FILED
SUPREME COURT
STATE OF WASHINGTON
NO. 98897-8
9/22/2020 1:25 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

REPLY BRIEF OF CROSS-APPELLANT

PETITIONER ELLIOTT GRACE HARVEY

 TABLE OF CONTENTS
I. INTRODUCTION ..................................................................................1
II. ARGUMENT.........................................................................................3

III.

A.

The authority of the Mayor over the police as outlined
the City Charter – both the authority over the Police
Chief and over the force itself in the event of
emergency—must have meaning ......................................3

B.

The duties of the Mayor under the City Charter, to
enforce the law and keep the peace and order of the
City, must also have meaning ...........................................7

C.

The SPD repeatedly violated the federal TRO. If the
Mayor had prevented or stopped such violation, there
would not continue to be significant basis for recall.....10

D.

The Mayor claims to not understand the constitutional
questions raised when residents are forced to breathe
harmful gases in their homes, or indeed, when
protesters are gassed in the streets for the content of
their speech .......................................................................12

E.

The Mayor’s novel legal argument that this recall
requires a showing of the Mayor’s intent is not
supportable, but the Mayor’s intent is shown
nonetheless, insofar as is necessary for the recall .........13

F.

The constitutional right of recall is intended to allow
ordinary citizens to assert improper conduct by their
elected officials .................................................................17

G.

In addition to all the above reasons, Charge E simply
wasn’t duplicative as held by the Superior Court ........21

H.

This Court need understand that the constitutional
rights of protesters and residents alike are still in play,
every day, in Seattle .........................................................21

CONCLUSION ...........................................................................24

1

 TABLE OF AUTHORITIES
Constitutional Provisions
United States Constitution, Amend. 4........................................................13
Washington Constitution, art. 1, § 7 ..........................................................13
Washington Constitution, art. I, § 33 .........................................................18
Washington Constitution, art. I, § 34 .........................................................18
Cases
In re Recall Charges Against Davis
164 Wn.2d 361, 193 P.3d 98 (2008) ..................................... 22 n.15
In re Recall of Inslee
194 Wn.2d 563, 573, 451 P.2d 305 (2019) ..................................... 5
In re Recall of Kast
144 Wn.2d 807, 31 P.3d 677 (2001) ............................................. 10
In re Recall of Pearsall-Stipek
141 Wn.2d 756, 10 P.3d 1034 (2000) ..............................18, 22 n.13
In re Recall of Pepper
189 Wn.2d 546, 403 P.3d 839 (2017) ....................................22 n.14
In re Recall of Washam
171 Wn.2d 503, 257 P.3d 513 (2011) ............................................18
In re Recall of West
155 Wn.2d 659, 121 P.3d 1190 (2005) ..........................................18
Pederson v. Moser
99 Wn.2d 456, 462, 662 P.2d 866 (1983) ......................................18
Rivard v. State
168 Wn.2d 775, 783, 231 P.3d 186 (2010) ...............................6, n.1
State v. Dennis
191 Wn.2d 169, 421 P.3d 944 (2018) ...................................... 6, n.1
2

 Statutes
RCW 29A.56.110.......................................................................................14
RCW 29A.56.140.......................................................................................10
Other Authorities
Seattle City Charter, Art. V, §2............................................................3, 4, 7
Seattle City Charter, Art. VI, §2 ..................................................................4
Seattle City Charter, Art. VI, §4 ..............................................................3, 4

3

 I.

INTRODUCTION

Nearing the end of a lengthy recall case, the Petitioners’ question
of the Court remains uncomplicated: Are elected officials permitted to
protect the commission of crimes of those under their employ by simply
turning a blind eye? In the case of Mayor Durkan, is she afforded
protection from the consequences of her inaction, when the people of her
City are forced to quietly bear those consequences—harm on their bodies
and violation of their civil rights—at the hands of the Mayor’s Police
Department?
Petitioners assert that this case, this severe neglect of duty, is the
quintessential circumstance for which recall was written into our
Constitution. Recall is not an erosion of our democratic process, it is not
going against the will of the voters, it is exactly the will of the voters—
nothing more and nothing less. Recall is built into the foundations of our
electoral process in the State of Washington and is an egalitarian right
afforded to voters when they most need accountability. It is the
opportunity Washington voters have at any time to make a strong, specific
statement to their elected officials: “We assert our right to vote for—or
against— your removal from office when you violate your oath or neglect
your duty.”
Unsurprisingly, the Mayor’s argument of their own appeal of
Charge B and their opposition of Petitioners’ cross-appeal of Charge E,
run exactly in tandem. Indeed, these perfectly parallel arguments are:

1

 ● The rules and duty outlined in the Seattle City Charter for mayoral
oversight of the Seattle Police Department do not apply to this
Mayor.
● The clearly defined role and duties of mayor for the City of Seattle,
as outlined in the Seattle City Charter, are purely decorative and
nonbinding.
● Protection against violent misconduct by city employees is
reserved for individuals with the means to file a civil suit.
● This Court should overlook the Seattle Police Department’s
repeated violations of the federal TRO prohibiting the use of CS
gas (“tear gas”) and OC gas (“pepper spray” or “pepper bombs”)
except for cases involving life and safety, because the Mayor did
not explicitly direct them to violate the law, but only permitted it.
● This Court should disregard the provisions for recalls based on
“misfeasance” or “violation of one’s oath of office” and instead
require “intent,” even where a recall case is not based on the
official’s violation of the law.
● Constitutional rights of residents in the City of Seattle are not
implicated when these residents suffer physical harm or are evicted
from their homes by the Seattle Police Department’s indiscriminate
use of CS or OC gas.

2

 ● And finally, the Constitutionally-protected right of recall has no
meaning, if your allegation is that an elected official stood back
and allowed someone else to violate the law, even when:
o Civil rights were violated over weeks or months, with
continued and pointed requests for relief;
o The elected official alone had the right to fire the employee
supervising the violation of your rights, and could have
taken over control from that supervisor if they chose; and
o The official’s fundamental duties, assigned by law, directly
conflict with the actions of those violating your rights.
Contrary to these, Petitioners believe this Court will find the City
Charter, the recall statutes and indeed, the constitutional right of recall
itself, are not meaningless. We will address each of these in turn.
II.
A.

ARGUMENT

The authority of the Mayor over the police as outlined
in the City Charter—both the authority over the Police
Chief and over the SPD itself in the event of
emergency—must have meaning.

The Mayor acknowledges at least one proclaimed emergency was
in effect at all relevant times, often two. Appellant’s Opening Brief
(“AOB”) at 2, 3. Moreover, the Mayor agrees that under the City Charter,
she could have either taken charge of the SPD per its emergency
provisions, ordered the Police Chief to take further action, or dismissed
the Police Chief. AOB at 27-28, Mayor’s Reply/Response Brief (“MRB”)
at 2-3, citing Seattle City Charter, Art. V, §2 and Art. VI, §4. Appellant’s
3

 only defense is her assertion that she had unfettered discretion when she
consistently declined to intervene. MRB at 2-7.
Petitioners have acknowledged that the Appellant had, for a limited
period of time, some discretion in this matter. Indeed, the Superior Court
found exactly this when it specified the timeframe of Charge B to cover
the time after the Mayor had an opportunity to learn more about CS and
OC gas and their specific dangers during the pandemic. CP 300-01, 303,
791-92 (Superior Court Orders).
Petitioner’s argument has been consistent. After it became clear
that the SPD was routinely violating the rights of protesters and the rights
of those simply residing in Seattle, and after it became abundantly clear
that the use of chemical gasses during a respiratory pandemic was
unreasonably dangerous, it became incumbent for the Mayor to use her
power to intervene. This is not, as Appellant argues, a mere “political
dispute,” but a real-world application of dangerous and violent police
tactics and clear harm to the bodies and minds of the people the Mayor
was elected to serve.
If it is true that there is no point at which it becomes an abuse of
the Mayor’s discretion to allow the police under her employ to do
whatever they please, then her leadership and power over the SPD—over
the Chief of Police at all times under Article V, §2, and Article VI, §§2
and 4; and over the officers themselves at times of emergency under
Article V, §2—is meaningless in terms of whether she has fulfilled her

4

 duties. If the Mayor has the prerogative to allow the police to initiate their
own form of extrajudicial “justice,” and not face impeachment for it, then
residents of the Capitol Hill neighborhood and the City of Seattle have lost
far more than their right to a given recall election. They have lost the rule
of law itself.
The Mayor suggests In re Recall of Inslee, 194 Wn.2d 563, 573,
451 P.2d 305 (2019), is on point here. In Inslee, the governor declined to
declare a state of emergency regarding homelessness, and this Court found
this a reasonable use of discretion. Id.
Inslee is instructive, but not truly on point. Suppose, in Inslee, the
governor had failed to declare a state of emergency in a time of grave fire
danger, when conditions were extremely dry and multiple wildfires were
ravaging the state. See Governor’s Proclamation 20-68. Or, indeed, if a
historic, global pandemic struck the state, being first discovered in one
case in the state on January 11th, and having spread to 85,688 confirmed
cases in a little over a month. See Governor’s Proclamation 20-5 (first
COVID-19 emergency proclamation).
Would it ever be an abuse of discretion for the Governor to refuse
to issue a valid proclamation for what was clearly a major emergency?
Here, of course, emergencies were already proclaimed, so that
specific determination was not at issue. Instead, the Mayor chose not to
intervene when faced with complaint after complaint that the police were

5

 acting recklessly and lawlessly, a far more pressing matter than whether or
not a particular emergency is officially declared.
The Seattle police—in a position of great trust and power—
committed assaults against both residents sheltering inside their homes
and peaceful protestors exercising their First Amendment rights. By
releasing gas and then also by attacking medics and press, the SPD
committed acts against the residents of Seattle that would constitute war
crimes, were we at war. Put another way, were the ground of Seattle a
designated international war zone, the residents therein would be afforded
better protections.
The Mayor—the only elected official with power over the SPD—
declined to intervene, despite many individuals and groups begging her to
do so. This was an abuse of discretion. If it can be seen as within her
discretion to not take control despite such extreme circumstances, then her
power over the police, as delineated by the City Charter, lacks any
meaning whatsoever.
We reject that outcome as fundamentally opposed to the
constitution and the rule of law, opposed even to those lesser rules
governing the statutory interpretation of written law.1 We assume this
Court will reject it as well.

1

This Court has repeatedly found that one of the rules of statutory interpretation is that it
will “render no portion [of the law] meaningless or superfluous.” State v. Dennis, 191
Wn.2d 169, 421 P.3d 944 (2018), quoting Rivard v. State, 168 Wn.2d 775, 783, 231 P.3d
186 (2010). Here, the rules of statutory construction require that all parts of the Seattle
City Charter must be interpreted so as to have meaning.

6

 B.

The duties of the Mayor under the City Charter, to
enforce the law and keep the peace, should have
meaning.

Article V, §2, of the Seattle City Charter delineates the “Power and
Duties of [the] Mayor.” The first sentence reads:
The Mayor shall see that the laws in the City are enforced, and
shall direct and control all subordinate officers of the City, except
in so far as such enforcement, direction and control is by this
Charter reposed in some other officer or board, and shall maintain
peace and order in the City. (Emphases added.)
These are, at their heart, the very purposes of an executive branch
of government. They are, without exaggeration, the reason why Seattle
(or any municipality) has a mayor. But Mayor Durkan suggests that if
these are the grounds upon which a mayor can be recalled, it will break
our system of government:
Seattle’s mayor could be subject to perpetual recall, regardless of
the officeholder…There is no basis for a violation of a provision as
general as the duty to “maintain peace and order” to be the basis of
a recall petition.
MRB at 6. The Mayor suggests that such an allegation is the equivalent of
requiring her to “personally prevent any allegation of excessive force
against a police officer.” Id.
The Mayor and the City Attorney’s office have frequently called
the protests “unprecedented.” CP 122, 223, 242. In their opening brief,
the Mayor calls this “the most widespread civil unrest Seattle has seen in
decades.” AOB at 1. Indeed, the fact of multiple emergency
proclamations being in effect indicates this was an unusual, if not unique,

7

 context. CP 45-52 (Proclamations re: COVID-19); CP 146-49
(Proclamation re: Protests).
Conversely, the Mayor now suggests that recent SPD action
against protestors is somehow commonplace—that a recall based on
SPD’s video-documented, wide-scale mistreatment of residents over the
past 3.5 months would somehow subject her to individual liability for SPD
officers’ every illegal action. MRP at 5-6. Or more specifically as regards
this reply, she implies that their release of vast clouds of noxious gas on
the city’s residential streets, without just cause, is something that would
subject the Mayor of Seattle to “perpetual recall.” MRP at 6.
This is a petition for recall, not a criminal, or indeed, a civil trial.
The behavior of the police here has been widespread, terrifying, and
vicious, and has made it actively dangerous to be a protester in Seattle, or
indeed, to simply live in the vicinity of where First Amendment activity
occurs. The Office of Police Accountability (“OPA”), reports they have
received some 19,000 calls about police misconduct since May 30.2
There must be a point at which the Mayor has to act, and act
decisively. There must be a point at which her responsibility to “peace
and order,” to the enforcement of the law, and most ethically, to the safety
of the people of Seattle becomes preeminent. If there is no point at which

2

https://www.seattle.gov/opa/case-data/demonstration-complaint-dashboard. Per the
same website, these 19,000 calls have resulted in 118 cases. As of this writing, OPA has
made determinations on only six cases. Two have been sustained, and the other four
have been dismissed. Id.

8

 the unlawful conduct of City “peace officers” can cause the recall of the
executive of the city, then the Mayor’s fundamental, Charter duties of
“see[ing] that the laws in the City are enforced, and...maintain[ing] peace
and order in the City” are themselves without meaning.
Petitioners need not propose a bright-line rule for when the
lawlessness of a police force is sufficient for it to be the basis for a
supervising Mayor’s recall. Petitioners do, however, argue that after
weeks of tear gas and pepper spray choking residents and some 19,000
complaints, not to mention specific, repeated allegations of abuse, assault,
and injury inflicted on protesters, we are well past that point now.
The Mayor thus finds herself sitting comfortably within the realm
of “manifestly unreasonable.” She nevertheless claims a hypothetical
danger of this precedent, a risk of “chilling” the discretion of future
mayors. But the real and present danger in this case, however, is the deep
erosion of the constitutional rights of voters and residents.
If it is true that an elected official may freely permit the
commission of crimes from those employees under their oversight, and
that the voters no longer have any right to recall based on harm inflicted
by the hands of the Mayor’s subordinates, this case will surely empower
elected officials in this State to permit or even encourage any manner of
lawlessness without fear of either constraint or loss of power.
The Mayor airily reviews the suggested actions by Petitioners and
dismisses them all as insufficient. But as Petitioners noted in our prior

9

 brief, no portion of recall law requires Petitioners to propose exactly what
path the Mayor had to take (and indeed, the language approved by the
Superior Court does not say exactly what path the Mayor should have
taken). CP 300-01, 791-92.
Petitioners need only to state in their charges what the Mayor
wrongly did, or failed to do. And in this case, what the Mayor has done,
over and over, was nothing—specifically nothing designed or intended to
protect the residents of Seattle sheltering in their homes under her curfew
from the gas recklessly released by her own police department. Either at
some point this failure to act became an abuse of discretion, or the words
of the City Charter defining her very role are futile and meaningless.
C.

The SPD repeatedly violated the federal TRO. If the
Mayor had prevented or stopped such violation, there
would not continue to be significant basis for recall.

It is well-established that this Court does not weigh the evidence in
a recall case; that is for the voters of Seattle. RCW 29A.56.140; In re
Recall of Kast, 144 Wn.2d 807, 813, 31 P.3d 677 (2001). Moreover, the
federal TRO clearly prohibited the use of tear gas and pepper spray unless
“life safety” was at risk, and indeed, the Mayor does not argue differently.
MRB at 4. See also CP 81-82 (full order at CP 72-83).
The Mayor does not, in fact, even directly argue that the TRO was
not violated. See MRB at 4. Indeed, such an argument would be difficult
in view of the many witness statements and videos immediately available
showing SPD releasing gas in such clouds in residential streets, that the

10

 people inside buildings were affected, and in some cases, had to flee their
own homes during a curfew and a pandemic. See, e.g., CP 22,3 86
(testimony before Public Safety and Human Services Committee meeting),
89-90 (declaration by Petitioner Elliott Grace Harvey).
Instead, the Mayor asserts that because she ordered once, on July
1, 2020, that SPD’s use of force should be consistent with the TRO, that
she completed any duty required of her. MRB at 4, quoting Executive
Order 2020-08. The cited order is 5-pages, mostly single-spaced,
executed at 2am on July 1, the primary purpose of which was to close Cal
Anderson Park and evict the protesters later that morning. The item
pointed to by the Mayor is one sentence of the order, on page 4, item 4 in
a list of 16. MRB at 4, quoting Executive Order 2020-08.
If this is the measure by which the Mayor executes her duty of care
of her residents’ civil rights, it is difficult to not categorically find it
wanting. Executive Order 2020-08 was, moreover, an order about a
specific event, and it has no application to either the many days of
offenses that came before it (even counting from June 12, when the TRO
was issued, until July 1), or the many assaults that happened after,
including the violent weekend of July 25th. Id.

3

Citing Call to Action for Businesses and Residents Subjected to SPD Tear Gas During
the Capitol Hill Protests, Capitol Hill Seattle Blog, Jun 5, 2020,
https://www.capitolhillseattle.com/2020/06/capitol-hill-community-post-a-call-to-actionfor-businesses-and-residents-subjected-to-spd-tear-gas-during-the-capitol-hill-protests/.

11

 If the police violence had halted on June 12, the date of Judge
Jones’ TRO,4 then this recall might never have reached this point. Instead,
the violence continued and no one in the SPD was accountable for either
the assaults or the violations of residents’ constitutional rights. Indeed,
until Chief Carmen Best’s resignation— evidently issued because the City
Council reduced her pay—the Mayor described Chief Best in glowing
terms, thanking her repeatedly for her work, and rarely even alluding to
the allegations of atrocious police conduct, let alone addressing them.5
There were no consequences for the officers’ violence, so—as we
could easily predict—it did not stop, and it has not since. This all
happened under the Mayor’s supervision. This is her bailiwick, both as an
executive officer in general, and as the City Charter specifically indicates.
The recall charges are therefore fully supported by the facts and law.
D.

The Mayor claims to not understand the constitutional
questions raised when residents are forced to breathe
harmful gases in their homes, or indeed, when

4

CP 72-83 (Order).
See, for example,
https://www.youtube.com/watch?v=_rE4VMjClqI&feature=youtu.be&t=1126 (joint
press conference with Mayor Durkan and Chief Best on 6/11/20, where Mayor Durkan’s
thanking of Chief Best begins at 12:30, with her stating, “they have worked so hard to
adjust and improve every day, and they are guided by doing all they can for the
businesses and residents of Seattle”; then at 31:45, Mayor Durkan states unambiguously,
“I have confidence in the Chief…,” jokes about a “Thelma and Louise moment,” and
closes with her statement that the Chief and she will move forward together);
http://seattlechannel.org/mayor-and-council/mayor/city-of-seattle-mayorvideos/?videoid=x114620 (joint press conference with Mayor Durkan and Chief Best on
6/5/20, during which the Mayor asserted that Chief Best was “making continued
adjustments” to improve communication between officers and protesters and “formalize
more deescalation teams on both sides” starting at 3:30, and the Mayor expresses her
“continuing admiration and gratitude for the work that [Chief Best] is doing. She has led
this department through this unprecedented moment, with a level of grace, restraint, and
resolve that I think is unmatched....Seattle is really fortunate to have her leadership.”
starting at 10:38). Both these conferences were cited by the Mayor at CP 325.
5

12

 protesters are gassed in the streets for the content of
their speech.
The Mayor expresses bafflement that constitutional questions have
somehow been raised by this case. MRB 7-8. Perhaps the Mayor does not
understand or agree that individuals have the right to experience safety in
their own homes? Even so,
The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.
US Const., Amend. 4. And:
No person shall be disturbed in his private affairs, or his home
invaded, without authority of law.
Washington Constitution, Article 1, §7.
Petitioners are evidently expected to explain how these
foundational principles of life and liberty apply to the SPD’s releasing vast
clouds of noxious gas in such a way that the gas invaded someone’s home,
causing some residents to flee and others to suffer through dangerous,
painful fumes. CP 22, 86, 89-90. Petitioners have already described
additional dangers due to the pandemic, and have already detailed
occasions where police had no lawful cause to release such gas.
Petitioners sincerely believe the constitutional point has been made. We
also refer this court to such other rights as freedom of the press, freedom
of assembly, and the like, all of which were impaired by SPD’s violence
against residents, protesters, the press, and volunteer medics.
E.

The Mayor’s novel legal argument that this recall
requires a showing of the Mayor’s intent is not
13

 supportable, but the Mayor’s intent is shown
nonetheless, insofar as is necessary for the recall.
Petitioners have pointed out that the behavior of the Mayor—
whether by allowing police to gas protesters or bystanders—amounts at
minimum to misfeasance and violation of her oath of office, neither of
which require: (a) a law be violated by the Mayor or, indeed, (b) the
Mayor have intended to violate such law. RCW 29A.56.110.
The Mayor argues for the first time that all the reasons listed for
recall have an intent element. This matters little, as there is a great deal of
evidence that the Mayor was aware of the violations of residents’ and
protesters’ rights alike, and that she knowingly decided not to intervene.
Nonetheless, Petitioners have not claimed that the Mayor directly
violated the residents’ rights, but rather, that the Seattle Police did so, and
that the Mayor failed to intervene to protect the residents from such acts,
even after pleas to do so and repetitive violations.
It matters very little to those forced to flee their homes whether
their Mayor “intended” to evict them from their home by gassing them
during a pandemic, or if she simply closed her eyes to the results of her
inaction. Just as it matters very little to the peaceful, unthreatening
protester shot by a blast ball at close range—whose heart stopped three
times en route to the hospital—that the Mayor herself did not pull the
trigger.
Petitioners argue these are consequences severe enough that—
especially in the case of persistent violations—they must fall outside the
14

 necessity of “intent.” When the Mayor decided, day after day, to not take
control, to not stop the violence, to not implement any restraints when the
SPD violated residents’ rights over and over, she accepted the
ramifications, whether she intended any precise outcome or not. She had
ample evidence that serious consequences would continue to unfold after
they had already done so multiple times.
Even so, there is plenty of evidence that the Mayor was sufficiently
aware of the violations to the degree that she “intended” them within the
meaning of the recall statutes. She is a former US Attorney, who would
naturally be familiar with constitutional rights and the ways in which a
police force can violate them. She was doubtless made aware of the many
occasions where gas was released in residential neighborhoods, where
peaceful protesters were abused, and where individuals and groups called
for her assistance. See
- Petitioner’s Opening Brief of 9/14 (“POB”) at 2529. Yet the Mayor’s regular, public approval of Chief Best’s actions
indicated that she had few or no issues with how the police were behaving.
Thus, the Mayor neither did, nor attempted to do, anything that
might truly compel or convince the SPD to behave lawfully. Instead, she
seemed regularly to congratulate them for a job well-done.
The Mayor often claims Petitioners “conceded” she had no duty to
ban CS gas, a strained interpretation at best. Petitioners have stated
repeatedly that CS and OC gas were used in neighborhood streets, on
bystanders and protesters alike, without justification. If the Mayor had

15

 effectively banned CS and OC gas (a question not on the table except for
the Mayor herself putting it there), then yes, these Petitioners might not
have acted. But there were any number of steps the Mayor could have
taken short of a “ban” to solve the problem of Seattle Police violence,
including simply enforcing the federal TRO, perhaps by creating
consequences to its violation so that the police would discontinue their
persistent violation of it.
Similarly, the Mayor argues Petitioners “do not dispute that the
Consent Decree prevented [her] from unilaterally implementing new SPD
policies or procedures.” MRB at 9. Again, this is a forced reading.
Petitioners have pointed out that the Mayor is trying to use the letter of the
Consent Decree to violate its intent, which was to protect Seattle residents
from unconstitutional behavior by the SPD. See POB at 24.
The Mayor has argued throughout this case that the Consent
Decree somehow prevents her from imposing limitations on the SPD’s
prodigious armory (a troubling argument, since the Consent Decree has
never addressed or permitted tear gas, and yet the SPD somehow used it
repeatedly, early in this process). Petitioners disagree with this premise,
but this will doubtless be decided in federal court, not here. In the recall
case, the Consent Decree is not a critical issue, given the Mayor could
have used any number of other options to create consequences for the
police or to otherwise convince them to behave differently, including
simply enforcing the federal TRO that she acknowledges was valid.

16

 Mayor Durkan did nothing— knowingly so—to create any
consequences for violating the TRO and the rights of the residents of
Seattle. If anything, the manifest lack of consequences and regular public
approval of the actions of Chief Best and the SPD gave police a clear,
bright green light to continue their abuses. This was not, as the Mayor
claims, “balanc[ing] the rights of all parties,” MRB at 11. This was
instead writing off the constitutional rights of Seattle residents in favor of
the SPD’s apparent desire to commit violence and inspire terror.
The Mayor again takes a stab at claiming this is a political dispute,
based on purely policy decisions. But the “policies [Petitioners]
apparently prefer,” as the Mayor describes them, MRB at 11, include
people not being gassed in their homes because they failed to live in the
Mayor’s neighborhood, or indeed, not being gassed on the streets for their
political views. This seems much less a “political view” and much more a
“constitutional baseline.” The fact that the Mayor sees permitting such
police conduct as a “policy” largely makes Petitioners’ point for them.
Unlawful, repeated physical harm inflicted on City residents by City
employees cannot morally or legally be deemed a “policy disagreement.”
F.

The constitutional right of recall is intended to allow
ordinary citizens to assert improper conduct by their
elected officials.

The Mayor asserts, with no apparent sense of irony, that the
protesters (and presumably the affected residents as well) are protected
from violations of their constitutional rights, because they may file civil

17

 cases in federal court, a la the Black Lives Matter Seattle-King County
case currently in litigation in the Western District. MRB at 20.
Petitioners note that the venerable ACLU, Korematsu Center, and
Perkins Coie, a large Seattle law firm, have volunteered to litigate that
case pro bono. While the case has had significant success, with the TRO
being extended by agreement to September 30, no actual consequences
have been imposed on the SPD, and the violence and gassing have largely
continued since the TRO was entered on June 12. Not only are civil cases
thus shown to be unsuccessful in restraining SPD’s violence, they also
plainly require a prohibitive investment of time and funds.
The right to recall is a constitutionally protected one, for the
residents of the state of Washington—not just to its lawyers, or to
residents wealthy enough to afford them, but to everyone. Washington
Constitution, Art. I, §§33, 34. This is, perhaps, one of the reasons why,
when the recall statutes must be interpreted, such interpretations are made
in a Petitioner’s favor, 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). And why cases typically permit, if
not encourage, the lower courts to correct a charge, if something about it is
technically incorrect, rather than to dismiss such a charge altogether. See,
e.g., In re Recall of West, 155 Wn.2d 659, 121 P.3d 1190 (2005); In re
Recall of Washam, 171 Wn.2d 503, 257 P.3d 513 (2011).

18

 Voters should not be expected to rely on the generosity of a gratis
attorney or law firm when an elected official violates their duty, or, as in
this case, repeatedly allows a police department to violate residents’ rights.
Moreover, even such professional efforts have yet to bear fruit beyond an
un-enforced TRO, demonstrating another problem with civil suits—
sometimes mayors, not to mention police departments, ignore them.
The Mayor alternately suggests that the system of officer discipline
will protect the rights of the residents of Seattle. MRB at 1. But of 19,000
calls to OPA, 118 cases have been instigated, only 6 of which have been
adjudicated, and only 2 of which were sustained.6
Nearly 4 months into protests, and thus far, OPA has determined
that: 1) a police officer should not put their knee on an arrestee’s neck
during an arrest; and 2) when a political protester says, “Fuck, I hate
cops,” that same officer should not reply by saying, “Yeah you’re a bitch;”
nor should that same officer state that they will “fuck up” a particular
protester, even to another officer, 2020OPA-0324,7 and 3) a second police
officer should not publicly state, “I have a hard-on for this shit and, if they
cross the line, I will hit them,” 2020OPA-0348.8 Everything else, for all
intents and purposes, has been either unaddressed or dismissed.

6

OPA Complaint Dashboard at: https://www.seattle.gov/opa/case-data/demonstration-complaintdashboard
7
This case report is available from the dashboard, or directly at:
https://www.seattle.gov/Documents/Departments/OPA/ClosedCaseSummaries/2020OPA0324ccs08-21-20.pdf
8
This case report is available from the dashboard, or directly at:
https://www.seattle.gov/Documents/Departments/OPA/ClosedCaseSummaries/2020OPA
-0348ccs08-30-20.pdf

19

 Notably, the first case involved: a) an officer placing his knee on
one arrestee’s head and then placing his knee on a second arrestee’s neck a
few minutes later, and this only a few days after George Floyd’s murder,9
and b) that behavior being recorded on video by a bystander’s cell
phone,10 and c) that behavior being actively interrupted by another officer
who had to physically remove the first officer’s knee from the second
arrestee’s neck when the first officer did not respond to verbal feedback,11
still did not find a violation of the actual SPD Policy 8.300-POL-9 (which
used to make choke holds impermissible), because it assumed good faith
on the part of the officer.12
Despite the Mayor holding a position that putatively enforces the
laws in Seattle and maintains its “peace and order,” she created zero
consequences for Seattle police officers’ repeated violations of the law,
and indeed, seemed determined to obstruct any other entity from trying to
enforce any consequences. POB at 22-24. Seattle Police officers then
acted in accordance with this apparent protection and insulation.
The recall statute is the only way voters may create consequences
for the Mayor, and that is, perhaps, the only way for ordinary residents to
slow or stop a police officer’s violence against them. To say that there are

9

See 2020OPA-0324, at pages 1, 2-3.
Id. at page 3.
11
Id. at page 3.
12
Id. at page 4, 5.
10

20

 other ways to stop such violence is to engage in dismissive speculation,
and even so, the avenues the Mayor suggests have been tried, to no avail.
G.

In addition to all the above reasons, Charge E simply
wasn’t duplicative as held by the Superior Court.

The Superior Court held Charge E to be duplicative of Charge B,
when it facially was not. Charge B related to the treatment of protesters
who were attempting to exercise their rights to freedom of speech and to
assemble and petition for redress of grievances. Charge E related to
residents being assaulted by chemical weapons in their own homes when
the police released clouds of gas into residential streets. CP 15-16, 21-23.
This Court should find accordingly. If, as the Mayor argues, the wording
of the Charges truly takes precedence over whether or not a charge has
been wrongly dismissed, see MRB at 22, then the appropriate action is
clear: Charge E must be fully reinstated as a separate charge.
H.

This Court need understand that the constitutional
rights of protesters and residents alike are still in play,
every day, in Seattle.

The Mayor argues that some facts alleged by Petitioners should not
be considered by this Court. Petitioners will concede one thing, and one
thing only, that the specific facts of September 7th events are not properly
before this Court.
But justice demands that the Court understand that the trampling of
the rights of the people of Seattle did not discontinue on July 10th, when
the Superior Court first ruled. Or on July 25th, when the SPD attacked
many protesters, apparently enraged by the threatened “defunding” by the
21

 City Council. Or on July 29th, when the Superior Court ruled on the
Mayor’s Motion for Reconsideration. Or on August 12, when the Mayor
filed her appeal.
The rights of the people of Seattle are still being violated, and they
will evidently continue to be until someone blocks the Seattle Police from
violating them. Mayor Durkan has not done so herself, despite both pleas
and demands, nor has the implementation of a federal TRO succeeded.
Recalls have been filed and succeeded before this Court for such
activities as lying about one’s educational qualifications,13 failure to attend
council meetings,14 and wrongly offering severance to a public
employee.15 These cases involved consequences, certainly, but not
consequences with the scale and import of what is now before the Court.
Here we see the costs of a decade of police militarization coming home to
roost. Here we have a Mayor who, for whatever reason, chose to allow
repeated violence against the residents of her own city, instead of
controlling her overaggressive police force, despite plea after plea.
The Mayor also claims 13 footnotes contain previously uncited
articles or videos. Petitioners apologize if there was error within, most of
these citations are either used as background information and not for
argument, or are simply incorrect on the Mayor’s part. Here is a table
quickly addressing each footnote the Mayor cites to (MRB at 20):

13

In re Recall of Pearsall-Stipek, 141 Wn.2d 756, 772, 778, 10 P.3d 1034 (2000).
In re Recall of Pepper, 189 Wn.2d 546, 559, 403 P.3d 839 (2017).
15
In re Recall Charges Against Davis, 164 Wn.2d 361, 370-71, 193 P.3d 98 (2008).
14

22

 Citation Notes
p.5 n.2

Citations all present in the charging letter, CP 13-14, n.13-15.

p.7, n.6 The article is present in the charging letter, CP 16, n.30. The
YouTube links are new, but in relevant part, these videos were
also provided to the Superior Court on July 22 for the Motion for
Reconsideration, and were considered in that ruling. CP 635-36,
637 (videos labeled 2 and 3), CP 790. The full set of supplemental
videos given to the Superior Court is still located at the same
online location as it was below (see CP 639), at
https://drive.google.com/file/d/1yI2pxgVafwAw8R8Q7QltAv
6cDoEzY6Ns/view?usp=sharing
p.9 n.12 These articles are new, but this is just a side note that no one
knows who, if anyone, ordered the abandonment of the East
Precinct, a matter not known to be at issue in this case. No
argument is made herein on this topic.
p.9,
n.13

These articles are new, but are only given as rough background on
the CHOP/CHAZ and are not cited for any specific facts. If the
Court wishes to exclude them, they are only present for the
Court’s convenience and are not used in argument.

p.9,
n.14

These are all facts that were before the Superior Court below. This
article simply summarizes what happened on the date the CHOP
was cleared by the Mayor’s order. Its background may be useful to
this Court, but it is not cited in argument.

p.10,
n.15

This is an article cited only to indicate that a suit was filed by
Black Lives Matter Seattle-King County, et al. This suit was wellknown and reviewed by the Court below.

p.16,
n.31

This article admittedly was not cited in the Court below, because it
was not written until after the Superior Court ruled.

p.23,
n.37

The Mayor acknowledges her intent is a matter in contention in
this case. See AOB at 18-23; MRB at 10-12. The fact that the
Mayor has continued to shield the SPD, even after this petition for
recall has been filed and appealed, is legitimate to raise before this
Court as continuing evidence of such intent.

p.32,
n.58

Petitioners acknowledge the specific facts of September 7 are not
properly before this Court, but the fact that protesters and residents
are still having their rights violated on a regular basis should be
known by this Court to grasp the current, real-world implications
of the case and the dangers still faced by those below

P.34,
n.59

Intent is at issue in this case, as noted. The Mayor’s appointment
of an “Interim Chief,” and her decision to not seek a permanent
23

 Chief does, in fact, shield the appointment of such chief from
review by the City Council, as was doubtless intended. This
evidence of continued intent is probative on a matter at issue.
p.46,
n.74

The Twitter and Reddit citations were cited previously, including
in the charging letter. CP 17, n.34-36. The first video was cited in
the Response to the Motion for Reconsideration. CP 616, n.39.
The second video is new, but nearly identical to footage taken of
the same event and timely given to the Superior Court to be
considered on the Motion to Reconsider. CP 635-36, 638, 639.
https://drive.google.com/file/d/1yI2pxgVafwAw8R8Q7QltAv
6cDoEzY6Ns/view?usp=sharing (video of collapsed protester
getting dragged back by medics while SPD continues to fire gas
and projectiles at them starts at 20:44).

p.46,
n.76

This article contains mostly a summary of prior complaints by
medics, and was published on June 18, 2020. Petitioners believe
that media coverage legitimately goes to the Mayor’s knowledge,
and therefore intent regarding the treatment of medics, especially
given that it was released just prior to the disastrous death of
Lorenzo Anderson on June 20.

p.47,
n.81

This is a new article, though it only reviews the same allegations
covered by Petitioners in their briefing and declarations in the
Superior Court. In fact, because it suggests that the death of Mr.
Anderson was due to “miscommunication,” it is somewhat more
sympathetic to SPD than the video created by Matt “Spek”
Watson. That video was used in the Superior Court by Petitioners
to explain the timeline of June 20th (CP 628, n.82). If the Court
prefers to review the video, which came before the Superior Court,
and exclude the article, Petitioners have no objection and offer
sincere apologies.
https://twitter.com/spekulation/status/1275130917187547136
III.

CONCLUSION

At base, the Mayor labors to convince this Court that recall of an
elected official cannot be premised on permitting or neglecting to prevent
a subordinate from committing an illegal act or acts, even if 1) the elected
official always had authority over the immediate supervisor of the people
doing the illegal acts, and moreover could have chosen to temporarily be
the supervisor of the people committing the illegal acts; 2) the nature of
24

 the offenses committed and the people committing them directly conflicts
with the elected official’s most fundamental duties; 3) the illegal acts
happened repeatedly, and the elected official was repeatedly implored to
take action; and 4) the illegal acts involved the violation of constitutional
rights, and were violent and shocking. If, under all these circumstances,
the voters of Seattle cannot seek the Mayor’s recall, then the constitutional
rights of ordinary residents cannot be safe against the proven physical
violence of the Mayor’s Police Department, as no official responsible to
the voters holds any duty to prevent their violence and unlawfulness.
Petitioners ask this Court to reject the Mayor’s argument that
Charge B is insufficient and instead expand the charge to include the
protection of bystanders such as residents - a charge incorrectly dismissed
below as being “duplicative.” In the alternative, this Court should simply
restore Charge E. This Court should also restore Charge C, as the assaults
on medics and the press began early and have continued since, giving the
Mayor ample time to learn of them 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 once
she had time to learn of them, just as she had time to learn of the reckless
and inappropriate use of CS gas and OC gas in this case.
DATED this 22nd day of September, 2020.
________________________________
By Elliott Grace Harvey
25

 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

REPLY BRIEF OF CROSS-

JENNY DURKAN (HARVEY)

APPELLANT

I, Elliott Grace Harvey, declare under penalty of perjury of the laws
of the State of Washington that this 22nd 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 22nd 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 22nd day of September, 2020.

________________________________
By Elliott Grace Harvey

 ELLIOTT HARVEY - FILING PRO SE
September 22, 2020 - 1:25 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_Answer_Reply_20200922132314SC116361_0649.pdf
This File Contains:
Answer/Reply - Other
The Original File Name was Reply Brief of Cross-Appellant Harvey 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 20200922132314SC116361