By Paul Kiefer

On Monday, Federal District Court Judge Richard Jones found the city of Seattle in contempt of an injunction he issued in June forbidding the Seattle Police Department  from using force against peaceful protesters. According to Durkan spokesperson Kelsey Nyland, the ruling is the first contempt finding against the city in recent memory; within the next week, the court will begin considering possible penalties.

The contempt finding is the latest development in a protracted legal battle between the city and Black Lives Matter Seattle-King County (BLMSKC). Judge Jones first issued the injunction after BLMSKC and a group of individual plaintiffs, represented by attorneys from the ACLU of Washington, Seattle University School of Law’s Korematsu Center, and Seattle law firm Perkins Coie, sued the city and SPD for using excessive force in its response to the first wave of protests last summer. In June, Jones sided with BLMKSC and issued a temporary injunction prohibiting officers from using a variety of “less-lethal” weapons, including blast balls, pepper spray, tear gas and rubber bullets, against nonviolent protesters.  He also found that some officers had used force in response to the message of the protests themselves, not any perceived threat to their safety or to property.

A month later, BLMSKC returned to his court to ask Judge Jones to find SPD in contempt of the injunction after the department allegedly targeted journalists, medics and legal observers at a Capitol Hill protest on July 25. That motion never received a hearing; instead, the city’s attorneys and BLMSKC agreed to expand the injunction. The expanded court order explicitly prohibited SPD from targeting journalists, medics and legal observers, and it restricted officers’ use of less-lethal weapons even further; for instance, it forbade officers from using these weapons to move crowds.

Judge Jones’ new finding is the result of a second motion for contempt that BLMSKC filed against the city at the end of September. In the motion, the group’s attorneys alleged that SPD officers violated the new, more restrictive injunction during their responses to protests in August and September, including at a rally for Summer Taylor, a Seattle protester who died after being struck by a car, on August 26 and at a protest outside the Seattle Police Officers Guild (SPOG) headquarters on August 7.

David A. Perez, a partner at Perkins Coie, said in a statement after the ruling: “This ruling reaffirms that the basic principle that protesters have a right to exercise their First Amendment freedoms without fear that the City will retaliate with violence, and serves as a reminder that the City cannot violate the Court’s orders without consequences. We will continue to take violations of the Court’s orders seriously.”

“Asking the Court to find the City in contempt was not an easy decision on our part.  But after witnessing repeated and blatant violations of protesters’ constitutional rights, we had to act.  This ruling reaffirms that the basic principle that protesters have a right to exercise their First Amendment freedoms without fear that the City will retaliate with violence, and serves as a reminder that the City cannot violate the Court’s orders without consequences. We will continue to take violations of the Court’s orders seriously.”

According to Robert Christie, an outside attorney representing the city in the case, SPD’s actions were justified. In his arguments at a hearing on November 18, Christie said SPD officers were instructed to use less-lethal weapons in response to threats to their safety. The city’s legal team also argued that it wasn’t SPD’s fault if individual officers disobeyed the injunction. To shore up their claim, the team filed declarations from SPD commanders who described briefing their officers on the injunction before they responded protests.

In his ruling on Monday, Judge Jones categorically dismissed the city’s argument that it wasn’t liable for the actions of individual SPD officers. After calling the city’s arguments “novel and innovative,” he pointed out that “the City has already agreed that violations by individual officers are nonetheless violations of the [injunctions]” when it agreed to both previous court orders, setting the stage for his contempt findings.

Judge Jones’ decision to find the city in contempt rests on four instances in which the court determined that individual SPD officers used less-lethal weapons in violation of the court’s orders. Three of those violations involved officers using pepper spray and blast balls indiscriminately against protesters. In the final case, Judge Jones noted that SPD Lieutenant John Brooks, who frequently coordinates the department’s protest response, ordered an officer to use a blast ball to “create space” between officers and protesters; that, the judge wrote, was not a justified use of force.

While acknowledging that SPD’s tactics had become “more restrained” since June, Judge Jones was quick to emphasize that the four clear, documented violations were more than enough to justify his contempt ruling. “They were not at the boundary, overstepping ever so slightly or ‘technically,'” he wrote. “They violated the substantive terms of the Orders by a clear and convincing margin.” He added that the four clear violations were probably not the full extent of SPD’s breach of the court’s order, pointing out that the city hasn’t yet provided body-worn video footage from several protests that might reveal other misconduct.

Seattle is now the second city found in contempt of a federal court order limiting police officers’ use of force in protest management. On December 1st, U.S. District Court Chief Judge Marco Hernandez found the city of Portland in contempt of a similar injunction he issued on June 26th; that order also stemmed from a lawsuit against the city by a group of protesters at the beginning of last summer.

The plaintiffs in the lawsuit against the city have until December 11th to send a proposal for consequences to the court, and the city can file a response to those suggestions before December 18th. If the court imposes a fine on the city, those dollars will come from the Judgment and Claims Fund, into which multiple departments—including SPD—pay each year.