capacity; or (c) 3 Any parent, subsidiary, or affiliate of the entities listed in (a) or (b). The following 4 shall be considered indicia of being a Journalist: visual identification as a member of 5 the press, such as by displaying a professional or authorized press pass or wearing a 6 professional or authorized press badge or some distinctive clothing that identifies the 7 wearer as a member of the press. The City shall not be liable for unintentional 8 violations of this Order in the case of an individual who does not carry a press pass or 9 wear a press badge or distinctive clothing that identifies the wearer as a member of 10 the press. 11 3. To facilitate the City’s identification of Legal Observers protected under this Order, 12 the following shall be considered indicia of being a Legal Observer: wearing a green 13 National Lawyers’ Guild issued or authorized Legal Observer hat and/or vest (a green 14 NLG hat and/or black vest with green labels) or wearing a blue ACLU issued or 15 authorized Legal Observer vest. 16 4. At such time(s) as they are acting lawfully and in a capacity such that the City knows 17 or reasonably should know of their status, individuals with medical training who are 18 actively providing medical assistance will be classified as “Medics” and will 19 generally fall under the protections available under this Order to peaceful protesters. 20 The following shall be considered identifying garb of Medics under this Order: 21 wearing a blue or white vest or hat with the word “Medic” clearly displayed on the 22 vest or hat or wearing medical scrubs (typically blue). The City shall not be liable for 23 unintentional violations of this Order in the case of an individual who is not wearing 24 the identifying garb of Medics or not acting in the capacity of a Medic as described in 25 this Order. 26 [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 4 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 5 of 9 1 5. The City shall not be liable for violating this Court’s Preliminary Injunction (ECF 42) 2 or the provisions of this Order if blast balls are used for reasons consistent with this 3 Order or the Court’s Preliminary Injunction but directed to an open space near the 4 target individual(s) rather than at individuals. 5 6. The City shall ensure that a copy of this order is distributed via an ALL SPD e-mail 6 to every Seattle Police Department officer within 24 hours of the issuance of this 7 Order and certify to the Court that it has done so. 8 7. Declaring a protest to be an unlawful assembly or a riot does not exempt the City 9 from its obligation to comply with this Order, where individual officers may take 10 necessary, reasonable, proportional, and targeted action to protect against a specific 11 imminent threat of physical harm to themselves or identifiable others or to respond to 12 specific acts of violence or destruction of property. To the extent that chemical 13 irritants or projectiles are used in accordance with this paragraph, they shall not be 14 deployed indiscriminately into a crowd and to the extent reasonably possible, they 15 should be targeted at the specific imminent threat of physical harm to themselves or 16 identifiable others or to respond to specific acts of violence or destruction of property. 17 8. These provisions clarify the terms of this Court’s Preliminary Injunction (ECF 42) 18 and are hereby added to that Preliminary Injunction, the entirety of which remains 19 fully in effect. To the extent that there is any apparent conflict between this Order and 20 the Preliminary Injunction (ECF 42), the terms of this Order shall govern. 21 9. The parties further agree to stay all proceedings in this case, including case deadlines 22 and all discovery, pending the review by the court in United States v. City of Seattle 23 of the CCW Ordinance’s validity and effect. The stay in this case will expire when 24 Judge Robart issues an order with such ruling; within 24 hours of such order being 25 issued the parties will jointly advise this Court of it. The parties further agree that the 26 Preliminary Injunction, as amended by this Order, shall remain in effect for 90 days [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 5 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 6 of 9 1 after the stay in this case is lifted, unless otherwise vacated by the Court. Either party 2 may move to amend or vacate the preliminary injunction after the stay is lifted. 3 10. The Stay does not affect Plaintiffs’ ability to seek enforcement of the preliminary 4 5 injunction, as amended by this Order. 11. Plaintiffs’ Motion for Order to Show Cause is DISMISSED WITHOUT 6 PREJUDICE, and the evidentiary hearing scheduled for August 26, 2020, is vacated. 7 8 IT IS SO ORDERED by the Court, this ___ of ____________, 2020. 9 10 By: 11 HONORABLE RICHARD A. JONES United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 6 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 7 of 9 1 SUBMITTED BY: 2 DATED: August 9, 2020 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 3 4 5 6 7 8 9 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 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 25 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 26 By: s/ Robert S. Chang 21 22 23 24 [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 7 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 8 of 9 1 By: s/ Melissa Lee By: s/ Jessica Levin Robert S. Chang, #44083 Melissa Lee #38808 Jessica Levin #40837 2 3 4 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 5 6 7 8 Attorneys for Plaintiffs Black Lives Matter Seattle-King County, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-tochá, Alexander Woldeab, Nathalie Graham, and Alexandra Chen 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 8 149174223.1 Case 2:20-cv-00887-RAJ Document 109 Filed 08/10/20 Page 9 of 9 1 By: s/ Ghazal Sharifi By: s/ Carolyn Boies Ghazal Sharifi, #47750 Carolyn Boies, #40395 2 3 Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 Telephone: (206) 684-8200 Email: Ghazal.Sharifi@seattle.gov Carolyn.Boies@seattle.gov 4 5 6 7 Attorneys for Defendant City of Seattle 8 By: s/ Robert L. Christie By: s/ Thomas P. Miller By: s/ Ann E. Trivett By: s/ Megan M. Coluccio Robert L. Christie, #10895 Thomas P. Miller, #34473 Ann E. Trivett, #39228 Megan M. Coluccio, #44178 9 10 11 12 13 Christie Law Group, PLLC 2100 Westlake Avenue N., Suite 206 Seattle, WA 98109 Telephone: (206) 957-9669 Email: bob@christielawgroup.com tom@christielawgroup.com ann@christielawgroup.com megan@christielawgroup.com 14 15 16 17 Attorneys for Defendant City of Seattle 18 19 20 21 22 23 24 25 26 [PROPOSED] STIPULATED ORDER (No. 2:20-cv-00887-RAJ) – 9 149174223.1