United States of America v. City of Seattle

Filing 630

TEMPORARY RESTRAINING ORDER by Judge James L. Robart GRANTING Plaintiff United States' Motion for Temporary Restraining Order (Dkt. # 627 ). (AD)

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 1 of 11

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

8
9
10

UNITED STATES OF AMERICA,

ORDER

Plaintiff,

11

CASE NO. C12-1282JLR

v.
12
13

CITY OF SEATTLE,
Defendant.

14
15
16

I.

INTRODUCTION

Before the court is Plaintiff United States of America’s (“the Government”)

17

motion for a temporary restraining order (“TRO”) enjoining implementation of Seattle

18

Police Chief Carmen Best’s directive to Seattle Police Department (“SPD”) officers on

19

July 23, 2020, which implemented portions of the Seattle City Council’s Ordinance No.

20

119805 banning certain crowd control weapons (“CCW”). (See TRO Mot. (Dkt. # 627);

21

see also Fogg Decl. (Dkt. # 628) ¶ 2, Ex. A (“Directive”).) The Directive instructs

22

officers to cease use of and possession of certain crowd control implements known as 40

ORDER - 1

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 2 of 11

1

mm launchers, blast balls, CS gas, and oleoresin capsicum (“OC”) spray. (See Directive.)

2

The court has reviewed the motion, the submissions related to the motion, the relevant

3

portions of the record, and the applicable law. In addition, the court held a video and

4

telephonic hearing on July 24, 2020, at 8:00 p.m., PDT, in which counsel for the parties

5

and the Community Police Commission (“CPC”) participated. Having considered all of

6

the foregoing, the court GRANTS the Government’s motion as more fully described

7

below.

8
9

II.

BACKGROUND

In 2011, the Government investigated SPD for a potential pattern or practice of

10

unconstitutional policing and excessive force. (See Dkt. # 1-1.) As a result of its

11

investigation, the Government issued findings that such a pattern or practice of excessive

12

force existed. (See id.) Rather than pursue litigation to contest this finding, the City of

13

Seattle opted to enter into the Consent Decree 1 that this court now administers. Although

14

the City did not admit that the SPD engaged in a pattern or practice of unconstitutional

15

policing and excessive force, the City did admit that there was an evidentiary basis for

16

entry of the Consent Decree, including but not limited to the Government’s investigation.

17

(See Findings and Conclusions (Dkt. # 14) ¶¶ 16, 27.)

18
19

Under the Consent Decree, the City agreed to abide by a number of prescriptive
requirements designed to eliminate unconstitutional uses of force. (See generally

20
1

21
22

The Settlement Agreement between the parties that the court entered an as order has
been known as the “Consent Decree.” (See Settlement Agreement (Dkt. # 3-1); Order
Provisionally Approving the Settlement Agreement (Dkt. # 8); Order Modifying and
Preliminarily Approving the Settlement Agreement (Dkt. # 13).)

ORDER - 2

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 3 of 11

1

Consent Decree.) Specifically, the Consent Decree requires that the City submit policies

2

related to the use of force, including the use of crowd control management weapons, to

3

the Monitor and the Government before the policies are implemented. (Consent Decree

4

¶ 177.) Since 2012, the City has followed these requirements, including for every

5

revision for SPD’s use of force policies, since the Consent Decree’s inception. (See Dkt.

6

## 569-2 to 569-4.) Likewise, the City followed this process in passing the current

7

version of SPD’s crowd management policy. (See Dkt. ## 359-1, 363.)

8
9

In the Consent Decree, the City also agreed to abide by a series of principles
including that officers’ actions should increase public safety, be effective and

10

constitutional, embrace principles of procedural justice, that comply with uses of force

11

that are consistent with the principles set forth in Graham v. Connor, 490 U.S. 368

12

(1989). In other words, the City agreed that SPD’s uses of force shall be reasonable

13

under the circumstances and that officers should use de-escalation techniques. (See

14

Consent Decree ¶ 70.) Further, the City agreed to the governing principle that policing

15

must be delivered to the people of Seattle in a manner that ensures both officer and the

16

public’s safety. (Id. ¶ 5.)

17

Recently, the City Council passed Ordinance No. 119805 banning certain crowd

18

control weapons (“CCW Ordinance”). The CCW Ordinance prohibits the City’s use or

19

possession of “crowd control weapons,” which are defined to include “kinetic impact

20

projectiles, chemical irritants, acoustic weapons, direct energy weapons, water cannons,

21

disorientation devices, ultrasonic cannons, or any other device that is designed to be used

22

on multiple individuals for crowd control and is designed to cause pain or discomfort.”

ORDER - 3

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 4 of 11

1

(See Notice (Dkt. # 625) at 2; see also id., Ex. 1 (attaching a copy of the CCW

2

Ordinance) §§ 1(A), 1(B).) The CCW Ordinance makes an exception for the use of

3

oleoresin capsicum spray (“OC spray”) outside the setting of a “demonstration, rally, or

4

other First Amendment-protect event.” (Id. Ex. 1 § 1(D)(2).) However, when used, OC

5

spray must not “land on anyone other than” “an individual in the process of committing a

6

criminal act or presenting an imminent danger to others.” (Id.) Finally, the CCW

7

ordinance also creates a private right of action for individuals against whom a prohibited

8

crowd control weapon is used. (Id., Ex 1 §§ 1(E)-(F).) Because Mayor Durkan returned

9

the CCW Ordinance to the City Council without a signature, the Ordinance will take

10

effect on July 26, 2020. (See Notice at 3; see also id., Ex. 1 § 5 (“This ordinance shall

11

take effect and be in force 30 days after it is approved by the Mayor, but if not approved

12

and returned by the Mayor within ten days of presentation, it shall take effect as provided

13

by Seattle Municipal Code Section 1.04.020.”).)

14

On July 17, 2020, the City filed a notice with the court concerning the CCW

15

Ordinance. (See Notice.) Because both Mayor Jenny Durkan and Chief Best asked the

16

court to enjoin the effective date of the CCW Ordinance (see id. at 6), the court construed

17

the notice as a motion for a TRO (see 7/22/20 Order (Dkt. # 626) at 3). However, the

18

court declined to enjoin the effective date of the CCW Ordinance because the City had

19

failed to demonstrate that it met the necessary standard for entry of this type of relief.

20

(Id. at 4-7.) The court nevertheless ordered the City to provide the court with the Office

21

of Police Accountability (“OPA”) and the Inspector General’s (“IG”) analysis of the

22

CCW Ordinance, which OPA and IG have committed to provide to the City Council by

ORDER - 4

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 5 of 11

1

August 15, 2020, and the court set a briefing schedule so that it could consider the

2

interaction of the CCW Ordinance with the Consent Decree, as well as with any SPD

3

policies that the Consent Decree governs. (Id. at 7-9.)

4

On July 23, 2020, Chief Best issued her Directive to SPD officers to ensure their

5

compliance with the CCW Ordinance. (Fogg Decl. ¶ 2, Ex. A.) Chief Best’s Directive

6

becomes effective on July 25, 2020 at 3:00 a.m., PDT. (See id.)

7

The Government maintains that removing all forms of less lethal implements from

8

all police encounters, as Chief Best’s Directive and the CCW Ordinance will do, will not

9

increase public safety nor provide the means for SPD officers to abide by the

10

de-escalation mandate. The Government asks the court to grant a TRO prohibiting the

11

implementation of Chief Best’s Directive. (See TRO Mot.) The court now considers the

12

Government’s motion.

13

III.

ANALYSIS

14

The standard for issuing a TRO is the same as the standard for issuing a

15

preliminary injunction. See New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434

16

U.S. 1345, 1347 n.2 (1977). A TRO is “an extraordinary remedy that may only be

17

awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat.

18

Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “The proper legal standard for

19

preliminary injunctive relief requires a party to demonstrate (1) ‘that he is likely to

20

succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of

21

preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an

22

//

ORDER - 5

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 6 of 11

1

injunction is in the public interest.’” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1127 (9th

2

Cir. 2009) (citing Winter, 555 U.S. at 20).

3

As an alternative to this test, a preliminary injunction is appropriate if “serious

4

questions going to the merits were raised and the balance of the hardships tips sharply in

5

the plaintiff’s favor,” thereby allowing preservation of the status quo when complex legal

6

questions require further inspection or deliberation. All. for the Wild Rockies v. Cottrell,

7

632 F.3d 1127, 1134-35 (9th Cir. 2011). However, the “serious questions” approach

8

supports the court’s entry of a TRO only so long as the plaintiff also shows that there is a

9

likelihood of irreparable injury and that the injunction is in the public interest. Id. at

10

1135. The moving party bears the burden of persuasion and must make a clear showing

11

that it is entitled to such relief. Winter, 555 U.S. at 22.

12

A.

Serious Questions Going to the Merits and the Balance of Equities

13

With the respect to the first factor, the court concludes that the Government has

14

met the Ninth Circuit’s alternative test of serious questions going to the merits and the

15

balance of hardships tipping sharply in the Government’s favor. If Chief Best’s Directive

16

is implemented, the Government loses its right under the Consent Decree, in which the

17

City voluntarily engaged, to review these policies prior to implementation. Further, the

18

court agrees that by removing all forms of less lethal crowd control weapons from

19

virtually all police encounters, the Directive and the CCW Ordinance will not increase

20

public safety. This is so particularly because neither the CCW Ordinance nor the

21

Directive provide time for police training in alternative mechanisms to de-escalate and

22

resolve dangerous situations if the crowd control implements with which the officers

ORDER - 6

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 7 of 11

1

have been trained are abruptly removed. As Chief Best stated: “Left only with the

2

options of a baton, a Taser (effective distance of approximately 7-12 feet), and an

3

officer’s body, the likelihood of greater injury – to both the officer and subject in those

4

. . . empirically rare but foreseeable situations where some level of force is necessary –

5

should be patent and concerning.” (Best Mem. (Dkt. # 625-2) at 4.)

6

Further, the City is anticipating significant and potentially dangerous protests this

7

weekend just as the Directive and CCW Ordinance go into effect. (See Fogg Decl. ¶ 4,

8

Ex. C (attaching a letter from Chief Best to the City Council on July 23, 2020).) The

9

issuance of this immediate change, without time for additional direction or training, is

10

likely to result in officer confusion, particularly if the Directive or CCW Ordinance

11

undergo additional changes after review by IG, OPA, the parties to this litigation, and the

12

court. (See 7/22/20 Order at 8-9.) These additional changes to policy risk whipsawing

13

officers through three varying sets of expectations in less than one month. The court

14

concludes that such officer confusion presents risks to both the officers’ and the public’s

15

safety.

16

These substantial risks tip the balance of the equities in the Government’s favor.

17

Further, the Government is not arguing that the CCW Ordinance may never be

18

implemented. The Government merely seeks a pause until such time as the Chief Best’s

19

Directive, and the underlying CCW Ordinance, can be reviewed pursuant to the terms of

20

the Consent Decree. For these reasons, the court concludes that the Government has

21

established serious questions going to the merits of its claim and that the balance of the

22

equities tips sharply in the Government’s favor.

ORDER - 7

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 8 of 11

1

B.

Irreparable Harm and the Public Interest

2

The remaining factors of the Winter test also favor an injunction. There are both

3

substantive and procedural grounds on which to find that the absence of injunctive relief

4

will yield irreparable harm. First, substantively, the Government has established that

5

implementation of the Directive and the CCW Ordinance will create a risk that SPD

6

officers will resort to excessive force, which could violate both the Fourth Amendment

7

and the terms of the Consent Decree relating to the use of force. “It is well established

8

that the deprivation of constitutional rights ‘unquestionably constitutes irreparable

9

injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Elrod v.

10

Burns, 427 U.S. 347, 373 (1976)) (finding irreparable harm in case where the plaintiffs

11

established likelihood of success on the merits of their Fourth Amendment claims).

12

Second, procedurally, as discussed above, the Government, the Monitor, and the

13

court are entitled to review “the policies, procedures, training curricula, and training

14

manuals required to be written, revised, or maintained” by the Consent Decree before

15

implementation by SPD. If the court allows SPD to implement the CCW Ordinance and

16

the Directive without first complying with the procedural protections in the Consent

17

Decree, that procedural harm cannot be undone. These substantive and procedural harms

18

are particularly acute here given that the City has reason to believe that protests and

19

public demonstrations in Seattle may occur shortly after the Directive and the Ordinance

20

go into effect. (See Fogg Decl. ¶ 4, Ex. C (attaching July 23, 2020, letter from Chief Best

21

to the City Council).

22

//

ORDER - 8

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 9 of 11

1

The court also finds that a temporary injunction that preserves the status quo of the

2

Consent Decree and the processes put in place by the Consent Decree is in the public

3

interest for similar reasons that the court finds a likelihood of irreparable harm. To the

4

extent that implementation of the Directive and the Ordinance makes it difficult for the

5

SPD to practice effective crowd management tactics and increases the risk of excessive

6

force in violation of the Fourth Amendment, it is in the public interest to prevent that

7

deprivation of constitutional rights. Melendres, 695 F.3d at 1002 (“[I]t is always in the

8

public interest to prevent the violation of a party’s constitutional rights.”) (internal

9

quotation marks omitted); Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)

10

(“When a constitutional violation is likely . . . the public interest militates in favor of

11

injunctive relief because it is always in the public interest to prevent violation of a party's

12

constitutional rights.”) (internal quotation marks omitted).

13

The court recognizes that preservation of the status quo does not ensure that SPD

14

will refrain from using crowd control tactics that result in deprivations of constitutional

15

rights. See Black Lives Matter Seattle-King Cty. v. City of Seattle, Seattle Police Dep’t,

16

No. C20-0887RAJ, 2020 WL 3128299, at *4 (W.D. Wash. June 12, 2020) (finding that

17

the SPD’s use of force in response to recent protests likely violated the Fourth

18

Amendment). However, the procedural and substantive provisions in the Consent Decree

19

are in place to provide the court with mechanisms to monitor SPD’s practices and to

20

work in hand with the parties to determine the most effective police practices for SPD. It

21

is not in the public’s interest to eschew the protections that the parties and the court have

22

spent nearly a decade fashioning the moment SPD engages in potentially unconstitutional

ORDER - 9

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 10 of 11

1

practices. Instead, the court concludes that the public interest weighs in favor of

2

preserving the status quo under the Consent Decree by reviewing SPD’s recent practices

3

and the City’s recent crowd control proposals with input from all the appropriate

4

stakeholders before determining the correct path forward under the terms of the Consent

5

Decree.

6
7

In summary, the court concludes that the Government has clearly met the standard
for issuing a TRO and therefore grants its motion.

8

IV.

9

CONCLUSION

Having concluded that the Government has met the standard for issuing a TRO,

10

the court GRANTS the Government’s motion (Dkt. # 627) and issues a TRO against

11

implementation of Chief Best’s Directive. The court further concludes that it would

12

cause confusion not only for SPD officers, but also the public, if the court were to enjoin

13

Chief Best’s Directive while leaving the CCW Ordinance in place. Accordingly, the

14

court’s TRO will also enjoin the effective date of the CCW Ordinance. The court does

15

not enjoin the CCW Ordinance itself, but rather enjoins only the Ordinance’s

16

implementation date until such time as the procedures the City agreed to follow in the

17

Consent Decree concerning SPD use of force and crowd control policies are followed.

18

Finally, the court notes that nothing in this order is contrary to the preliminary

19

injunction that the Honorable Richard A. Jones issued in Black Lives Matter Seattle-King

20

County, et al., v. City of Seattle, No. C20-0887RAJ (W.D. Wash.), Dkt. # 42. Judge

21

Jones’ preliminary injunction is the current status quo and remains in effect.

22

//

ORDER - 10

Case 2:12-cv-01282-JLR Document 630 Filed 07/25/20 Page 11 of 11

1

Pursuant to Rule 65(b)(2), this TRO will expire 14 days after entry unless before

2

that time the court, for good cause, extends it for a like period or the adverse party

3

consents to a longer extension. See Fed. R. Civ. P. 65(b)(2). The court ORDERS the

4

parties to meet and confer to set a schedule for briefing on a preliminary injunction and

5

file a joint status report concerning the same no later than Wednesday, August 1, 2020.

6

Dated this 24th day of July, 2020.

7
8

A

9

JAMES L. ROBART
United States District Judge

10
11
12
13
14
15
16
17
18
19
20
21
22

ORDER - 11