Black Lives Matter Seattle-King Cnty. v. City of Seattle, Case No. 2:20-cv-00887-RAJ

466 F.Supp.3d 1206

BLACK LIVES MATTER SEATTLE-KING COUNTY, Abie Ekenezar, Sharon Sakamoto, Muraco Kyashna-Tocha, Alexander Woldeab, Nathalie Graham, and Alexandra Chen, Plaintiffs,

v.CITY OF SEATTLE, SEATTLE POLICE DEPARTMENT, Defendant.

Case No. 2:20-cv-00887-RAJ

United States District Court, W.D. Washington, at Seattle.

Signed June 12, 2020

Breanne Mary Schuster, John B. Midgley, Lisa Nowlin, Molly Tack-Hooper, Nancy Lynn Talner, ACLU of Washington, Carolyn S. Gilbert, Heath L. Hyatt, Joseph M. McMillan, Mallory Gitt Webster, Nitika Arora, Paige L. Whidbee, David A. Perez, Perkins Coie, Robert Seungchul Chang, Ronald a Peterson Law Clinic Seattle University School of Law, Seattle, WA, for Plaintiffs.

Carolyn U. Boies, Ghazal Sharifi, Seattle City Attorney's Office, Seattle, WA, for Defendant.

ORDER GRANTING IN PART MOTION FOR TEMPORARY RESTRAINING ORDER

Richard A. Jones, United States District Judge

I. INTRODUCTION

The city and nation are at a crisis level over the death of George Floyd. One would be missing the point to conclude that the protests that are the subject of this motion are only about George Floyd. His death just happens to be the current tragic flashpoint in the generational claims of racism and police brutality in America. The global strength of the Black lives movement and the obvious commitment to change are a clear indication—not just to this Court, but globally—that these protests will not be short-lived, and the protestors have made it clear that their determination will be relentless until change and police reform is made.

What brings the parties to this Court today are peaceful protestors desiring to engage in their rights guaranteed by the Constitution, the freedom of assembly without fear of retaliation or disruption by Seattle police officers’ use of tear gas, pepper spray, flash bang devices, or foam-tip bullets.

The First Amendment guarantees that all citizens have the right to hold and express their political beliefs through peaceful protests. Police cannot interfere with orderly, nonviolent protests because they disagree with the content of the speech. At the same time, this Court must balance these interests when violent offenders choose to disrupt constitutionally protected activity.

For the reasons below, Plaintiffs’ Motion for Temporary Restraining Order (Dkt. # 6) is GRANTED in part .

II. BACKGROUND

On May 25, 2020, George Floyd died in the custody of four Minneapolis police officers. Since then, nationwide outrage and protest has ensued. Protests in Seattle began on May 29, 2020, just days after his death and continue to this day. Indeed, within moments of this Order a statewide walkout and march is set to begin.

The tale of the protests is cloudy. The parties agree that the protests have been largely peaceful. Dkt. # 6 at 13; Dkt. # 29 at 7-9. But on some occasions, the protestors and the Seattle Police Department ("SPD") have exchanged bottles, rocks, and fireworks for tear gas, pepper spray, and blast balls. Dkt. # 19 ¶ 4; Dkt. # 27 ¶¶ 12-25. On June 5, 2020, the SPD banned the use of tear gas, subject to some exceptions. Dkt. # 27 ¶ 21. Days later, SPD deployed tear gas again. Dkt. # 8 ¶¶ 6, 11-12.

Plaintiffs sued Defendant City of Seattle ("City") in this Court, alleging that the City violated their rights under the First and Fourth Amendments. Dkt. # 1. Plaintiffs allege that during the George Floyd protests, the SPD deployed "less-lethal" weapons including "chemical irritants, batons, kinetic impact projectiles, and weapons intended to stun with light and sound." Id. ¶ 15. Chemical irritants include tear gas ("CS gas") and oleoresin capsicum spray ("OC" or "pepper" spray). Id. ¶ 16. The use of these weapons, Plaintiffs say, deprived them of their right to protest and to be free from excessive force. Id. ¶¶ 140-47.

Hours after they filed their complaint, Plaintiffs moved for a temporary restraining order ("TRO"), seeking to enjoin the City from "deploying chemical weapons or projectiles of any kind for the purpose of crowd control at protests or demonstrations ... includ[ing] prohibitions on[ ] (1) any chemical irritant such as CS Gas (‘tear gas’) or OC Spray (‘pepper spray’) and (2) any projectile such as flash-bang grenades, ‘pepper balls,’ ‘blast balls,’ and rubber bullets." Dkt. # 6-1 at 2; see also Dkt. # 6. The City opposed that motion but, in the interest of compromise, proposed revisions to the injunction that it is willing to stipulate to. Dkt. # 29 at 12-14.

The Court has reviewed the evidence supplied by the parties, but, of course, the record is limited at this stage. Based on the Court's review, the video and testimonial evidence show that on some occasions the SPD has in fact used less-lethal weapons disproportionately and without provocation. See, e.g. , Dkt. # 9 ¶ 3; Dkt. # 12 ¶¶ 3-4, 6-8; Dkt. # 19 ¶¶ 3-4.

III. LEGAL STANDARD

Like a preliminary injunction, issuance of a TRO is "an extraordinary remedy never awarded as of right." Garcia v. Google, Inc. , 786 F.3d 733, 740 (9th Cir. 2015). Under Federal Rule of Civil Procedure 65(b), a party seeking a TRO must make a clear showing (1) of a likelihood of success on the merits, (2) of a likelihood of suffering irreparable harm in the absence of preliminary relief, (3) that the balance of hardship tips in her favor, and (4) that a temporary restraining order in is in the public interest. Winter v. Natural Resources Defense Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008) (articulating standard for preliminary injunction); Stuhlbarg Int'l Sales Co. v. John D. Brush & Co. , 240 F.3d 832, 839 n.7 (9th Cir. 2001) (noting that preliminary injunction and temporary restraining order standards are "substantially identical").

IV. DISCUSSION

A few words to start: First, as other courts have recently expressed,¹ people have a right to demonstrate and protest government officials, police officers being no exception. Their right to do so, without fear of government retaliation, is guaranteed by the First and Fourth Amendments. Second, to protect person and property, police officers must make split-second decisions, often while in harm's way. Third, the Court hopes that the parties see the kinship in their arguments—not all protestors seek destruction; not all officers seek violence. Finally, like previous courts, this Court recognizes the difficulty in drawing an enforceable line that permits police officers to use appropriate means in response to violence and destruction of property but that also does not chill free speech or abuse those who wish to exercise it.

Here, Plaintiffs request a TRO on their First and Fourth Amendment claims. Dkt. # 6. They seek to enjoin the City of Seattle, including the SPD, from deploying "chemical weapons or projectiles of any kind for the purpose of crowd control at protests or demonstrations." Dkt. # 6-1 at 1. The Court analyzes Plaintiffs’ request under the four Winter factors and addresses each in turn.²

A. Likelihood of Success on the Merits

Plaintiffs argue that the SPD's use of less-lethal, "crowd control" weapons violates their First Amendment right to protest and their Fourth Amendment right to be free from excessive force.

i. First Amendment Claim

To establish a First Amendment retaliation claim, plaintiffs must show that (1) they were engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and (3) the protected activity was a substantial or motivating factor in the defendant's conduct. Pinard v. Clatskanie Sch. Dist. 6J , 467 F.3d 755, 770 (9th Cir. 2006). At this stage, Plaintiffs have made a clear showing of all three elements.

First, the right to protest—including activities such as "demonstrations, protest marches, and picketing"—is clearly protected by the First Amendment. Collins v. Jordan , 110 F.3d 1363, 1371 (9th Cir. 1996). Since "time immemorial," city streets and sidewalks have been deemed public fora, and as such any First Amendment restrictions placed on them are "subject to a particularly high degree of scrutiny." Id. "Speech that stirs passions, resentment or anger is fully protected by the First Amendment." Id. (citing Terminiello v. Chicago , 337 U.S. 1, 4, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ). Indeed, the First Amendment "protects a significant amount of verbal criticism and challenge directed at police officers." City of Houston, Tex. v. Hill , 482 U.S. 451, 461, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987) (explaining that yelling obscenities and threats at a police officer is still protected under the First Amendment). The law is clear that the government may not prohibit angry or inflammatory speech in a public forum, unless it is both "directed to inciting of producing imminent lawless action" and "likely to incite or produce such action." Collins , 110 F.3d at 1371.

Plaintiffs show that they were engaged in the constitutional right to protest police brutality. They exercised their right on public fora. The video evidence reveals that many of these protests occurred on Seattle streets, often right outside the police precinct on Capitol Hill. Dkt. # 8 ¶¶ 2, 6, 11-12 (videos of June 8 protest); Dkt. # 19 ¶¶ 3-4 (videos of June 1 and June 2 protests). On this record, their protests have been passionate but peaceful, and they must thus be protected even if they stand in opposition to the police. The video and testimonial evidence reveal as much. See, e.g. , Dkt. # 9 ¶ 3; Dkt. # 12 ¶¶ 3-4, 6-8; Dkt. # 19 ¶¶ 3-4.

Both parties agree that some protesters did launch objects at the police, ranging from rocks, bottles, fireworks, traffic cones, traffic flares, and more. Dkt. # 9 ¶ 3; Dkt. # 12 ¶ 11; Dkt. # 27 ¶¶ 12-25. Moreover, the City represents that SPD confronted "significant arson events, assaults on civilians and officers, as well as wide-spread looting and property destruction," among other criminal activities. Dkt. # 29 at 7. This, no...