In re Durkan

• Decision Date: 10 December 2020
• Docket Number: No. 98897-8
• Citation: In re Durkan, 196 Wash.2d 652, 476 P.3d 1042 (Wash. 2020)
• Court: Washington Supreme Court
• Parties: In the MATTER OF the RECALL OF Jenny DURKAN, City of Seattle Mayor

196 Wash.2d 652

476 P.3d 1042

In the MATTER OF the RECALL OF Jenny DURKAN, City of SeattleMayor

No. 98897-8

Supreme Court of Washington.

Filed December 10, 2020

Janine Elizabeth Joly, Jennifer H. Atchison, Office of the Prosecuting Attorney, 500 4th Ave., Seattle, WA, 98104-2337, for Respondent.

Rebecca Jane Roe, Schroeter Goldmark Bender, 810 3rd Ave. Ste. 500, Seattle, WA, 98104-1657, G. William Shaw, Ryan James Groshong, K&L Gates LLP, Matthew Phillip Clark, Attorney at Law, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, for Appellant/Cross-Respondent.

Elliot Grace Harvey(Appearing Pro Se), 1505 11th Avenue, Apt. 203, Seattle, WA, 98122, for Respondent/Cross-Appellant.

Matthew Lee Cromwell(Appearing Pro Se), 418 23rd Avenue E., Seattle, WA, 98112, for Respondent/Cross-Appellant.

Alan Lawrence Meekins Jr.(Appearing Pro Se), 4200 Mary Gates Memorial Drive N.E. #Q221, Seattle, WA, 98105, for Respondent/Cross-Appellant.

Charlie Jenna Stone(Appearing Pro Se), 505 Boylston Avenue E. #304, Seattle, WA, 98102, for Respondent/Cross-Appellant.

Leah Michele Solomon(Appearing Pro Se), 1621 N. 47th Street, Seattle, WA, 98103, for Respondent/Cross-Appellant.

Courtney K. Scott(Appearing Pro Se), 1907 13th Avenue S., Seattle, WA, 98144, for Respondent/Cross-Appellant.

YU, J.

¶ 1This case involves cross appeals regarding a petition to recall Seattle Mayor Jenny Durkan based on events that occurred at protests following the killing of George Floyd.The recall petition alleges that Mayor Durkan failed to adequately control the Seattle Police Department's (SPD) response to the protests, allowing the police to use unnecessary force and causing significant harm to nonviolent protesters, local residents, media representatives, and medical aid workers.Of the seven recall charges, six were dismissed by the trial court and one was allowed to move forward.Mayor Durkan appeals the charge that was allowed to move forward, and the recall petitioners appeal the dismissal of two other charges.On October 8, 2020, we issued an order affirming the trial court's dismissal of two recall charges and reversing the finding that one charge was sufficient for recall.We now explain that order.

BACKGROUND

¶ 2 On May 25, 2020, George Floyd was killed by police in Minneapolis, Minnesota.Widespread protests against police brutality swiftly followed.Protests began in Seattle on May 29 and continued regularly thereafter.The protests were largely peaceful, but on multiple occasions, there were conflicts between the crowds and SPD.In response, SPD used "less lethal" methods of crowd control, including tear gas (also known as CS (chlorobenzylidenemalononitrile) gas), pepper spray (also known as OC (oleoresin capsicum) gas), and flash-bang grenades, multiple times beginning in late May.

¶ 3 Numerous protesters were seriously injured, and tear gas seeped into the homes of local residents, causing ill effects to both their health and their property, and forcing some to evacuate the area entirely.SPD officers also suffered injuries.The parties dispute who was responsible for initiating and escalating these conflicts.The recall petitioners contend that SPD's response to the conflicts was both unreasonable and unlawful, and that Mayor Durkan should be recalled for her failure to control their actions.

A.Factual allegations regarding SPD's use of force

¶ 4 The recall petitioners’ case focuses primarily on SPD's use of "chemical agents," namely pepper spray and tear gas, particularly in light of the heightened health risks they pose during the COVID-19 pandemic.2 Clerk's Papers(CP)at 303.In addition, they allege that SPD prevented medical aid workers from attending to the injured and prevented members of the media from doing their jobs.

¶ 5 The use of pepper spray is governed by specific guidelines contained in the SPD manual.The manual provides that pepper spray may be used "Only When Such Force is Objectively Reasonable, Necessary, and Proportional," and cannot be used without a prior verbal warning, unless "giving the warning would compromise the safety of the officer or others."Id. at 202-03.There is no dispute that SPD used pepper spray on numerous occasions to disperse and control the crowds at the protests.The recall petitioners contend that SPD did not follow its own guidelines when doing so, using pepper spray when it was not necessary and without prior verbal warnings.They also contend that "pepper spray presents almost the same danger profile with regard to the pandemic" as tear gas "by making the respiratory tract more susceptible to infection, exacerbating existing inflammation, and inducing coughing."Resp. Br. & Opening Br. of Cross-Appellantat 71CPat 55.

¶ 6 On May 31, two days into the protests, SPD requested special authorization from Seattle Police Chief Carmen Best"to enable patrol to use CS Gas in the necessary event of crowd [dispersal]."1 CPat 176.SPD asked to be allowed to use tear gas, which is not specifically referenced in the SPD manual and is not generally used by patrol officers (as opposed to SWAT (special weapons and tactics) teams), according to the same guidelines that apply to the use of pepper spray.The stated reason for SPD's request was that on May 30, individuals "who appeared to be unaffiliated with the peaceful march, assaulted officers, set fire to police and citizen vehicles, smashed windows of and looted numerous businesses throughout the downtown core, and otherwise caused extensive mayhem and property damage."Id. at 69.Police efforts to control the situation had "largely depleted" their supply of pepper spray and "blast balls," raising a concern that if such events were to recur, they would have no effective means of responding.Id .SPD requested "that the authorization and exemption stated here remain in place for 14 days or until Patrol determines that it has sufficient standard issue less-lethal devices on hand."Id. at 70.Chief Best granted the request.SPD used tear gas on the crowds on June 1 and June 2, with the authorization of the "IC"(incident command).3 CPat 411, 403.

¶ 7 Several key events took place on June 5.SPD advised Chief Best that it "has received what it believes to be sufficient additional supply of standard issue crowd management tools," such that the special authorization for the use of tear gas was no longer necessary.1 CPat 71.Chief Best agreed to rescind the authorization, and SPD issued

a departmental directive prohibiting the use of CS gas except the following circumstances: "Where SWAT is on-scene, consistent with Manual Section14.090(4), SWAT will follow all department policies and procedures regarding the use of specialty tools, to include the use of CS gas, in life-safety circumstances and consistent with training."

Id. at 177(emphasis omitted).The directive also restricted SWAT's authority to use tear gas by requiring that before doing so, "until further notice, any deployment must be approved by the Chief or the Chief's designee."Id.(emphasis omitted).The directive was to remain in place for at least 30 days.3 CPat 445.

¶ 8 Also on June 5, Mayor Durkan sought the advice of numerous entities concerning SPD's crowd control methods.The entities included the Seattle Office of Police Accountability, the Seattle Office of Inspector General, the court appointed Federal Monitor, the Seattle Community Police Commission, and the Department of Justice.The Mayor specifically requested a determination as to "what innovative techniques, or combination of techniques, can provide a greater ability to de-escalate situations that occur with mass protests, so that the use of force can be greatly minimized and avoided" and "a recommendation about the use of CS gas in any situation."Id. at 444.

¶ 9 That same day, the Seattle Office of the Inspector General, the Seattle Community Police Commission, and the Seattle Office of Police Accountability sent a joint initial response, noting that while the SWAT manual contains guidance "for specialty unit use of tear gas," the department-wide SPD manual itself "does not reference the use of CS gas nor the conditions under which it can be used for general crowd control."Id. at 469-70.The response also expressed concern that the use of tear gas for crowd control "was not approved by the federal court in the context of the Consent Decree"(discussed further below), "is not consistent with how the City envisions policing its communities," and has the "potential to increase spread and vulnerability to COVID-19."Id. at 470.The joint response therefore requested that SPD "cease the use of CS gas in response to First Amendment activity, until such time as any appropriate use can be vetted by oversight entities and incorporated into a written SPD policy."Id. at 469.

¶ 10 Two days later, on the evening of June 7, conflicts escalated again, and, believing that the necessary "life-safety circumstances" were presented, SPD requested Chief Best's authorization for SWAT to use tear gas shortly after midnight on June 8, which she granted.1 CPat 179.

¶ 11 There does not appear to be any evidence that tear gas was used after June 8.However, the recall petitioners assert that the inappropriate use of pepper spray has continued; SPD is still attacking protesters "without motivation, provocation, or warning"; and "violence still breaks out regularly between SPD and Seattle citizens."Resp. Br. and Opening Br. of Cross-Appellantat 10, 9.Chief Best has since resigned and been replaced by Interim Chief Adrian Diaz, the former deputy chief.

B.Relevant federal cases

¶ 12 In addition to this recall case, there are two ongoing cases in federal court that are relevant to our decision here.

1."Consent Decree" case

¶ 13 In 2011, the Department of Justice(DOJ)"investigated SPD for a potential pattern or practice of unconstitutional policing and excessive force."United States v. City of Seattle , 474F.Supp.3d 1181, 1183(W.D. Wash.2020).On...