Jurkowski et al v. City of Seattle et al

Filing 106

MINUTE ORDER granting in part and denying in part Defendants' 101 Motion to Strike/Response ; denying Plaintiff's 63 Motion for Partial Summary Judgment ; setting ORAL ARGUMENT on Defendants' 66 MOTION for Summary Judgment : Motion Hearing set for Friday, 7/28/2017 at 10:00 AM. Authorized by Judge Thomas S. Zilly.(SWT)

Case 2:15-cv-01155-TSZ Document 106 Filed 07/13/17 Page 1 of 3

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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J. FRANKIE JURKOWSKI and
AARON DONNY-CLARK,

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Plaintiffs,

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v.

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C15-1155 TSZ
MINUTE ORDER

CITY OF SEATTLE, et al.,

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Defendants.
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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:

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(1)
Defendants’ motion to strike, docket no. 101, certain exhibits attached to
the Declaration of Harry Williams IV, docket no. 64, is GRANTED in part and DENIED
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in part, as follows:
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(a)
Defendants’ motion to strike is GRANTED with respect to
Exhibits 63, 112, and 113. Plaintiffs have not explained the relevance of
Exhibit 63, which is titled “After-Action Assessment of the Police Response to the
August 2014 Demonstrations in Ferguson, Missouri,” or how such document
would be admissible at trial.1 With respect to Exhibit 112, which contains an

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Plaintiffs cite to Exhibit 63 for the proposition that the command at issue in this case to “move

20 back” is indistinguishable from the unwritten “keep moving” policy adopted by law enforcement
agencies in Ferguson, Missouri. See Plas.’ Mot. at 18 (docket no. 63). Exhibit 63, however,
21 does not compare the two scenarios or support plaintiffs’ conclusion. Although a practice of
requiring peaceful demonstrators to walk (or keep moving), rather than stand still, implicates
22 First Amendment and other constitutional concerns, see Abdullah v. Cnty. of St. Louis, Mo., 52
F. Supp. 3d 936 (E.D. Mo. 2014) a situation involving violence, in which police and protestors

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MINUTE ORDER - 1

Case 2:15-cv-01155-TSZ Document 106 Filed 07/13/17 Page 2 of 3

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excerpt from a report dated June or July 2000 by the American Civil Liberties
Union of Washington (“ACLU-WA”), titled “Out of Control – Seattle’s Flawed
Response to Protests Against the World Trade Organization,” plaintiffs suggest
that such evidence would be admissible under Federal Rule of Evidence 803(18)
because the Department of Justice relied on the document, citing a letter to former
Seattle Mayor Michael McGinn from former United States Attorney Jenny A.
Durkan and Assistant Attorney General Thomas E. Perez. See https://tinyurl.com/
y9ycwqgv (cited in Plas.’ Reply at 10 (docket no. 102)). Although on page 5 of
such letter reference is made to the handling of the World Trade Organization
demonstrations in 1999, the ACLU-WA report is not mentioned. To the extent
plaintiffs offer the ACLU-WA report to show that Seattle Police Department
(“SPD”) personnel were on notice of the potential for injury from deployed blast
balls, they have not presented the requisite proof that SPD personnel received or
reviewed the ACLU-WA report, and they have not shown that blast balls were
even discussed in the ACLU-WA report. The ACLU-WA report describes the
effects of tear gas canisters, Oleoresin Capsicum (“OC”) or pepper spray, and stun
or concussion grenades; plaintiffs offer no link between these types of munitions
and blast balls. Exhibit 113 purports to be a series of “tweets” from the Twitter
feed of Paige Cornwell, a reporter for the Seattle Times. Plaintiffs do not indicate
how such hearsay is relevant or would be admissible at trial.
(b)
Defendants’ motion to strike is otherwise DENIED. Although
Exhibits 24, 38, 45, 53, 59, 60, 75, 79, 85, and 105 would not be admissible in
evidence in their current form, the Court treats them as setting forth plaintiffs’
counsel’s arguments and has considered them in such light. Exhibits 40, 123, and
125 contain photographs as to which plaintiffs can presumably, through their own
or another witness’s testimony, lay a foundation for admission into evidence.
Exhibit 55 is a report by SPD Lt. Stephen Hirjak, who would presumably, if called
as a witness, testify consistently with its contents. Exhibit 106, which is a video of
plaintiff J. Frankie Jurkowski walking and talking, appears to be offered to
indicate the amount of time required to traverse a certain distance, and it has been
considered for such purpose.

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(2)
Plaintiffs’ motion for partial summary judgment, docket no. 63, is
18 DENIED. Plaintiffs have not shown the requisite absence of any genuine dispute of
material fact and have not demonstrated that they are entitled to summary judgment as a
19 matter of law against defendant City of Seattle. See Fed. R. Civ. P. 56(a).
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are at risk of being injured, is entirely different and might well justify orders to disperse, keep
22 moving, or “move back.” See White v. Jackson, 2016 WL 8674192 at *26 (E.D. Mo. Sep. 30,
2016) (distinguishing Abdullah).

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MINUTE ORDER - 2

Case 2:15-cv-01155-TSZ Document 106 Filed 07/13/17 Page 3 of 3

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(3)
Oral argument on defendants’ motion for summary judgment, docket
no. 66, is hereby SET for Friday, July 28, 2017, at 10:00 a.m.

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(4)
3 record.
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The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 12th day of July, 2017.

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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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MINUTE ORDER - 3