FILED
SUPREME COURT
STATE OF WASHINGTON
NO. 98897-8
911412020 4:08 PM
BY SUSAN L. CARLSON
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
CLERK

IN RE THE MATTER OF RECALL CHARGES AGAINST
CITY OF SEATTLE
MAYOR JENNY DURKAN
Appellant.

ON APPEAL FROM THE SUPERIOR COURT OF THE
STATE OF WASHINGTON FOR KING COUNTY
The Honorable Mary E. Roberts

RESPONSE BRIEF AND
OPENING BRIEF OF CROSS-APPELLANT

PETITIONER ELLIOTT GRACE HARVEY

 TABLE OF CONTENTS
I.

INTRODUCTION………………….……………………………1

II.

ASSIGNMENTS OF ERROR & ISSUES PRESENTED……..2

III.

STATEMENT OF THE CASE…………………...……..………4
A. Procedural Facts…………………….…………………………...4
B. Substantive Facts………………………………………………...4

IV.

1.

General Facts………….…………………………………..4

2.

Information specific to chemical weapons — tear gas and
pepper spray……………………………………...………11

3.

Additional information about bystanders in the surrounding
Capitol Hill neighborhood………………………….……13

4.

Attacks on the press and medics and failure to
de-escalate…………………………………………….....16

LEGAL ARGUMENT
A.

The Mayor’s Statement of Facts is misleading and at
any rate, may be largely disregarded in this case…….17

B.

Petitioners briefly review the overall standards for
recall cases in this section……………………………...18

C.

The Superior Court correctly found Charge B to be
both factually and legally sufficient…………………...19
1.

The facts as presented in Charge B would not be confusing
to either the Mayor or to Seattle voters, and these
allegations are factually well-supported………………....19

2.

The failure to act to prevent violence, in spite of her duty
to enforce the laws and keep the peace — after weeks, and
then months — constitutes at minimum misfeasance and
violation of the Mayor’s oath of office and thereby is
legally sufficient to go to the voters……………………...29

3.

“Intent” is not required if a violation of the law is not
alleged, but insofar as this Court believes Mayor Durkan
1

 committed misfeasance, her intent can be inferred from the
facts……………………………………………………....36
4.

V.

If there is such a thing as “abuse of discretion,” this must
necessarily be it…………………………………………..37

D.

The Superior Court erred when it struck Charge E or,
in the alternative, when it did not expand Charge B to
recognize the peril the actions of the SPD caused for
bystanders, for example residents in the neighborhoods
where chemical weapons were deployed…....…………39

E.

The Superior Court erred when it failed to sustain
Charge C, because it was well-supported that SPD: 1)
attacked and harassed both press and volunteer medics
onscene; 2) failed to provide care to protesters SPD
injured; and 3) failed to use de-escalation techniques,
and Mayor Durkan had notice of these illegal acts, as
she did of the inappropriate use of chemical
weapons……………………………………………..…...40
1.

SPD attacked, harassed, and arrested members of the press,
in clear violation of SMC 12.A.12.020, and this became
well known.……………………………………………....41

2.

The Seattle Police Department disregarded SCM
14.090-POL-10(b) regulations regarding the provision of
medical care in a crowd management setting, and violated
international norms of conduct when they targeted
volunteer medics, blocked medical care, and destroyed aid
stations and medical supplies………………………….....45

3.

The Seattle Police Department disregarded SPM
8.100-POL-1 regulations regarding the use of de-escalation
techniques………………………………………………..49

CONCLUSION…………………………………………..…….50

2

 TABLE OF AUTHORITIES
Constitutional Provisions
United States Constitution, Amend. 1……………………………..…….33
United States Constitution, Amend. 4……………………………..…….33
United States Constitution, Amend. 14……………………..……..…….33
Washington Constitution, art. 1, §§ 3-5…………………..………..…….33
Washington Constitution, art. 1, § 7…………………………...…..…….33
Washington Constitution, art. I, § 33………………………..……..…….18
Washington Constitution, art. I, § 34…………………………..…..…….18
Cases
Chandler v. Otto, 103 Wn.2d 268, 693 P.2d 71 (1984)...........18, 19, 30, 37
Erection Co. v. Dept. of Labor & Indus., 121 Wn.2d 513, 852 P.2d 288
(1993)………………………..…………………….………………....30-31
Greco v. Parsons, 105 Wn.2d 669, 717 P.2d 1368 (1986).……...…...….30
In re Recall Charges Against Davis, 164 Wn.2d 361, 193 P.3d 98
(2008)………………………………………………………..…….…36-37
In re Recall of Boldt, 187 Wn.2d 542, 386 P.3d 1104 (2017)……..…18-19
In re Recall of Bolt, 177 Wn.2d 168, 298 P.3d 710 (2013)………..…….24
In re Recall of Kast, 144 Wn.2d 807, 31 P.3d 677 (2001).….…...17, 30, 34
In re Recall of Kelley, 185 Wn.2d 158, 369 P.3d 494 (2019)….…….20-21
In re Recall of Morrisette, 110 Wn.2d 933, 756 P.2d 1318 (1988)......40-41

3

 In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 10 P.3d 1034
(2000)………………………………………………….…….…30, 36, 37
In re Recall of Pepper, 189 Wn.2d 546, 403 P.3d 839 (2017)….………35
In re Recall of Reed, 156 Wn.2d 53, 124 P.3d 279 (2005)…….…….....40
In re Recall of Riddle, 189 Wn.2d 565, 403 P.3d 849 (2017)......18, 19-20
In re Recall of Sandhaus, 134 Wn.2d 662, 953 P.2d 82 (1998)……..….37
In re Recall of Shipman, 125 Wn.2d 683, 886 P.2d 1127 (1995)….…...38
In re Recall of Wade, 115 Wn.2d 544, 799 P.2d 1179 (1990)....…...19, 36
In re Recall of Wasson, 149 Wn.2d 787, 72 P.3d 170 (2003)…......…...19
In re Recall of West, 155 Wn.2d 659, 121 P.3d 1190 (2005)….18, 30, 36
Pederson v. Moser, 99 Wn.2d 456, 662 P.2d 866 (1983).………….….30
State v. Johnson, 119 Wn.2d 167, 829 P.2d 1082 (1992).………....…..33
Statutes
RCW 29A.56.110-.270…………………………………………..…....18
RCW 29A.56.110………………………………….……..……….19, 30
RCW 29A.56.140………………………………………...…………...17
SMC 12A.12.020………………………………………….....………..41
Other Authorities
Seattle Council ordinance 126102, passed June 15, 2020………..…...24
Seattle City Charter, Art. V, §2.…………………..…….....…..21, 30, 34
Seattle City Charter, Art. VI, §2.…………………………....….…21, 34
Seattle City Charter, Art. VI, §4……………………………...……….22
Seattle Police Manual (SPM) 14.090-POL-10(b)………….……..…...45
4

 Seattle Police Manual (SPM) 8.100-POL-1…………………..….48-49

5

 I.

INTRODUCTION

This case presents a compelling question. Though military and
quasi-military forces in the United States are putatively overseen by
civilians, Mayor Durkan’s argument suggests a world where ordinary
citizens have no legal recourse when the police forces of a city become
violent and dangerously out of control. No way to make the violence stop,
no way to protect themselves, their families or friends, or even their
homes, from people armed by our government, other than by resorting to
force themselves.
We hope this Court finds another path, a more reasonable one.
Though Washington restricts recall to cases where there is “cause,” it is
also one of the states that enshrines the right of recall as a constitutional
right.
Surely this constitutional right of the citizenry, meant specifically
to protect them against either failures by elected officials to do their jobs
and/or lawlessness in the supposed execution of those roles, must be
applied in cases where an official simply refuses to act. Where, under the
facts alleged, the lawlessness and outright violence — as well as the
mayor’s failure to protect Seattle citizens from it — are manifest. The
voters of Seattle will understand immediately what the issue before them
would be in this case. By the end of this briefing, if not before, this Court
will, too.

1

 The Seattle Police Department (“SPD”) has been wildly out of
control for months, since the first day of teargas deployment, when a
nine-year-old child was pepper-sprayed in the face, continuing all the way
up through the present day. The facts herein are appalling.
Protesters are gassed in the street. Citizens are gassed in their
homes. Reporters and medics are attacked or arrested, when law and
public policy demands they be immune. Many individuals and broader
entities – including the City Council, neighborhood groups, and even
members of her own staff – have implored the Mayor to act. And indeed,
in these circumstances, she is the sole elected official who has the capacity
to take effective action to stop these assaults by the SPD, the sole elected
official who has the power to protect her electorate.
Despite having a duty to enforce the laws and keep the peace under
the Seattle City Charter, the Mayor has neglected her duty and chosen not
to do so. This recall petition must therefore proceed.
II.

ASSIGNMENTS OF ERROR & ISSUES PRESENTED

1. Charge E was not duplicative of Charge B, because residents who
were affected by chemical weapons in their homes should be afforded
protection from this violence the same as protesters in the streets.
2. Charge C should have been sustained, as the attacks on the press and
medics and the failure by SPD to deescalate the conflicts were highly
publicized and continued over weeks, the Superior Court erred in
finding such activities were ones taken “without the Mayor’s
2

 knowledge, not at her direction.” Instead, the Mayor had a more than
sufficient level of information about these assaults of protected
peoples as she did the chemical weapon attacks.
Issues Presented:
Should people who are recklessly exposed to chemical weapons in
their own homes by police releasing them in massive quantities on
residential streets be as protected and as important to recognize as victims
of such unlawful conduct, as those who are protesting in the same streets?
(Assignment of Error #1)
When attacks on the medics and press plainly violate both regulations
and worldwide ethical norms, when such attacks began by June 1 and
have continued through the present day, and when such attacks have been
discussed extensively in social media and also in the regular media, can
the mayor be assumed to be ignorant of such attacks? (Assignment of
Error #2)
When a police department has specific instructions in its manual
requiring de-escalation to be tried by police, but officers have ignored
such instruction and instead attacked peaceful protesters repeatedly, can
the person responsible for the leadership of that department decide not to
respond to those violations over weeks, and then months? (Assignment of
Error #2)
Can a city’s elected executive avoid the possibility of a recall vote
by simply ignoring her citizens who beg for her action to protect them,
3

 while the police department that answers to the executive oppresses the
people of the city with violent, lawless, and outrageous behavior? (Issue
from State’s Assignments of Error, Appellant Opening Brief (“AOB”) at 2)
I.

STATEMENT OF THE CASE

A. Procedural Facts.
This petition for recall was filed with King County Elections on June
15, 2020. CP 7-28. The King County Prosecutor’s Office drafted a ballot
synopsis and filed it on June 26, and the recall was set for a hearing in
King County Superior Court on July 2. CP 1-4, 93.
The Honorable Mary E. Roberts ruled on the petition on July 10,
2020, dismissing five of the counts as insufficiently supported and one
(Charge E) as duplicative. CP 300-02. She sustained one charge, Charge
B, and limited its scope slightly. CP 300-01, 302.
The Mayor moved for reconsideration. CP 306-23. The Superior
Court denied reconsideration on July 29, 2020, and the Mayor appealed on
August 12, 2020. CP 790-96.
B. Substantive Facts.
1.

General Facts. Prior to late May, the city of Seattle - like

the rest of the country - was concerned and consumed by COVID-19. On
March 3, 2020, Mayor Durkan issued a Mayoral Proclamation of Civil
Emergency in response to the rapid increase in COVID-19 cases in
Seattle. CP 45-48.1 In May, claiming a need to focus on coronavirus,

1

Mayoral Proclamation of Civil Emergency, City of Seattle, (May 3, 2020).

4

 Mayor Durkan asked the U.S. district attorney to free the city of Seattle’s
police department from federal oversight imposed in the 2012 consent
decree with the Department of Justice.2
On May 25, 2020, George Floyd was murdered by Officer Derek
Chauvin in Minneapolis. Demonstrations in Seattle against police
brutality and systemic racism began on May 29. On the first day of
Seattle protests, there were 7,949 confirmed cases of COVID-19 in King
County3 and Mayor Durkan’s COVID-19 emergency order was still in
effect. CP 49-52 (extension of order).
The following day, May 30, tensions reached a fever pitch when
the Seattle Police Department (“SPD”) began deploying crowd control
weapons, including flash bang grenades, gas grenades, and pepper spray,
on largely peaceful protesters in the downtown core of Seattle, including a
well-publicized incident involving a 9 year-old child being pepper sprayed
in the face.4 Protesters described seeing multiple city street intersections
filled by gas by SPD. CP 56-57.

2

In move to limit federal oversight of police, Seattle cites its hard work, need to focus on
coronavirus, Seattle Times, May 25, 2020,
seattletimes.com/seattle-news/in-move-to-limit-federal-oversight-of-police-seattle-cites-it
s-hard-work-need-to-focus-on-the-coronavirus/; The United States Department of
Justice, Investigation of the Seattle Police Department, Aug 6, 2015,
justice.gov/crt/investigation-documents. See also Seattle Police Department, Settlement
Agreement History,
seattle.gov/police/about-us/professional-standards-bureau/settlement-agreement-history.
3
Coronavirus daily news updates, May 29: What to know today about COVID-19 in the
Seattle area, Washington state, and the world, Seattle Times, May 29, 2020,
seattletimes.com/seattle-news/health/coronavirus-daily-news-updates-may-29-what-to-kn
ow-today-about-covid-19-in-the-seattle-area-washington-state-and-the-world/.
4
https://www.kuow.org/stories/a-child-pepper-sprayed-a-womans-eye-nearly-lost-denoun
ce-seattle-police-tactics;

5

 But when protesters denounced police violence, they were met
with police violence:
[May 30, 2020] At 4:49 PM, many additional explosive devices
were thrown into a crowd of nonviolent demonstrators who were
chanting "arms up, don't shoot" in unison with arms raised. I did
not witness any verbal demands of dispersal on behalf of the
Seattle Police Department, nor did I witness any actions against the
police to warrant any such response. CP 56 (Doe declaration).
I was the recipient of pepper spray myself and experienced burning
in my eyes, nose and throat which made it very difficult for me to
run in the opposite direction, which seemed to be the instruction.
We never got answers as to why we weren’t allowed to march. I
found out by a police officer yelling in my face at 5:05 that there
was a curfew just handed down by the mayor for 5pm. CP 58
(Solomon declaration).
Notably, when the SPD requested permission on May 31, 2020, to
use CS gas and 40 mm launchers, the reason given was not that a situation
had developed causing the use of CS gas to be appropriate and necessary,
but because other supplies had run out:
Consistent with department policies that govern the use of force
during crowd management events, SPD officers attempted to
disperse the crowd using less-lethal munitions on hand, including
blast balls and OC spray. As a result of the magnitude of last
night’s event, both Patrol and SWAT are both now largely depleted
of these less-lethal munitions.
(Emphasis added.) CP 69 (Memo from SPD requesting to use CS and
40mm launchers).
On June 1, 2020, a group of protesters informed the SPD at
5:40pm they might march towards the SPD’s East Precinct. CP 66 (SPD
Blotter of timelines of police responses). By the time the marchers arrived
at the precinct at 7:11pm that day, SPD had created a police line across the
6

 projected path of the marchers, blocking access for demonstrators to
continue their march past the precinct. CP 67. At 9:10pm, the police line
deployed pepper spray, blast balls, and CS gas on a group of peaceful
protesters CP 68, 69.5
[V]ideos of the officers spraying the crowd and deploying flash
bangs quickly spread on social media Monday night; many of
those who shared them said the footage showed the police were
responsible for escalating the confrontation. A police officer at the
front of the crowd can be seen grabbing a protester’s umbrella just
before other officers deploy pepper spray into the crowd.6
Over the next several days, the SPD - under Mayor Durkan’s
oversight - continued to barricade their precinct and attack protesters
demonstrating against police violence. As the Mayor’s team admits in her
opening brief, police deployed tear gas,7 at minimum, on May 31, June 1,
June 2, June 6, and June 7.8 AOB at 4, 5, 6, 8, 9.
On June 5, 2020, Mayor Durkan addressed the use of tear gas: “In
conversations with the Chief, I know she agrees that SPD officers do not

5

See also, Seattle-area protests: Police declare a riot as demonstrators gather for fourth
day to call for police accountability, Seattle Times, Jun 1, 2020,
seattletimes.com/seattle-news/george-floyd-protests-continue-in-seattle-area-demonstrato
rs-expected-to-gather-for-fourth-day-to-call-for-racial-justice/.
6
Quote from Seattle police use blast balls, pepper spray to try to disperse Saturday
protesters, Seattle Times, Jun 6, 2020,
seattletimes.com/seattle-news/seattle-area-protests-demonstrators-prepare-for-ninth-day-o
f-action-after-george-floyds-killing/. See also video of initiation of attack on protesters at
https://www.youtube.com/watch?v=D5sQt_bQS4A (Converge Media video by Omari
Salisbury); https://www.youtube.com/watch?v=0NpXH7p-ELo.
7
The Mayor emphasises the use of tear gas here, to nearly the complete exclusion of
pepper spray/OC gas. But all the orders and recommendations in the record applied
equally to both kinds of gas. If you include OC, you’d add May 30 and June 6 to just this
list, not to mention many more dates after these.
8
The Mayor claims no further CS gas has been deployed since June 7, AOB at 7, but
protesters have been gassed repeatedly since that date. Possibly this has been with
pepper spray, which is less inherently physically damaging than tear gas. But pepper
spray presents almost the same danger profile with regard to the pandemic, as we’ll
describe further below.

7

 need to be using tear gas at protests as a crowd management tool[.]”9 Both
Mayor Durkan and Chief Best acknowledged the lack of de-escalation,
and “apologized for instances in which they said officers may have failed
to deescalate tense moments, used disproportionate force against
demonstrators and deployed less-than-lethal weapons too quickly.”10 The
Mayor and Chief announced a 30-day ban on tear gas, and Chief Best also
rescinded the May 31 authorization for CS canisters and 40 mm launchers
on June 5, although SPD claimed a different reason for the use of these
more dangerous weapons than the “depletion of supplies” cited on May
31st, stating instead:
[A] concern that should there be indication of events similarly
escalating in rapid and violent manner, SPD would not be
sufficiently equipped to prevent further large scale property
destruction such as that seen in the downtown core.
CP 71 (SPD Memo rescinding CS approval on June 5).
One day after the “30-day ban” of tear gas, police sprayed clouds
of OC gas on protesters outside the East Precinct. Only two days into the
supposed “30-day ban” of CS gas, the SPD deployed CS gas again against
protestors at the same location, shortly after having deployed OC gas.11
For reasons that remain unclear, the SPD abandoned the East
Precinct on June 8,12 and the “Capitol Hill Autonomous Zone” (the
9

How ambiguity and a loophole undermined Seattle’s ban on tear gas during George
Floyd demonstrations, Seattle Times, Jun 9, 2020,
seattletimes.com/seattle-news/how-ambiguity-and-a-loophole-undermined-seattles-ban-o
n-tear-gas-during-george-floyd-demonstrations/.
10
Man shot on Capitol Hill in Seattle after gunman drives car into George Floyd protest,
Seattle Times, Jun 7, 2020,
seattletimes.com/seattle-news/crime/man-shot-after-gunman-drives-car-into-capitol-hill-p
rotesters/.
11
See Note 10, above.

8

 “CHAZ”) was created by the protesters. Later renamed the “Capitol Hill
Occupied Protest” (the “CHOP”), many protesters occupied the area for
weeks.13
The CHOP was dismantled by Seattle Police on July 1 on Mayor
Durkan’s 2am order, a day before the Superior Court hearing on this
case.14 Protests about police brutality and systemic racism in Seattle have
persisted at least nightly until the present day, and violence still breaks out
regularly between SPD and Seattle citizens.
One of the worst days of police violence after the CHOP was
dismantled was Saturday, July 25, 2020. Black Lives Matter Seattle-King
County, the ACLU, law firm Perkins Coie, and the Korematsu Center had
already collaborated on a case brought in federal court in the Western

12

Shortly after the abandoning, Chief Best told SPD officers on a department-wide video
call that it was “not her decision” to give up the East Precinct, and that she was “angry”
about it. Michael Ruiz, Seattle police chief: 'Leaving the precinct was not my decision,
Fox News, June 11, 2020,
https://www.foxnews.com/us/seattle-police-chief-leaving-precinct On the other hand,
Mayor Durkan has stated that while she made the decision to remove the street barriers
around the precinct, but “she did not directly order officers to leave the precinct herself,
and that the decision was made by “SPD Frontline Commanders on site.’” Mayor
Durkan clarifies role in clearing of East Precinct, MyNorthwest.com, June 12, 2020,
https://mynorthwest.com/1941548/mayor-durkan-east-precinct-decision/? No one has
identified the person who gave the order -- or even if an order was given. David Kroman,
Confusion, anger in Seattle Police Dept. after East Precinct exit,
Crosscut, June 19, 2020,
https://crosscut.com/2020/06/confusion-anger-seattle-police-dept-after-east-precinct-exit
13
See e.g., Bridget Read, What’s Going on in CHOP, the Seattle Occupied Protest Zone?,
The Cut, updated July 1, 2020,
https://www.thecut.com/2020/07/whats-going-on-in-chaz-the-seattle-autonomous-zone.ht
ml (general history of CHOP), Becca Savransky, How CHAZ became CHOP: Seattle's
police-free zone explained, Seattle Post-Intelligencer, June 22, 2020,
https://www.seattlepi.com/seattlenews/article/What-is-CHOP-the-zone-in-Seattle-formed
-by-15341281.php (same).
14
Eddy Rodriguez, Seattle Police Dismantle CHOP Over 'Ongoing Violence' After Mayor
Declares Autonomous Zone Over, Newsweek, July 1, 2020,
https://www.newsweek.com/seattle-police-dismantle-chop-over-ongoing-violence-aftermayor-declares-autonomous-zone-over-1514680

9

 District of Washington, Black Lives Matter Seattle-King County, et al, v.
City of Seattle.15 That case had led to federal Judge Richard Jones issuing
a TRO restricting SPD from using “chemical irritants or projectiles of any
kind against persons peacefully engaging in protests or demonstrations.”
CP 82 (full order CP 72-83). The only time SPD would be allowed to use
such weapons would be if life safety was at risk, and even then, officers
had to:
...not deplo[y them] indiscriminately into a crowd and to
the extent reasonably possible, they should be targeted at
the specific imminent threat of physical harm to themselves
or identifiable others or to respond to specific acts of
violence or destruction of property.
CP 82. This TRO was extended by agreement of the parties until
September 30, 2020. CP 219-21.
On Tuesday, July 28, 2020, after the police riots of that Saturday,
the Perkins legal team for BLM, et. al, filed twenty-two declarations from
eyewitnesses to the police violence. CP 657-789. Over and over, these
declarants were unambiguous that police attacked without motivation,
provocation, or warning. CP 658, 662, 663, 665, 668, 669, 677-78,
683-84, 686, 693-94, 707, 710, 711, 722, 731, 736, 739-40, 752, 755, 760,
763, 772.

15

Elizabeth Turnbull, ACLU Washington files emergency lawsuit against SPD and City of
Seattle to stop use of chemical agents and projectiles, South Seattle Emerald, June 9,
2020,
https://southseattleemerald.com/2020/06/09/aclu-washington-files-emergency-lawsuit-ag
ainst-spd-and-city-of-seattle-to-stop-use-of-chemical-agents-and-projectiles/

10

 Many protesters reported being sprayed directly in the face with
pepper spray from inches away, even though they were attempting to
comply with police orders, or they described projectiles being fired,
seemingly at random, into packed crowds. CP 662, 665, 668, 678, 679,
684, 686, 707, 710, 711, 712, 716, 717, 718, 722, 723, 731, 736, 739.
Some of the protesters took pictures of their injuries, such as chemical
burns, deep bruising and swelling, and lacerations. CP 675, 690, 692, 697,
699, 701, 703, 705, 725, 727, 729, 734, 745, 747, 752, 766, 768, 770, 777,
779, 781, 785, 787, 789. Many also described symptoms of emotional
trauma, PTSD, and disillusionment that the police had brutalized them
when they were being peaceful. CP 660, 672-73, 679-80, 720, 757, 761.
A few declarants reported that police specifically targeted people
identified as press, CP 735-37, 750-53, and a nurse acting as a medic
explained how she was assaulted and threatened with assault while trying
to help patients. CP 223-247. Far from “life safety” justifying the police
use of “crowd control” weapons on that date, the police attacks led to mass
chaos, serious injuries, and terror.
2.

Information specific to chemical weapons — tear gas and

pepper spray. Tear gas — also called CS gas — has been often criticized
as dangerous and chaotic in terms of application. In their charging letter,
Petitioners quoted a 2018 article by Dr. Rohini Haar of Physicians for
Human Rights:
Tear gas, by nature, is indiscriminate, and affects everyone within
its reach – from those who may initiate a protest, to peaceful
11

 bystanders, to children caught up in the chaos, to law enforcement
officers themselves. Young children, or those with asthma or
respiratory disorders, and those who may not be able to run away
quickly, are particularly at risk of serious injury.
CP15.16 The dangers of tear gas, and its usually-less-lethal cousin, pepper
spray, are compounded when combined with a respiratory pandemic.
On June 5, 2020, in an open letter signed by nearly 1,300 doctors
and medical professionals, law enforcement was urged to enact a list of
guidelines for protecting the public from the virus. CP 54-55.17 The letter
makes the following recommendation regarding tear gas or “other
respiratory irritants”, such as pepper spray:
Oppose any use of tear gas, smoke, or other respiratory
irritants, which could increase risk for COVID-19 by
making the respiratory tract more susceptible to infection,
exacerbating existing inflammation, and inducing
coughing.
(Emphasis added.) CP 55. In addition to the deleterious effects of the
gasses themselves, medical experts warned: “those rushing to help people
sprayed by tear gas could come into close contact with someone already
infected with the virus who is coughing infectious particles [because of the
gas.]”18
Also on June 5, the three agencies that provide oversight for SPD Seattle’s Office of the Inspector General (“OIG”), Community Police
16

Citing Haar, Rohini J., MD MPH, The Very Real Health Impacts of Tear Gas,
Physicians for Human Rights, Dec 11, 2018,
phr.org/our-work/resources/the-very-real-health-impacts-of-tear-gas/.
17
Citing Bender Ignacio, Rachel, MD MPH, Open letter advocating for an anti-racist
public health response to demonstrations against systemic injustice occurring during the
COVID-19 pandemic, Jun 1, 2020 attached as Exhibit 9 to the charging letter.
18
Can Tear Gas and Pepper Spray Increase Virus Spread? New York Times, June 8,
2020,
nytimes.com/aponline/2020/06/08/health/ap-us-med-america-protests-tear-gas-virus.html.

12

 Commission (“CPC”), and Office of Police Accountability (“OPA”) issued a joint recommendation that SPD stop using tear gas and other
respiratory irritants, in part because:
The Seattle and King County Department of Public Health
and other public health officials around the country oppose
the use of tear gas and other respiratory irritants because of
its potential to increase spread and vulnerability to
COVID-19.
CP 470. The same report noted that the SPD had no training on tear gas
and that tear gas had not been approved by the federal court under the SPD
consent degree. CP 469-70. On June 12, the OIG moreover further found,
in its longer review of “less lethal” weapons and the SPD that:
The use of CCWs which are indiscriminate in their nature,
such as stun grenades and tear gas, should not be used for
dispersion or generally in the context of protests.
(Emphases added.) CP 201 (full report CP 185-217).
Finally, the long-term effect of CS gas on those exposed, including
people simply being home when tear gas is deployed in their
neighborhood, is significant: “The chemical agent also seeps into homes,
contaminates food, furniture, skin and surfaces, and can cause long-term
lung damage.”19
3. Additional information about bystanders in the surrounding
Capitol Hill neighborhood. On June 1, 2020, the city-wide curfew started
at 6pm. CP 37, 39. As noted previously, at 9:10pm that same day, the
19

Tear Gas Is Way More Dangerous Than Police Let On — Especially During the
Coronavirus Pandemic, ProPublica, June 4, 2020,
propublica.org/article/tear-gas-is-way-more-dangerous-than-police-let-on-especially-duri
ng-the-coronavirus-pandemic.

13

 Seattle Police Department deployed blast balls and CS (tear) gas canisters
near the SPD East Precinct at 11th Ave and E Pine St. CP 68. CS gas and
pepper spray both drifted throughout the neighborhood surrounding the
East Precinct and seeped into the homes of residents presumably
observing the curfew.
The zone immediately surrounding the precinct has an estimated
several thousand residents. CP 85.20 A nearby resident that was impacted
shared his story at a Seattle City Council subcommittee hearing:
[T]here was a protest and once the flashbangs and tear gas went
off, it seeped into my apartment. And my three-month-old son,
Nadav, who was sleeping, was awoken from his sleep, coughing,
crying, spitting up mucus, mucus bubbling out of his nose, he was
bright red. And we were forced to leave through our homes. We
ran to our car. We didn't have time to even put him in the car seat
because it was so bad. My wife had to pour breast milk on his eyes
and we had to go and leave our home.
CP 86.21 The next day, June 2, the city-wide curfew began at 9pm. CP 41,
43. At 11:36, the Seattle Police Department deployed OC22 and blast balls
and 100 seconds later, CS gas. CP 68. Chemical agents again impacted
residents in their homes in the area surrounding the East Precinct. A
collective statement from the residents of a building overlooking the
scenes describes how they were impacted:
The SPD’s use of tear gas on the evenings of June 1 and 2
blanketed the intersection of 11th and Pine Street and sprawled
20

Pike/Pine Conservation Study, Lund Consulting for the City of Seattle, 2008, relevant
population information.
21
Azoulai, Daniel, Public comment, City of Seattle Public Safety and Human Services
Committee Meeting, Jun 3, 2020.
22
“OC” (oleoresin capsicum) can mean pepper spray or OC canisters (“pepper bombs”).
Both were used by the SDP between May 29 and June 8, 2020, it’s unclear what was used
when.

14

 throughout the neighborhood. If those of us in nearby buildings felt
the harmful side effects of the tear gas we can only imagine how
the protesters on the ground felt.23
On June 6, 2020, no curfew was in place.24 At 7:36 pm it was well
before sunset when OC and blast balls were deployed at 11th Ave and E
Pine St. CP 64. Although the previous day, Mayor Durkan said during
her press conference, “SPD officers do not need to be using tear gas at
protests as a crowd management tool[,]”25 the SPD merely replaced CS
gas with OC canisters instead,26 allowing clouds of pepper spray to drift
around the neighborhood at a time when residents were likely to be out
doing grocery shopping.27
On June 7, 2020, no curfew was in place. In the early hours of June
8, at 12:04 am, SPD officers again deployed OC and blast balls near the
East Precinct. CP 60. Ten minutes later at 12:14 am, CS gas was again
deployed. Id. This was only two days following an announcement from
Mayor Durkan and Chief Best “suspending the use of CS gas for at least

23

A Call to Action for Businesses and Residents Subjected to SPD Tear Gas During the
Capitol Hill Protests, Capitol Hill Seattle Blog, Jun 5, 2020,
capitolhillseattle.com/2020/06/capitol-hill-community-post-a-call-to-action-for-businesse
s-and-residents-subjected-to-spd-tear-gas-during-the-capitol-hill-protests/.
24
Mayor Durkan Will Be Terminating Citywide Curfew Effective Immediately, Office of
the Mayor, Jun 3, 2020,
durkan.seattle.gov/2020/06/mayor-durkan-will-be-terminating-citywide-curfew-effectiveimmediately/.
25
How ambiguity and a loophole undermined Seattle’s ban on tear gas during George
Floyd demonstrations, Seattle Times, Jun 9, 2020,
seattletimes.com/seattle-news/how-ambiguity-and-a-loophole-undermined-seattles-ban-o
n-tear-gas-during-george-floyd-demonstrations/.
26
SPD Disperses Crowd with Blast Balls, “Chemical Agents,” on Eighth Day of Protests
Against Police Brutality, The Stranger, June 7, 2020,
thestranger.com/slog/2020/06/06/43857405/spd-disperses-crowd-with-blast-balls-chemic
al-agents-pepper-spray-on-eight-day-of-protests-against-police-brutality.
27
Keimig, Jasmyne, Jun 7, 2020,
twitter.com/jasmynekeimig/status/1269535478581100544.

15

 thirty (30) days[.]”28 This assault continued for some time. A resident
within one block of the police assault described the scene on this date:
The onslaught of explosions was relentless, it seemed like they
should stop right away, but they didn’t. I went to my door to see if
anyone needed refuge from the smoke, people were still there
watching the police deploy these explosive weapons. A live band
was playing while in the midst of clouds of smoke and gas. The
sounds of the music punctuated by detonations was devastating.
CP 88-89 (Harvey declaration)
4. Attacks on the press and medics and failure to de-escalate. In
the early days of the protests, when reporters announced their presence to
the police, they were often specifically targeted for violence, or removed
from the scene.29 This has continued through the present day, although the
last evidence admitted at the Superior Court level involved: 1) the
detention of one reporter on the front step of his office on the day the
CHOP was cleared; CP 634; 2) the arrest of a UK reporter on the same
day;30 and 3) At least two assaults on press on Saturday, July 25, which
were detailed in affidavits filed a day before the Superior Court ruled on
July 29. CP 735-37, 750-53.31

28

Durkan, Jenny A. Evaluation of Crowd Management Tactics and Use of Less-Lethal
Tools, Jun 5, 2020, attached as Exhibit 18 to the charging letter.
29
Picket, Jordan, Jun 8, 2020,
twitter.com/jordanpickit/status/1269929380987334658?s=21%5D. Sowersby, Shauna,
Jun 6, 2020, twitter.com/shauna_sowersby/status/1269463849725390849?s=21
30
The night before this case was argued in Superior Court, the CHOP was cleared by
order of the Mayor. Some of the events of that morning were detailed in a pleading filed
by Elliot Grace Harvey on July 1. CP 291-96.
31
See also Charles Woodman, Seattle Considers Resolution To Protect Media, Medics At
Protests, Patch.com, Aug. 16, 2020,
https://patch.com/washington/seattle/seattle-considers-resolution-protect-media-medics-p
rotests

16

 People providing medical assistance were also specifically
targeted, and the police neither provided medical aid to the injured nor
attempted to deescalate before initiating violent confrontations, counter to
the requirements of the Seattle Police Manual (“SPM”) These will be
discussed further in the relevant argument sections. See infra, Section
II.E.
II.

LEGAL ARGUMENT

A. The Mayor’s Statement of Facts is misleading and at any
rate, may be largely disregarded in this case.
Respondents/Cross-Appellants (herein referred to as “Petitioners,”)
could expend tremendous time, energy, and paper refuting details asserted
in the Mayor’s “Statement of the Case.” But this is neither necessary nor
helpful. Under the standard of review, Petitioners’ facts must be taken as
true when examining a petition for recall, as Seattle voters, not any Court,
“will ultimately act as the factfinders.” RCW 29A.56.140; In re Recall of
Kast, 144 Wn.2d 807, 813, 31 P.3d 677 (2001).
The facts in this case are highly disputed, and the Mayor’s Statement
of the Case is disingenuous at best, in large part because it claims
protesters were typically the aggressors. In fact, SPD attacked protesters
time and time again, often with no warning, making otherwise peaceful
protests chaotic and dangerous for protesters, police, and anyone in the
vicinity.
In the end, neither the Mayor nor this Court will determine the facts –
instead, Seattle voters will determine what they believe is true when
17

 signing the petition and/or voting the Mayor out of office. Petitioners will
not waste this Court’s time and attention in disputing individual facts.
B.

Petitioners briefly review the overall standards for
recall cases in this section.

Washington voters have a constitutional right to recall any
nonjudicial elected official who “has committed some act or acts of
malfeasance or misfeasance while in office, or who has violated [her] oath
of office.” In re Recall of Riddle, 189 Wn.2d 565, 403 P.3d 849, 85332
(2017) (citing Const. art. I, § 33). The statutes governing recall
proceedings are RCW 29A.56.110-.270. Id. (citing Const. art. I, § 34).
The courts act solely as gatekeepers in the recall process. The
Courts’ role is to ensure the recall process is not used to “harass public
officials by subjecting them to frivolous or unsubstantiated charges.” In re
Recall of West, 155 Wn.2d 659, 662, 121 P.3d 1190 (2005); See also
Chandler v. Otto, 103 Wn.2d 268, 274, 693 P.2d 71 (1984) (Washington
courts protect public officials from recalls based on “frivolous charges or
mere insinuations”). It is up to the voters to determine whether the
charges are true and, if so, whether they actually justify recalling the
official. Riddle, 403 P.3d at 853. Courts therefore take all factual
allegations from the Petitioners as true. In re Recall of Boldt, 187 Wn.2d
542, 549, 386 P.3d 1104 (2017). At the Supreme Court, “[t]he sufficiency

32

Petitioners apologize for not having pin cites to the Washington Reporter for Riddle.
The law library is currently closed, and Petitioners are unaware of a site that shows page
numbers for recent cases.

18

 of a recall petition is reviewed de novo.” Id. (quoting In re Recall of
Wasson, 149 Wn.2d 787, 791, 72 P.3d 170 (2003)).
C.

The Superior Court correctly found Charge B to be
both factually and legally sufficient.

1.

The facts as presented in Charge B would not be confusing

to either the Mayor or to Seattle voters, and these allegations are factually
well-supported. A recall charge is factually sufficient where the alleged
facts, taken as a whole, “ ‘identify to the electors and to the official being
recalled acts or failure to act which without justification would constitute a
prima facie showing of misfeasance, malfeasance, or a violation of the
oath of office.’ ” (Emphasis added.) Riddle, 403 P.3d at 853 (citing Boldt,
187 Wn.2d at 548, and Chandler, 103 Wn.2d at 274) (further discussion of
misfeasance, malfeasance, and violation of the oath of office are in
sections 2 and 3, immediately below). Part of this test is whether the
petitioners have “knowledge of identifiable facts” which support the
charges. RCW 29A.56.110;  In re Recall of Wade, 115 Wn.2d 544, 549,
799 P.2d 1179 (1990).33
The Petitioners here provided ample evidence of the facts below,
and in fact continued to supplement the record while the case was still
active in Superior Court. CP 291-96, 596-639, 655-789. And indeed, the
Mayor’s team does not assert that the Petitioners’ lacked sufficient facts to
support their allegations. See generally, AOB at 17-20 (arguing factual
33

An additional consideration is that, in those cases where an official is charged with
violating the law, the petitioners must have knowledge of facts indicating the official
intended to commit an unlawful act. Wade, 115 Wn.2d at 549. This will be discussed
specifically in Section 3, below.  

19

 sufficiency).34
The Mayor does claim that the charges are still factually insufficient,
because they do not sufficiently inform the Mayor or the voters of what is
alleged so that they can make informed decisions. AOB at 17. The Mayor
cites to two cases for this proposition, one of which is In re Recall of
Kelley, 185 Wn.2d 158, 369 P.3d 494 (2019). AOB at 17-18.
The Mayor claims that Petitioners must explain what the Mayor
should have done as a part of their petition. The Mayor bases this
argument on Kelley, claiming that petition failed because it did not include
“any specific facts regarding how [State Auditor] Kelley deficiently
performed his duties by failing to discover Sound Transit’s [financial]
fraud.” AOB at 18, citing 185 Wn.2d at 169.
The Kelley Court does mention briefly that even if petitioners there
had succeeded at showing Kelley had a duty to uncover the Sound Transit
fraud, they had not shown any facts that noted he had performed
deficiently. 185 Wn.2d at 169. This is not relevant here, because
Petitioners have shown grave harm to protesters and residents of Seattle,
due to the Mayor’s inaction in the face of her assigned duties under the
City Charter. This is a manifestly deficient performance.
Even more importantly, in Kelley, this Court largely found the
petition insufficient because the State Auditor has no authority to

34

In addition to the specificity argument, the Mayor also argues that Petitioners have not
identified a statute or standard that was violated by the Mayor. AOB at 18-23. This is
not the case, but is more appropriately a discussion of legal sufficiency, and is therefore
addressed in sections 2 and 3, infra.

20

 investigate or supervise the financials of a non-state entity — and Sound
Transit is a local entity, not a state entity at all. 368 P.3d 498.35 To claim
that Kelley actually stands for the premise that a Petitioner must explain
exactly how an official should have solved a given problem is misleading
at best. Unlike the respondent in Kelley, the Mayor does indubitably have
the relevant authority over SPD, especially in a state of emergency, such
as that the Mayor had proclaimed, twice over before this petition was
filed.
The Mayor could lawfully — as she even agrees — have taken
charge of the police department because of the emergency that she herself
declared. Seattle City Charter, Art. V, §2. Or she could have lawfully
dismissed the Chief of Police and, with the help of the City Council,
replaced her with someone more respectful of the constitutional rights and
the health of protesters. Seattle City Charter, Art. VI, §2. Or she could
have issued unambiguous orders to the Chief to ensure that when police
used these weapons, they complied with the federal TRO, and only used
them in positions involving “life safety,” because the SPD has manifestly
not been using them in that manner.36 CP Seattle City Charter, Art. VI, §2.
In just one example, people protesting on July 25 frequently and
independently described police shooting projectiles and gas at retreating
and/or complying protesters; that behavior does not protect lives - if
35

Pin cites are to the Pacific Reporter, because page numbers are not available for the
Washington reporter online.
36
Tammy Mutasa, 'It's pretty traumatizing': Protester hit by SPD flash bang says she
nearly died, Komo News, Jun. 9, 2020
komonews.com/news/local/protester-injured-by-exploding-flash-bang-shares-her-story

21

 anything, quite the reverse. CP 658, 659, 669, 677-78, 684, 716-17, 722,
736, 751, 756-57, 760.
Or Mayor Durkan might have taken yet another, different, lawful
action that still protected the protesters and citizens of Seattle from
unlawful, violent conduct by the SPD - perhaps mediation between the
parties or something entirely unimagined herein. In any event, even the
section of the City Charter the Mayor cites frequently makes it clear the
Chief of Police must answer to the Mayor as regards law enforcement:
“the Chief of Police shall be responsible to the Mayor for the
administration of the Police Department and the enforcement of law.”
Seattle City Charter, Art. VI, §4. This means that the Mayor’s use of
Kelley in her argument is not just missing the point, but is a
counter-example to the situation wherein the Mayor found herself. Unlike
Kelley, she had both a duty, and the authority, and still she declined to do
anything of substance.
The Mayor had ample power and authority to stop the violence.
What she did was worse than nothing. She talked about protecting the
rights of protesters, but based on the actions of SPD, which continues to
gas and/or abuse protesters at most nightly protests to the present day, she
did nothing at all to keep the peace or enforce the law.
She has, on the other hand, claimed incorrectly that she had no
right to control the police over Chief Best. She has vetoed the budget cut
to SPD by the City Council, which body sought to defund the SPD in
22

 response to their open acts of violence (the power of the purse being the
only one the Council can legally wield).37 She has told the protesters that
she will not outlaw gas.38 She has, through the City Attorney’s office,
lobbied the federal court to conclude that the City Council had no ability
to legislate away the ability of the SPD to use chemical weapons and other
dangerous crowd control measures without going first through review via
the consent decree,39 although at least the first time, Judge Robard found
against her and the SPD:
The court also notes that other restrictions on SPD’s use of
crowd control weapons have been recently imposed
without eliciting the same reaction from the City or the
Government concerning any conflict with the Consent
Decree. For example, on June 12, 2020, the Honorable
Richard A. Jones issued a TRO limiting SPD’s use of
chemical irritants and projectiles….Further, on June 5,
2020, Seattle Police Chief Carmen Best issued her own
suspension of SPD’s use of CS gas for at least 30 days...,
neither of these other actions provoked the City or the
Government to notify the court of any potential
inconsistency with the Consent Decree or the need to
impose injunctive relief. Accordingly, the court concludes
that neither SPD nor the Mayor have established either a
likelihood of success on the merits or even serious

37

Evan Bush, Mayor Durkan vetoes council’s 2020 budget revision that would have cut
up to 100 Seattle police officers, Seattle Times, Aug. 21, 2020,
https://www.seattletimes.com/seattle-news/mayor-durkan-vetoes-councils-2020-budget-r
evision-that-would-have-cut-up-100-police-officers/; Alfred Charles, Seattle Mayor
Jenny Durkan issues veto of City Council budget plan that cut police funding, KOMO
News, Aug. 21, 2020,
https://komonews.com/news/local/seattle-mayor-jenny-durkan-to-veto-city-council-budg
et-plan-that-cut-police-funding
38
https://twitter.com/UrbanistOrg/status/1267976301823967232
https://www.facebook.com/stuart.t.apy/videos/10223924720052535/ (last exchange about
gas begins at 1:46:39)
39
The Notice the federal court received was from the City Attorney’s office, on behalf of
SPD, but because Mayor Durkan explicitly joined SPD in making the request to enjoy
enforcement of the City Council ordinance, the Judge Robard addresses her in his order.
https://www.documentcloud.org/documents/6997513-Notification-of-New-Ordinance.ht
ml (p. 6 of document)

23

 questions going to the merits of the claim. (Emphasis
added.)40
See also CP 472-77 (Council ordinance 126102, passed June 15, 2020).41
In short, the Mayor has — rather than trying to protect the protesters —
actively advocated against any effective controls on the SPD. She has
taken the letter of the consent decree and used it to violate its spirit. The
consent decree was intended to protect the people of Seattle from the
unconstitutional acts of the SPD, and yet she has used it to protect the
police from the consequences of their own behavior, when they have
grossly misused the weaponry with which the city provided them.
The Mayor also cites to In re Recall of Bolt, and claims that the
allegations of inaction against her are the equivalent of the allegations in
that case, which were that a city councilmember “bullied and harassed” a
town employee, with no specific allegation of what form such “bullying
and harassment” took, or when, or where. AOB at 17, citing 177 Wn.2d
168, 177, 298 P.3d 710 (2013).
Bolt is not on point. Petitioners have taken pains to explain how
many times Mayor Durkan was asked to take action, and how the rights of
the protesters continued to be violated, and still the Mayor did not take any
action that could have conceivably stopped or at least limited the
insupportable violence committed by SPD.

40

https://assets.documentcloud.org/documents/7000648/Robart-Order.pdf, p. 6.
Judge Robard did sign a TRO two days later, at the request of the Department of
Justice, until reports from OIG, CPC, and OPA could be reviewed.
41

24

 The fact that in Mayor Durkan’s case, Petitioners assert inaction
does not mean they have not explained the facts sufficiently. Attached
again, as it was during the Petitioner’s response to the Mayor’s Motion for
Reconsideration, is a matrix showing some of the times the mayor was
asked to take action.42 This only contains 16 of the 56 rows in the original
matrix, which either show requests by relevant parties to Mayor Durkan to
stop the violence, or the circumstances that created such requests:
Date

Event

Source

June 2

Police claim that a “riot” broke out by the East
Precinct and deploy CS gas, pepper spray, and
flash-bang grenades by the precinct. The
incident starts with a police officer snatching the
pink umbrella of a protester. Footage shows
chaos after the blocks filled with gas

43

June 2

Protesters chant “no gas, no gas” at a meeting
with Mayor Durkan prior to her press conference.
She responds, “I'm not going to stand up and
make a promise.”

44

June 5

Issuing a memorandum to Mayor Durkan, Chief
Best, and the City Attorney, all three of Seattle’s
police oversight agencies — the CPC, OPA, and
OIG — jointly recommend the SPD stop using
CS gas, noting:
SPD has no department-wide policies on the use
of tear gas. Police officers should not be

CP 185 217

The full matrix is at CP 610-20.
https://mynorthwest.com/1906245/live-updates-seattle-bellevue-protests;
https://twitter.com/HannaKIROFM/status/1267674896009584640?ref_src=twsrc%5Etfw
%7Ctwcamp%5Etweetembed%7Ctwterm%5E1267674896009584640%7Ctwgr%5E&ref
_url=https%3A%2F%2Fmef_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm
%5E1267674896009584640%7Ctwgr%5E&ref_url=https%3A%2F%2Fmynorthwest.co
m%2F1906245%2Flive-updates-seattle-bellevue-protests%2F%3F
44
https://twitter.com/UrbanistOrg/status/1267976301823967232
https://www.facebook.com/stuart.t.apy/videos/10223924720052535/ (last exchange about
gas begins at 1:46:39)
42
43

25

 deploying use of force tools for which they do not
have policies and training. That is not how our
system of police accountability works, nor should
it. (Emphasis added.) The same article also
condemns other respiratory irritants and blast
balls.
June 5

The head of the Seattle Office for Civil Rights, a
Durkan appointee, writes an open letter to her
staff after attending the protests and being
terrified by police behavior. She urges the city to
“immediately halt” using tear gas, flash-bang
devices and rubber bullets during
demonstrations.
“What I experienced in person and have seen in
video footage has been terrifying. I have heard
from other city leadership and employees that
they fear for their personal safety, not because of
other protesters but because of the police.”

45

June 5

43rd District Democrats call on the mayor to
resign because she failed to protect protesters:
“Multiple reports, photos, and videos show the
Seattle Police Department targeting peaceful
protesters, children, and members of the media
with tear gas, pepper spray, flash bangs, and
rubber bullets, while frequently covering their
names and badge numbers with tape….”

46

June 6

Fearing imminent violence, local journalist
Omari Salisbury calls on elected officials to
come to the barricades. Councilmembers
Mosqueda, Herbold, Strauss, Morales,
Representative Macri, and King County
Councilmember Zahilay all come to the scene.

47

45

http://www.chronline.com/northwest_regional_news/seattle-mayor-police-chief-agree-t
o-ban-use-of-tear-gas-on-protesters-amid-ongoing/article_3c510f22-a834-11ea-864d-3fd
5fa5654de.html
46
https://thecisforcrank.com/2020/06/05/another-day-of-protests-small-concessions-fromthe-city-and-calls-for-systemic-change-in-seattle/
https://docs.google.com/document/d/1Eyndzr3YyrqgqBgLw7haREiT9b3t2HIx2UtBD7IF
ta4/edit
47
https://thecisforcrank.com/2020/06/05/another-day-of-protests-small-concessions-fromthe-city-and-calls-for-systemic-change-in-seattle/;
https://docs.google.com/document/d/1Eyndzr3YyrqgqBgLw7haREiT9b3t2HIx2UtBD7IF
ta4/edit

26

 Councilmember Morales tweets en route that she
has called both Mayor Durkan and Chief Best.
June 7

A letter to Mayor Durkan from 26 elected
officials is released publicly, with the signers
asking “We firmly request that you direct SPD to
change their tactics....” The letter is signed by 4
members of the City Council, 3 members of the
County Council, 6 state senators, and 13 state
representatives.

[26]

June 7

Police use pepper spray and flash-bang grenades
on protesters, despite the agreement the previous
day to not use CS gas, Councilmember Sawant is
hit by tear gas at the protests.

48, 49

A young protester is nearly killed after being
struck in the chest by a flash-bang grenade shot
by police. Her heart stops beating three times
enroute to the hospital
The video of the assault on the protester is
especially relevant. She stands, a few paces from
other protesters, unmoving, with her hands
partially raised, perhaps 30 feet from the police
line. A shot rings out, and she turns and drops to
the ground. Volunteer medics rush in to help her,
and the police line continues to fire projectile and
gas at the protesters who are dragging her away.
June 8

Councilmembers Tammy Morales and Teresa
Mosqueda join in Councilmember Kshama
Sawant’s call for the mayor to resign: Mosqueda
further says, “How many people need to write in
about being gassed? How many people have to
be sprayed in the street every night? The mayor
should ask herself if she is the right leader, and
resign.”

50

48

https://abcnews.go.com/US/wireStory/latest-statue-gen-wickham-toppled-richmond-711
17416; https://mobile.twitter.com/cmkshama/status/1269897621218312192?lang=en
49
https://komonews.com/news/local/protester-injured-by-exploding-flash-bang-shares-her
-story; https://youtu.be/qjkbPbEPfPc (video of attack where protester shot by SPD
projectile); https://www.youtube.com/watch?v=yQUsbmAzLrs (also video of protester
being shot by SPD projectile, different view, relevant portion of video starts at 1:48)
50
https://www.kuow.org/stories/3-seattle-council-members-say-mayor-durkan-should-resi
gn-after-police-response-to-protests

27

 June 9

The Citywide Race and Social Justice Initiative
(RSJI) Change Team Co-Leads, representing 28
different city agencies tasked with undoing
systemic racism, call directly on Mayor Durkan
to protect the protesters, enforce de-escalation
requirements, and end the use of chemical
weapons during COVID-19.

51

Jun 10

10 elected officials of color send an open letter to
Mayor Jenny Durkan and Chief Best, calling
upon them first and foremost to: “sto[p] the use
of all forms of chemical substances for crowd
control; en[d] the use of rubber bullets and
flash-bangs; and demilitariz[e] police on the
streets who interact with protestors.”

52

Jun 11

The Pride Foundation issues an open letter to
Mayor Durkan that is signed by 16 leaders from
13 different LGBTQ organizations, in part
stating:

53

Your response has been to stand by SPD, even as
they escalate violence day after day. Your
response has been to ignore community voices
asking that the SPD budget needs to be cut. Your
response has been to use your sexual orientation
as a way to insinuate deeper empathy for these
calls for action than your actual actions suggest.
….
We know what that means: you are not listening.
Jun 18

A new business coalition of tech leaders for
racial justice calls on the mayor, demanding she
implement the CPC police reforms.

54

51

https://thecisforcrank.com/2020/07/06/fbi-says-there-was-specific-threat-against-east-pr
ecinct-durkan-letter-dodges-protesters-three-demands/ (link to letter itself is midway
down, in the paragraph) “A month after the heads of the city’s Race and Social Justice
Initiative “change teams” sent a letter to Mayor Jenny Durkan asking her to substantively
address the demands of protesters, Durkan has responded, with a letter outlining many of
the same actions the mayor has highlighted in her press appearances since George Floyd’s
murder sparked protests against police violence in late May.”
52
http://seattlemedium.com/10-elected-officials-of-color-send-letter-to-mayor-durkan-and
-chief-best/
53
https://pridefoundation.org/2020/06/a-joint-open-letter-from-seattle-lgbtq-organizational
-leaders/
54
https://www.geekwire.com/2020/seattle-tech-business-leaders-form-racial-justice-coaliti
on-demand-police-reforms/

28

 The ACLU, the Fred T. Korematsu Center for
Law and Equality, and Perkins Coie send a letter
to the City Attorney’s office, asserting that the
SPD has violated Judge Jones’ TRO multiple
times, as well as the new Council ordinance that
prohibits the use of blast balls, tear gas, and
pepper spray. The letter demands that the city
“immediately direct the officers to not to deploy”
such weapons.

Jul 9

July 10 Councilmember Lisa Herbold issues another
open letter to Mayor Durkan, this one about the
constituted violations of rights and the
arrest/detention of reporters:
“It is our job as elected officials to ensure the
press remains free and is able to carry out its
work, in accordance with the Constitution and
City law. The Constitution and Municipal Code
protections for the press, and observers, do not
exist for the convenience of government, to be
cast aside whenever they happen to be
inconvenient to government.”

55

56

Neither the Mayor nor Seattle voters are or will be confused by the
allegations of the petition. Some voters may agree with the Mayor’s
version of the facts, other voters will not. But ample facts are before this
court that Charge B is sufficiently explained and factually supported to go
to the citizenry.
2.

The failure to act to prevent violence, in spite of her duty

to enforce the laws and keep the peace — after weeks, and then months —
constitutes at minimum misfeasance and violation of the Mayor’s oath of
office and thereby is legally sufficient to go to the voters. Besides “factual

55

https://twitter.com/KorematsuCtr/status/1281377739849609218
https://herbold.seattle.gov/west-seattle-bridge-update-2020-budget-rebalancing-delibera
tions-new-homeless-service-provider-funding-directors-rule-for-exceptional-and-significa
nt-trees-jump-start-investments-seattle/
56

29

 sufficiency,” the other threshold question in a recall petition is whether the
charges are “legally sufficient.”  Greco v. Parsons, 105 Wn.2d 669, 717
P.2d 1368 (1986).  To be legally sufficient, the charges must describe
conduct that would be a prima facie case of misfeasance, malfeasance, or a
violation of the oath of office. Chandler v. Otto, 103 Wn.2d at 274.
“Misfeasance,” “malfeasance” and “violation of the oath of office” are
statutorily defined:
(1) “Misfeasance” or “malfeasance” in office means any
wrongful conduct that affects, interrupts, or interferes with
the performance of official duty;
(a) Additionally, “misfeasance” in office means the
performance of a duty in an improper manner; and
(b) Additionally, “malfeasance” in office means the
commission of an unlawful act;
(2) “Violation of the oath of office” means the neglect or
knowing failure by an elective public officer to perform
faithfully a duty imposed by law.
RCW 29A.56.110. These definitions, as well as the rest of the recall
statute, are to be construed in favor of the voter, not the elected official.  
In re Pearsall-Stipek, 141 Wn.2d 756, 765, 10 P.3d 1034 (2000), citing
Pederson v. Moser, 99 Wn.2d 456, 462, 662 P.2d 866 (1983).  Once again,
the facts as averred by the Petitioners are assumed to be true for this
analysis. West, 155 Wn.2d at 662, citing Kast, 155 Wn.2d at 813.
It is fundamentally the duty of the Seattle mayor to “see that the
laws in the City are enforced” and to “maintain peace and order.” Seattle
City Charter, Art. V, §2. These mayoral duties are mandatory under the
Charter. Id. See, e.g., Erection Co. v. Dept. of Labor & Indus., 121 Wn.2d

30

 513, 518, 852 P.2d 288 (1993) (“It is well settled that the word ‘shall’ in a
statute is presumptively imperative and operates to create a duty….”).
If, as here, the behavior of the SPD violates the law and the rights
of Seattle citizens, it is incumbent upon the mayor to stop such violations.
Indeed, the Mayor has the duty to do so under the City Charter, and is the
only elected official in a position to do so, given her express authority
under the same document.
Here, because no one else has been able to stop the SPD’s violent
behavior, and Mayor Durkan has declined to do so, unknown numbers of
protesters have been injured. Unknown numbers of protesters have been
cowed from the streets, deprived of their right to protest peacefully.
Unknown numbers of residents of downtown Seattle and Capitol Hill have
suffered invasions of their homes by chemical weapons forbidden in
wartime, but not forbidden when used by SPD in a global pandemic.57 We
know the names of only a few of these people, via the media, social
media, and affidavits filed in this case and related cases.
But there are so many others. As this Response Brief is being
drafted on Monday, September 7, this writer is also watching Nikkita
Oliver’s current livestream, in front of SPD’s West Precinct. There Ms.
Oliver is narrating as SPD officers wash blood off the sidewalk, because
57

It is notable that tear gas was banned in wartime by the 1925 Geneva Protocol, in the
aftermath of an influenza pandemic where World War I had accelerated the spread of a
respiratory disease. Activist Shaun Scott wrote recently about this and noted “On several
occasions in recent weeks, Seattle police — seemingly unconcerned with COVID-19 —
used the chemical agent on protestors, covering the city’s most densely populated
residential neighborhood with it on June 7.”
https://crosscut.com/2020/07/durkan-seattle-police-and-undermining-civil-liberties

31

 earlier in the evening, a Black protester identified as “TK” was tackled to
the ground by SPD in the course of an arrest for obstruction, striking their
head on the curb. “TK,” is still being filmed by Ms. Oliver, looking
dazed, with blood all over their face, as they sit in police custody,
surrounded by officers far larger than them. As this writer continues to
watch, upon Ms. Oliver’s cajoling, “TK” is being loaded into an
ambulance to be taken to Harborview Medical Center.58
This is happening right now, tonight. A completely separate
Twitter video, also taken tonight at a different location, shows SPD bicycle
officers rolling into a peaceful protest outside the Seattle Police Officer’s
Guild and immediately starting to arrest people and fire pepper spray with
no visible motivation and no order to disperse.
https://twitter.com/CrabSabbath/status/1303215078531936256 . The same
account explains:
Nobody was prepared for that level of blatant assault. The
pepper spray didn't help matters. And yes, no warning or
dispersal order was ever given. This was their arrival.
We’ve seen so many people assaulted by SPD since May 30th
https://twitter.com/CrabSabbath/status/1303215078531936256
Another protester wrote tonight of the same event:
SPD sent 15 vehicles and bearcat, deployed blast balls and
tear gas immediately on the crowd, and THEN declared an
unlawful assembly. SPD are the agitators.
https://twitter.com/Alyfacee/status/1303150953831395329

58

https://www.facebook.com/nikkitaroliver/videos/10100934830070270/?notif_id=15995
40729570428&notif_t=live_video&ref=notif

32

 If this is just what this writer sees, tuning into social media on this
random night in September, as this draft inches toward done, how many
others have there been, who have been unseen?
These many assaults implicate the welfare of Seattle residents, as
well as their constitutional rights under the federal and state constitutions their right to freedom of assembly and redress of grievances; their right to
freedom of speech, their right to be secure in their own houses; and given
their bodily injuries and their frequent arrests, their right to due process.
US Const., Amend. 1, 4, 14. Washington Const., Art. 1, §§ 3-5, 7.
These are most certainly not, as the state baselessly claims, “naked
castings into the constitutional sea.” AOB at 26, citing State v. Johnson,
119 Wn.2d 167, 171, 829 P.2d 1082 (1992). This dismissive attitude to
the bodily injuries and emotional trauma of uncounted Seattle residents is
to basically argue that protesters do not have a right to either bodily
autonomy or to peacefully protest and express themselves. It is moreover
to argue that Seattle residents of downtown and Capitol Hill have no right
to be safe in their own homes from chemical weapons - weapons that are
illegal in wartime, no less.
Mayor Jenny Durkan is the only elected official with power over
the SPD. She is thus the only person answerable to Seattle voters when
the SPD violates citizens’ rights. She is, moreover, a person tasked with
maintaining peace and order in the city, and enforcing its laws, a task she
has refused to shoulder.
33

 As we know, the SPD could be controlled by the Mayor in any
declared emergency. Seattle City Charter, Art. V, §2 (control during
emergencies). Currently Seattle is still under the Mayor’s emergency
proclamation due to COVID-19, although she terminated the emergency
proclamation regarding the George Floyd protests on June 17. CP 49-52
(COVID-19 order still in place). And the Mayor has at all times the power
to fire a Police Chief and to largely hire another. Art. VI, §2 (Mayor may
remove Police Chief).59 For Mayor Durkan to allow these offenses to
occur over and over, and to take no action to intervene when she is
responsible for the execution of the laws and the peace of the city, is at
minimum malfeasance and violation of her oath of office.
In In re Recall of Kast, the Respondent argued that because there
was no punishment for violating the open bidding law, his conduct could
not possibly be malfeasance. 144 Wn.2d at 815. This Court disagreed:
Nevertheless, his conduct would still be considered
malfeasance under section (1) because his violation of the
law was “wrongful conduct” and because his conduct
“[i]nterfered with the performance of official duty” by
failing to promote the best interests of the fire district. As a
result of his conduct, the fire district could not be sure that
it had received the best value or price for the culvert ditch
project.

59

In fact, Interim Chief Diaz was appointed solely by Mayor Durkan when Chief Best
recently announced her intent to resign.
https://mynorthwest.com/2085146/spd-interim-chief-search-for-replacement-2020/
Because he is “Interim Chief,” Mayor Durkan need not have the City Council’s
agreement to his taking control, and she has already announced that she will not seek a
permanent replacement in 2020. Id. This means the City Council will continue to have
no input into the control of the SPD for an indefinite period. See Seattle City Charter,
Art. VI, §2 (appointment of [permanent] police chief subject to confirmation by City
Council).

34

 (Internal cites omitted.) 144 Wn.2d at 815-16. Here, not unlike Kast, the
Superior Court found that “the gravamen of the [Superior C]ourt’s ruling
as summarized above is more broadly the [Mayor’s] alleged failure to
protect the health and well-being of the community,” given her duties as
Mayor. (Emphasis added.) CP 792. See also, In re Recall of Pepper, 189
Wn.2d 546, 559, 403 P.3d 839 (2017) (allegations against respondent were
not that her actions was criminal or illegal, but that they “violated her duty
as a council member”).
As she took office, Mayor Durkan swore in relevant part to:
...support the constitution of the United States, the
constitution of the State of Washington, and the charter and
ordinances of the City of Seattle, and that I will faithfully
conduct myself as mayor for the City of Seattle.
By not protecting her electorate, by not enforcing the laws and
maintaining the peace and order of the City as charged to her, Mayor
Durkan has not “faithfully conducted herself” as mayor. In addition, she
has supported neither the state and federal constitution — rather, she
turned a blind eye to the concerns of both.
The facts thus show that Mayor Durkan has at minimum
committed malfeasance and violation of her oath of office. Even without
more, this means that Charge B meets the requirements of legal
sufficiency.
3.

“Intent” is not required if a violation of the law is

not alleged, but insofar as this Court believes Mayor Durkan committed
misfeasance, her intent can be inferred from the facts. If a recall petitioner
35

 charges an elected official with the commission of an unlawful act — in
misfeasance, for example — “the petitioner must show facts indicating the
official had knowledge of and intent to commit an unlawful act.” Id. See
also Wade, 115 Wn.2d at 549. This is because recall via misfeasance is
not intended for those situations where a respondent made a “simple
mistake.” Pearsall-Stipek, 141 Wn.2d at 779.
Petitioners need not show an intent to break the law if the recall is
based on misfeasance or violation of the oath of office — this requirement
only applies to recall charges that are based on violation of a statute.
Because Mayor Durkan’s inaction constituted both misfeasance and
violation of her oath of office, “intent” is simply not at issue in this case.
Even so, intent can be inferred here.
In proving knowledge of the unlawful act and an intent to commit
it, voters may draw reasonable inferences from the facts alleged. In re
Recall Charges Against Davis, 164 Wn.2d 361, 370-71, 193 P.3d 98
(2008), citing West, 155 Wn.2d at 666-67. In Davis, this Court did not
need Port Commissioner Davis to admit she had unlawful intent when she
signed an agreement to pay benefits to the retiring CEO of the Port of
Seattle, because:
We can infer from the record that Comm. Davis understood
her duties as port commissioner and the legal necessity of
voting in public session before potentially obligating the
Port in any monetary agreement, and, for purposes of
recall, intentionally acted outside the scope of these duties
by signing an agreement with Dinsmore. We find the
charge Comm. Davis signed an agreement with intent to
36

 commit malfeasance and without authority factually
sufficient.
(Emphasis added.) See also Pearsall-Stipek, 141 Wn.2d at 779 (intent
could be inferred from the fact that alleged falsehoods occurred shortly
after County Auditor had been put under oath, which would have
reminded her of “her legal obligation to tell the truth”); In re Recall of
Sandhaus, 134 Wn.2d 662, 671, 953 P.2d 82 (1998) (intent could be
inferred when prosecutor continued spending after being warned to stop
by the Board and an auditor).
Here, Mayor Durkan was requested on many occasions by many
independent parties to intervene in the unlawful conduct of the police.
The debate about her inaction was exceedingly public. In addition, Mayor
Durkan is herself a lawyer and former US attorney, and she doubtless
knows what is legal police behavior and what is not. Given that here, the
Mayor made an informed choice to let the police continue in their crimes
unabated, this choice was indubitably “intentional” within the meaning of
the recall rules.
4.

If there is such a thing as “abuse of discretion,” this must

necessarily be it. An elected official cannot be recalled for appropriately
exercising the discretion granted him or her by law. Chandler, 103 Wn.2d
at 274. An official may be recalled for execution of discretionary acts
only if the “official exercised discretion in a manifestly unreasonable
manner.” In re Recall of Shipman, 125 Wn.2d 683, 685, 886 P.2d 1127
(1995).
37

 Mayor Durkan did not intervene on May 30, June 1st, June 2nd;
perhaps these failures were within her discretion, given that it might take
time for her to see that the pattern of police violence wasn’t changing, or
for her to hear from experts that using a lung irritant during a global
pandemic was reckless and dangerous. But after more information was
released about the special dangers of respiratory irritants in a respiratory
pandemic, and after those dangers were reiterated by multiple sources
including the City Council and the CPC, OIG, and OPA, the Mayor was
informed to a degree that fully equipped her to act.
Here, she continues to not intervene in a situation where citizens
risk injury nearly every night and the SPD violates their rights to freedom
of assembly, freedom of speech, and insofar as the protesters are injured or
arrested, their due process rights, and it does so over and over in order to
maintain its grip on power.
This is not a reasonable exercise of discretion. It is an abuse of
power. The direct abuse of citizens is by the SPD, but the SPD could not
accomplish it without the willing inaction of the Mayor.
D.

The Superior Court erred when it struck Charge
E or, in the alternative, when it did not expand
Charge B to recognize the peril the actions of the
SPD caused for bystanders, for example
residents in the neighborhoods where chemical
weapons were deployed.

The Superior Court struck Charge E, finding it duplicative of
Charge B. CP 301. But while Charge E also focused on the use of
chemical weapons during the same timeframe, the Superior Court appears
38

 to have overlooked that Charge E was describing an entirely different class
of victims of SPD: the persons who might not be protesting at all, but who
were nonetheless exposed to chemical weapons while in the putative
safety of their own homes.
The East Precinct is in the middle of Capitol Hill, a mixed-use,
residential neighborhood of Seattle. The precinct is surrounded by not just
restaurants and retail, but also a number of apartment buildings, and it is
less than a block from single family homes beginning and continuing up
the hill.
The Statement of the Case herein reviewed several statements by
local residents about how they were affected by the gas released and the
nightly explosions, including that of Petitioner Elliott Grace Harvey. See
infra Section III(B)(3) at 13-16. It is undisputed that these local residents
bore a significant burden in terms of the protests and the police response.
The lack of concern that SPD showed for the health and well-being
of their own neighbors is highly relevant to the recall and should in all
fairness be a part of it. These people - adults and children alike - were
repeatedly assaulted in their own homes by SPD gassing them. For these
reasons, either Charge E should be reinstated, or the language of Charge B
should be expanded to include their suffering.
E.

The Superior Court erred when it failed to sustain
Charge C, because it was well-supported that SPD: 1)
attacked and harassed both press and volunteer medics
onscene; 2) failed to provide care to protesters SPD
injured; and 3) failed to use de-escalation techniques,
39

 and Mayor Durkan had notice of these illegal acts, as
she did of the inappropriate use of chemical weapons.
The Superior Court struck Charge C on the basis that Mayor
Durkan could not be held accountable via recall “for the actions of her
subordinates, without her knowledge, not at her direction.” CP 301. This
-- roughly speaking -- follows the reasoning of cases like In re Recall of
Reed, 156 Wn.2d 53, 58-59, 124 P.3d 279 (2005) and In re Recall of
Morrisette, 110 Wn.2d 933, 936, 756 P.2d 1318 (1988). But this case does
not match those fact patterns.
In Reed, the Petitioners sought to recall Secretary of State Sam
Reed, based upon the behavior of the King County Elections staff. But the
King County Elections (KCE) staff does not report in any way, direct or
indirect, to the Secretary of State. Instead, KCE staff are appointed and
report to the King County Executive, a separately elected position. 156
Wn.2d at 58. As such, this court found that Reed could not be held
responsible for “conduct beyond his knowledge or ability to direct,”
because he could not be held responsible for the actions of “a wholly
separate governmental agency.” Id.
Similarly, in Morrisette, the Petitioners attempted to recall the
county sheriff, asserting that certain deputies in the sheriff’s department
had failed to complete certain duties, or had performed those duties
improperly. 110 Wn.2d at 935. This Court noted:
While this might be true as a principle of tort law
[respondeat superior], appellants cite no authority for the
proposition that a public official may be recalled for the act
40

 of a subordinate done without the official's knowledge or
direction.
Id. at 936.
Here, there is no question whether Mayor Durkan could have
directed the police chief to institute different policies -- she certainly
could. Or she could have taken over the SPD herself, given that there was
an emergency declared. So the question remaining is whether the Mayor
knew that these improper activities were taking place. The Superior Court
found below that the Mayor could be assumed to have known about the
improper tear gas attacks after some time had passed, and multiple parties
had commented on the situation. So, too, the Mayor would have known
about the other bad acts of the SPD in a short period of time, certainly
before the Superior Court’s final ruling on July 29th.
1.

SPD attacked, harassed, and arrested members of

the press, in violation of SMC 12.A.12.020, and this became well known.
SMC 12A.12.020 addresses “public safety orders” and failure to disperse
in regard to the press:
No such order shall apply to a news reporter or other person
observing or recording the events on behalf of the public
press or other news media, unless [they are] physically
obstructing lawful efforts by such officer to disperse the
group.
There were attacks on the press from early in the protests. In one video
taken on June 1, a TV team is hit by what appears to be either a firework
or a tear gas grenade (the item remains on the ground issuing smoke like
such a grenade), and as the team is retreating, the reporter states that they
41

 were hit by items that came from SPD.60 Other reporters described early
mistreatment at the hands of the police.61
There were also apparent incidents of reprisal. For example, Evan
Hreha was not an official journalist, but he was the man who took the
video of the child who was pepper sprayed by police on May 30.62
Outraged by the activities of the police, he released that video almost
immediately to social media. On June 6, he was arrested while walking
home, allegedly for use of a laser to shine at police officers earlier in the
night. Hreha says he was cooking hot dogs all evening, which he and his
friends were distributing to hungry protesters for free. He offered to be
searched, and said he didn’t have a laser on him and does not even own
one, but after his arrest, he was held for 46 hours with no charges or
opportunity to be released. The Seattle City Attorney has apparently
declined to file charges in Hreha’s case.
These happened prior to the filing of charges, but when the CHOP
was forcibly disbanded by SPD on July 1, there was a clear goal of
keeping journalists away from the activity, and one UK reporter was
arrested and held. For example, a reporter from The Stranger emailed
Petitioners to explain how he was blockaded by SPD from getting to his
office in the CHOP by police. See CP 634 (email from Rich Smith).
60

https://twitter.com/Acyn/status/1267673936659021830
Picket, Jordan, Jun 8, 2020,
twitter.com/jordanpickit/status/1269929380987334658?s=21%5D. Sowersby, Shauna,
Jun 6, 2020, https://twitter.com/Shauna_Sowersby/status/1269463849725390849
62
https://www.kuow.org/stories/he-captured-footage-of-child-pepper-sprayed-during-seatt
le-protest-then-was-arrested;
https://techcrunch.com/2020/07/18/for-seattles-cop-free-protest-zone-tech-is-both-a-revol
utionary-asset-and-disastrous-liability/
61

42

 Omari Salisbury reported from inside the CHOP that all journalists had
been moved out of the CHOP the morning of the clearing.63
Omari Salisbury, whose office at Converge Media is in the same
block as The Stranger, was forced by police to stand on his doorstep as he
repeatedly explained to officers that he was press and they could not hold
him. CP 626.64 They also warned him that he had to stop broadcasting or
he would be arrested. Id.65 He live streamed this whole interaction,
including the police officer repeatedly telling him there could be no media
inside the CHOP, “by order of Mayor Jenny Durkan.” Id.66
This was covered later by John Helmiere in Real Change:
Thousands of us watched Omari Salisbury livestream the SPD
sweep of CHOP and return to the East Precinct. We saw cops
repeatedly harass Salisbury. They demanded he leave the area and
threatened to arrest him. His office is next door to the precinct, he
has been at the scene daily for a month, he displayed his press
credentials and he gently explained that he was a journalist. The
officers got more agitated. Salisbury kept filming, but backed far
enough from the scene that it was hard to see what the police were
doing. Salisbury soon tweeted about the police, citing an order by
Durkan, disallowing him from broadcasting. The police eventually
tweeted back, “We are not limiting [Converge Media’s/Salisbury’s]
ability to broadcast. This was a misunderstanding…”.
SPD’s public relations department could see Salisbury’s footage
showing what their officers did, but when given the choice to
accept responsibility or lie … they chose to lie.67
63

https://www.youtube.com/watch?v=6Jl8lFZNkz8 (discussion of moving the journalists
out begins at 6:30).
64
https://www.youtube.com/watch?v=6Jl8lFZNkz8 (discussion of SPD telling him to
move begins at 8:04).
65
https://twitter.com/Omarisal/status/1278412776403202049
66
https://twitter.com/Omarisal/status/1278371101261697029 (video, two of the
discussions with police happens at 17:00, where Salisbury is walked out of the park by an
officer and told to return to his office, and then again at 1:02:48 in the video, the SPD
officer says that media is not allowed to move around in the CHOP without being invited
and accompanied by the SPD, “by order of the mayor”).
67
https://www.realchangenews.org/2020/07/08/deceit-conceit-and-mercy-durkan-s-seattle

43

 Even worse, on the same date, a UK reporter was actually arrested
and jailed, seemingly for just being present in the CHOP. Andrew
Buncombe showed his State Department-issued press credentials, but was
nonetheless arrested and jailed.68 He was held in the King County Jail, in
conditions that he reported were unsanitary, inhumane, and unsafe.69
This information from the dismantling of the CHOP could not be
before the judge at the time of the charges being filed, because such acts
had not yet occurred, but it was first noted July 2, the morning of oral
argument, CP 291-96, and then expanded upon with details when
Petitioners filed their response to the Mayor’s Motion to Reconsider, CP
625-27. Thus it is properly preserved to argue before this Court.
When the SPD officer explained to at least two reporters that
media was not allowed in the CHOP, and another reporter apparently was
arrested because he disobeyed that order, those two facts alone justify the
reinstatement of this charge. But in addition to these, there was coverage
of the assaults on the media,70 and two of the affidavits filed regarding the
police violence on July 25th were from members of the media who were
attacked by the police. CP 735-37, 750-53.

68

https://www.kuow.org/stories/british-journalist-arrested-at-the-chop-protest-tells-his-sto
ry
69
https://www.independent.co.uk/news/world/americas/journalist-arrest-seattle-chaz-prote
st-police-prison-black-lives-matter-a9606846.html
70
See also Charles Woodman, Seattle Considers Resolution To Protect Media, Medics At
Protests, Patch.com, Aug. 16, 2020,
https://patch.com/washington/seattle/seattle-considers-resolution-protect-media-medics-p
rotests

44

 Mayor Durkan must have had notice of the problem of attacks on
the media at some point in this process prior to the final ruling, so this
charge should be reinstated as regards the SPD treatment of the press.
2.

The Seattle Police Department violated SCM

14.090-POL-10(b) regulations regarding the provision of medical care in a
crowd management setting, and violated international norms of conduct
when they targeted volunteer medics, blocked medical care, and destroyed
aid stations and medical supplies. SPM 14.090-POL-10(b) directly
addresses the duty of police officers to provide medical care to victims of
crowd control techniques and so-called less-lethal weapons:
Officers will request medical response or assistance for
subjects exposed to OC when they complain of continued
effects after having been decontaminated, or they indicate
that they have a pre-existing medical condition (e.g. asthma,
emphysema, bronchitis, heart ailment, etc) that may be
aggravated by OC.
Officers will request medical response or assistance for
subjects who appear to have been injured by a blast ball or
who complain of pain or injury from having been struck by a
blast ball.71
As this situation has unfolded, SPD officers have inflicted hundreds of
injuries on the public, including near-lethal injuries.72 There is no
evidence they have ever provided medical care.
Indeed, at times, the injured were blocked from entering aid
stations by SPD, and medical aid stations or supplies were wrecked by
71

Notably, as the CPC wrote in a memo to the Mayor and the Chief, there are no policies
on CS gas; the SPD has no training on the gas and no policies for it.
72
‘It’s pretty traumatizing’: Protester hit by SPD flash bang says she nearly died, Komo
News, Jun 9, 2020,
komonews.com/news/local/protester-injured-by-exploding-flash-bang-shares-her-story.

45

 officers.73 In addition, SPD continued to detonate devices around medics
attempting to aid the injured.74 Should these acts have been committed in
a military setting, they could easily be classified as war crimes.75
Moreover, after the violence of July 25th, a nurse acting as a medic
explained in her declaration how she was assaulted and threatened with
assault while trying to help patients, while wearing her nurse’s scrubs. CP
223-247. Finally, this issue was also covered in the local media.76
Mayor Durkan nonetheless did nothing to protect street medics or
assist them in their role, despite being warned of the attacks on medics by
both the Statement of Charges in this case and later-filed documents. The
interference caused by police between protesters and their medical care
likely contributed to the death of Lorenzo Anderson in the CHOP on June
20, 2020.
Before June 20, street medics had reached out to the Seattle Fire
Department to make sure they had coordinated plans for emergency

73

T, @t_shortstack, Jun 6, 2020,
twitter.com/t_shortstack/status/1269463231090888704?s=2; WorriedPotato,
@velaharigaming, Jun 7, 2020,
twitter.com/velaharigaming/status/1269685373816332289; Folks, I need your help,
Reddit, Jun 8, 2020, reddit.com/r/Seattle/comments/gywxhz/folks_i_need_your_help/.
74
Id. See also https://youtu.be/qjkbPbEPfPc (video of attack where protester shot by
SPD projectile); https://www.youtube.com/watch?v=yQUsbmAzLrs (also video of
protester being shot by SPD projectile, different view, relevant portion of video starts at
1:48)
75
Rule 25. Medical Personnel, International Humanitarian Law (“IHL”) Database,
reviewed Jun 12, 2020, ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule25; The
Guardian view on targeting medics in wartimes: protect those who serve, The Guardian,
Sep 29, 2016,
theguardian.com/commentisfree/2016/sep/29/the-guardian-view-on-targeting-medics-inwartime-protect-those-who-serve
76
Lilly Fowler, Medics say police have targeted them at Seattle protests, Crosscut, June
18, 2020,
https://crosscut.com/2020/06/medics-say-police-have-targeted-them-seattle-protests

46

 evacuation when it might be needed.77 But SFD declined to follow the
plan in the case of Lorenzo Anderson. The medics in the CHOP believed
SFD were on the way, as seen by the video, but SFD declined to move into
the CHOP without an okay from SPD. This despite a medic sprinting to
Station 25 and begging on her hands and knees for the SFD to go to the
injured young man.78 and a different protester approaching an SFD aid car
and similarly begging the car to respond.79 The street medics eventually
transported Anderson themselves,80 but he had lost too much blood and
died soon afterward at Harborview Hospital.81
SPD arrived much later than expected, demanding to be allowed to
get to the victim, who had already left minutes before.82 SPD claimed
later that they could not enter the area because of a hostile crowd, but
body cam footage made it obvious that this was a lie from SPD.83

77

https://www.youtube.com/watch?time_continue=394&v=3LZMjbtzXTQ&feature=emb
_logo (Discussion with a street medic who has been at the protests continuously specific discussion of the red zone/green zone rendezvous points arranged between street
medics and SFD to make sure they had coordinated plans to take out severely injured
persons, starts at 1:19. This medic was among those who treated Lorenzo Anderson).
78
https://www.youtube.com/watch?time_continue=394&v=3LZMjbtzXTQ&feature=emb
_logo (story told at 21:20)
79
https://twitter.com/spekulation/status/1274574573426507776 (video of protester
begging SFD aid team to go to the aid of Anderson)
80
https://www.youtube.com/watch?v=-m-WUbXrdR0&feature=youtu.be&t=356
(livestreamed footage of medics and protesters arguing about whether to move Anderson
themselves).
81
Ashley Hiruko, “Seattle police claimed protesters blocked way to dying man. In fact,
miscommunication with Seattle Fire was problem,” KUOW (July 26, 2020)
https://www.kuow.org/stories/seattle-police-and-fire-confusion-slowed-response-to-chopshooting-not-protesters
82
https://www.youtube.com/watch?v=n4Nui661FPA (report by KING 5)
83
https://twitter.com/spekulation/status/1275130917187547136?ref_src=twsrc%5Etfw%7
Ctwcamp%5Etweetembed%7Ctwterm%5E1275130917187547136%7Ctwgr%5E&ref_ur
l=https%3A%2F%2Fthreadreaderapp.com%2Fthread%2F1275659022365057025.html
(local activist Matt Spek Watson created a very helpful annotated version of some of the
bodycam footage released by SPD).

47

 SFD is required to follow its orders, and they later told protesters
they could not respond without SPD’s clearance. But SPD delayed
response and then blatantly lied about the circumstances of that delay.
Given that Mayor Durkan knew that the CHOP was staffed by volunteer
street medics, and had been informed that they had been attacked on a
number of occasions by SPD, the question was not whether a tragedy
would occur, but when. And in this case, all SPD had to do to kill yet
another young black man was to just not bother to show up as quickly as
they could, and then lie about it to blame the protesters.
In part because Mayor Durkan had sufficient notice about the
situation and did nothing to make sure the medics would have backup
from the City’s regular EMS responders, a young man died on June 20.
This matter was raised before the Superior Court during the Motion for
Reconsideration, because of briefing filed on July 21, so this issue has
been fully preserved to argue to this Court. CP 596-630. Because Mayor
Durkan would have had knowledge of this behavior, and nonetheless took
no action to prevent tragedy, Charge C should go forward to the voters as
regards the street medics.
3.

The Seattle Police Department disregarded SPM

8.100-POL-1 regulations regarding the use of de-escalation techniques.
SPM 8.100-POL-1 addresses the duty of police officers to use
de-escalation techniques: “When Safe, Feasible, and Without
Compromising Law Enforcement Priorities, Officers Shall Use
48

 De-Escalation Tactics in Order to Reduce the Need for Force.” The joint
OIG, CPC, and OPA report of June 5 expressly discussed
recommendations for deescalation from those agencies:
Wherever possible, the use of dialogue and
communication should always precede the use of force.
Police commanders must be trained in dialogue and
engagement and should use these tactics before any
decisions are made to resort to the use of force.
CP 201.
SPD, simply speaking, has not tried to deescalate, pretty much
since these protests began. Given that the mayor has had plenty of notice
that the SPD initiates and escalated violent encounters with protesters, this
charge should be reinstated.
Interestingly, Mayor Durkan seems to argue that this case is all
about enforcing the new City Council ordinance, which hadn’t even
passed when these charges were filed. See AOB at 29, 31. She argues that
if she had enforced the ordinance, in light of the federal consent decree,
then she would be reasonably facing impeachment, because she would
--have (supposedly) violated the law. AOB at 31.
Petitioners have explained that Mayor Durkan had any number of
options here to stop the violence, she just chose not to do any of them.
But Petitioners will focus briefly on one counter-example: the TRO was
signed by Judge Jones on June 12, shortly before the recall charges were
filed. If Mayor Durkan had just enforced the TRO, which she concedes

49

 was lawful, and had prevented SPD from using these weapons except for
life safety situations, we wouldn’t be here seeking her recall today.
Petitioners have never asked or wanted Mayor Durkan to violate
any laws. All we have wanted is for her to perform her duty, and protect
the public by enforcing them.
V.

CONCLUSION

Respondents and Cross-Appellants request this Court reject the
Mayor’s argument that Charge B is insufficient and instead expand the
charge with language from the incorrectly-dismissed Charge E to include
the protection of bystanders. This Court should also restore Charge C, as
the assaults on medics and the press began early and have continued
without much interruption, as has their failure to deescalate, and the
Mayor has had ample time to learn of them both via the press and social
media. Such assaults violate both the law and international standards of
decency, and they should have been sustained as a valid charge against the
Mayor.
DATED this 14th day of September, 2020.

________________________________
By Elliott Grace Harvey

50

 IN THE SUPREME COURT OF THE STATE OF WASHINGTON

IN RE THE MATTER OF

NO. 98897-8

RECALL CHARGES AGAINST

DECLARATION OF SERVICE OF

CITY OF SEATTLE MAYOR

RESPONSE BRIEF AND

JENNY DURKAN (HARVEY)

OPENING BRIEF OF CROSSAPPELLANT

I, Elliott Grace Harvey, declare under penalty of perjury of the laws
of the State of Washington that this 14th day of September, 2020, I caused
the attached true and correct copy of the Response Brief and Opening Brief
of Cross-Appellant to Washington Supreme Court to be filed with the Clerk
of the Washington State Supreme Court and served on any registered parties
via the Washington State Appellate Courts’ Portal, including: Janine Joly,
Jennifer Atchison, G. William Shaw, and Ryan Groshong. The same
document was served via email, on this 14th day of September, 2020, to
Janine Joly, Jennifer Atchison, Rebecca Roe, Matthew Clark, G. William
Shaw, Ryan Groshong, Alan L. Meekins, Jr., Courtney Scott, Leah
Solomon, Charlie Stone, and Matthew Cromwell.
DATED this 14th day of September, 2020.

________________________________
By Elliott Grace Harvey

 ELLIOTT HARVEY - FILING PRO SE
September 14, 2020 - 4:08 PM
Transmittal Information
Filed with Court:
Appellate Court Case Number:
Appellate Court Case Title:

Supreme Court
98897-8
In Re the Matter of the Recall Charges Against City of Seattle Mayor, Jenny
Durkan

The following documents have been uploaded:

• 988978_Briefs_20200914160752SC665627_4276.pdf
This File Contains:
Briefs - Respondents/Cross Appellants
The Original File Name was Response Brief Opening Brief of Cross Appellant SC.pdf
A copy of the uploaded files will be sent to:

• bill.shaw@KLGates.com
• charliehorsepower26@gmail.com
• courtneykscott@me.com
• janine.joly@kingcounty.gov
• jennifer.atchison@kingcounty.gov
• matt.clark@klgates.com
• nullagent@gmail.com
• paoappellateunitmail@kingcounty.gov
• roe@sgb-law.com
• ryan.groshong@klgates.com
• sabrina.mitchell@klgates.com
• solomon.lm@gmail.com
Comments:
Sender Name: Elliott Harvey - Email: elliottgraceharvey@gmail.com
Address:
1505 11th AVE Apt 203
Seattle, WA, 98122
Phone: (206) 734-1262
Note: The Filing Id is 20200914160752SC665627