On June 9, 2020, Black Lives Matter Seattle-King County brought this lawsuit against the City of Seattle in the U.S. District Court for the Western District of Washington. The complaint arose out of the protests that swept the nation following the killing of George Floyd in Minneapolis. Plaintiffs alleged that the Seattle police violated the First and Fourth Amendment and brought this suit under 42 U.S.C. § 1983. The First Amendment claim alleged that the Seattle police unlawfully infringed on their right to free assembly. The Fourth Amendment allegation claimed that the SPD used excessive force in the absence of an immediate safety threat. Plaintiffs sought a temporary restraining order, a preliminary, and a permanent injunction prohibiting the SPD from using "less-lethal" weapons or suppressing protests. They also sought declaratory relief and monetary compensation to cover the costs of the suit and attorney's fees.

Three days later, Judge Richard A. Jones partially granted a temporary restraining order against the Seattle Police Department, enjoining them from using projectiles and chemical irritants against peaceful protesters. 466 F.Supp.3d 1206. Five days after that, on June 17, the court reaffirmed the TRO after a hearing at which parties voluntarily stipulated to the terms of the new order. The new order was substantively similar to the previous one, and was set to last until September 30, 2020.

By July 30, the plaintiffs submitted a motion for an order to show cause as to why the defendant should not be held in contempt for violating the preliminary injunction. The plaintiffs claimed that the SPD violated this injunction by targeting protesters, journalists, legal observers, and even medics after the preliminary injunction was issued forbidding such conduct.

On August 10, the parties jointly filed a stipulation and proposed order to clarify the preliminary injunction after a ruling in another case, United States v. City Seattle. Earlier in June, the Seattle City Council had passed an ordinance to ban the crowd control irritants at issue in this case, but then Judge James Robart granted an emergency motion by the Department of Justice to enjoin the ordinance until it could be reviewed under the terms of the consent decree in United States v. City Seattle. In granting the DOJ's motion, Judge Robart noted that the preliminary injunction in this case (Black Lives Matter Seattle-King County v. City of Seattle) remained in effect.

The court granted the stipulated clarification of the preliminary injunction. Under the clarified preliminary injunction, the SPD was enjoined from: (1) using chemical irritants or projectiles to re-route a protest unless necessary to prevent the specific imminent threat of physical harm or to respond to specific acts of violence or destruction of property; (2) using chemical irritants or projectiles without, when feasible, first warning that attendees and allowing time, space and the opportunity to leave; (3) targeting with chemical irritants or projectiles any individual clearly indicating they are a journalist, legal observer, and medics at such times that they are acting lawfully and in a capacity that the City knows or reasonably should know of their status. Incidental exposure to these individuals was permissible. The clarified preliminary injunction expanded but did not supersede the June 17 preliminary injunction. The parties further agreed to stay all proceedings in the case, including discovery, pending the court's decision in United States v. City Seattle on the Seattle City Council's ordinance's validity and effect. The preliminary injunction was to remain in effect for 90 days after the stay in the case was listed. Lastly, the plaintiffs' motion for an order to show cause was dismissed without prejudice.

Once again though, on September 30, the plaintiffs filed a motion for an order to show cause as to why the defendant should not be held in contempt for violating the clarified preliminary injunction. The plaintiffs focused on protests that occurred on four dates: August 26, September 7, September 22, and September 23. They alleged that on these dates the defendant used less-lethal weapons in a violative manner. In particular, they argued that SPD repeatedly launched explosives into crowds of protesters, used pepper spray excessively and indiscriminately, and used less-lethal weapons to re-route protests and without ordering to or giving time to disperse.

In response, the defendant argued that they had complied with each of the court's orders including the clarified preliminary injunction. They argued that both the June 17 order and the August 10 clarified preliminary injunction were emailed to officers and each briefing before shifts in which officers are expected to provide crowd control included a reminder about the orders. In addition, the defendant disputed that the use of less-lethal weapons and pepper spray were used in violation of the orders. Instead, they argued that they were used to protect the safety of officers and others and prevent property destruction. In a supplemental response filed on November 2, the defendant further argued that the Monell standard of liability applied in determining whether or not the action of an individual officer could constitute the City's failure to comply with the preliminary injunction. Because the plaintiffs did not demonstrate an alleged unconstitutional action was proximately caused by an unconstitutional custom or policy, the result of deliberate indifference to a known need to train, or ratified by the City, the defendant argued that municipal liability under Monell was not established.

After a hearing on the motion, the court granted the plaintiffs' contempt motion in part on December 7, 2020. --- F.Supp.3d ----; 2020 WL 7181064. The court first rejected the defendant's argument that Monell applied in civil contempt analysis. Each stipulated preliminary injunction enjoined the Seattle Police Department and any other officers, and accordingly, violations by individuals were violations of the injunctions. It then proceeded to find one incident where the defendant's use of OC spray violated the preliminary injunctions when an officer sprayed retreating protestors and three incidents where the use of blast balls violated the preliminary injunctions when officers threw blast balls indiscriminately into crowds. The court found other uses of OC spray and blast balls during the protest compliant with the injunctions or too close to call. In addition, the court held that the defendant's use of pepper balls and paintballs complied with the preliminary injunctions. Lastly, the court directed the plaintiffs to submit a brief and proposed order for sanctions.

Shortly after, the plaintiffs filed a motion for sanctions and attorneys' fees and costs. The plaintiffs did not request monetary sanctions but rather requested that the City be required to submit an officer's use of force report and body camera video to plaintiffs each time the defendant uses a less-lethal weapon covered by the preliminary injunctions. They also asked that the City be required to instruct all officers on the specific instances of contempt found by the court.

The City responded by filing a motion for reconsideration on the contempt motion and to supplement the record on the contempt motion on December 21. The defendant again argued that Monell applied. In addition, they argued that evidence of more than four violations was needed to show that the City was not in substantial compliance with the preliminary injunctions. The City further argued that these four incidents were not in violation of the preliminary injunctions.

The case is ongoing as of January 4, 2021, and the plaintiffs' motion for sanctions and attorneys' fees and costs and the defendant's motion for reconsideration remain pending.

Jack Hibbard - 08/06/2020
Emily Kempa - 01/04/2021


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