McCarthy v. Barret

• Citation: 804 F.Supp.2d 1126
• Decision Date: 26 July 2011
• Docket Number: Case No. 3:09–CV–5120–RBL.
• Parties: Thomas McCARTHY, et al., Plaintiffs, v. James BARRETT, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

804 F.Supp.2d 1126

Thomas McCARTHY, et al., Plaintiffs,

v.James BARRETT, et al., Defendants.

Case No. 3:09–CV–5120–RBL.

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

July 26, 2011.

Evan L. Schwab, Melody Rose Spidell, Sarah A. Dunne, ACLU of Washington, Nathan Thomas Alexander, Dorsey & Whitney, Scott A.W. Johnson, Theresa Wang, Stokes Lawrence, Seattle, WA, for Plaintiffs.

Jean Pollis Homan, Tacoma City Attorney's Office, Tacoma, WA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT [Dkt. # 59, 64, 66, 67, 68].

RONALD B. LEIGHTON, District Judge.

THIS MATTER comes before the Court upon Defendants' Motions for Summary Judgment. [Dkt. # 59, 64, 66, 67, 68]. The Court has considered the entirety of the record herein, and for the reasons set forth below, the Court GRANTS the motions in part and DENIES the motions in part.

I. BACKGROUND

This action arises out of the Milwaukee Way Antiwar Protest in 2007. Plaintiffs Thomas McCarthy, Phan Nguyen, Elizabeth Rivera Goldstein, Leah Coakley, Patrick Edelbacher, and Charles Bevis participated in the protest and were arrested for violating a rule established by the Tacoma Police Department (TPD) that prohibited protestors from bringing backpacks into the designated protest zone.

In March 2007, the United States military used the civilian Port of Tacoma to load and ship military vehicles and equipment for deployment to the wars in Iraq and Afghanistan. On the night of March 3rd, military Strykers began moving in convoys from Fort Lewis to the port where the vehicles were then staged on port property, awaiting arrival of the ship that would take them overseas. Citizens gathered along Milwaukee Way to protest the use of the port for military purposes, to voice their opposition to the surge of troops for the war in Iraq, and to support the soldiers who would be deployed as part of the surge. On this first night, no protest zone had been established.

The protest lasted for eleven days [Wang Dec., Dkt. # 79–5, at 1] and took place in an industrial area far removed from any stores or restaurants. [Wang Dec., Dkt. # 81–7, at 8]. Typically, there were between thirty and forty protestors, peaking on Friday March 9th at approximately 150. [Wang Dec., Dkt. # 79–5, at 7–11]. During the night of March 4th, TPD designated a protest area along the east side of Milwaukee Way between the fence and the road. [ Id. at 7]. The street has no sidewalks but is lined with large gravel shoulders. [Miller Dep., Dkt. # 77–5, at 8–9]. At first, the only instruction given to the protesters was that they could not cross the east fog line onto Milwaukee Way because the Strykers were being moved down that street. [Barrett Dep., Dkt. # 77–9, at 33–34, 49; Jagodinski Dep., Dkt. # 77–8, at 14]. To form barriers between the protestors and the road, TPD used members of the Disorder Response Team (DRT) who were dressed in full riot gear with their names covered up. [Barrett Dep., Dkt. # 77–9, at 48–49]. Protestors were allowed to travel north and south along the gravel shoulder of Milwaukee Way. [Miller Dep., Dkt. # 77–5, at 8–9]. From the shoulder, protestors could see the soldiers driving the Strykers and were able to effectively communicate their message to them.

The parties in this case disagree about what occurred after the protest zone was established and after the rule to not cross the fog line was communicated to the protestors. Plaintiffs assert that on March 4th, the protestors were peaceful and obeyed the rules, but TPD suddenly began erecting barricades to prevent protestors from walking north on Milwaukee Way. [Jagodinski Dep., Dkt. # 77–8, at 15]. Plaintiffs further contend that they were given no notice that the restrictions were going to change, and as a result, they felt disoriented and intimidated. [Coakley Dep., Dkt. # 76–1, at 16]. To effectuate the rule change, bicycle officers formed a line perpendicular to the road and used their bikes in a “wheels up” formation to push the protestors back. [Jagodinski Dep., Dkt. # 77–8, at 18].

Defendants, however, maintain that the northern barrier was added suddenly because protestors became emotionally charged and verbally abusive. [Wang Dec., Dkt. # 79–5, at 7]. They used bullhorns, tambourines, and drums to make noise. Id. Several protestors were wearing anarchist colors and covered their faces with bandanas. Id. Others were seen with large folding knives clipped to their pockets. Id. Their demeanor “appeared to be one of preparation to take on the police.” Id. Furthermore, one officer testified that the protestors were given both vocal and visual cues that, effective immediately, they were no longer able to travel north up Milwaukee Way. [Jagodinski Dep., Dkt. # 77–8, at 15]. On this night, three protestors (none of whom are the plaintiffs) were arrested for assault. [Wang Dec., Dkt. # 79–5, at 7].

By March 5th, vehicles were no longer allowed to park along Milwaukee Way. [Barrett Dep., Dkt. # 77–9, at 12–13]. Defendants claim this restriction was implemented for traffic safety; Plaintiffs contend that TPD intended to prevent protestors from going back and forth to their cars. On March 6th, Defendants observed several protestors wearing bandanas over their faces. [Barrett Aff., Dkt. # 61, at 6]. One sergeant testified to seeing a protestor with a backpack that was “heavily laden.” [Barrett Dep., Dkt. # 77–9, at 60–61]. After the protestors were gone for the night, a backpack filled with chains and padlocks was found in the protest zone. [Barrett Dep., Dkt. # 77–9, at 22–23].

The next afternoon, on March 7th, TPD implemented a “no-bag” rule, prohibiting any individual from entering the protest zone with a backpack, large bag, or cooler. [Wang Dec., Dkt. # 84–6, at 1–2]. TPD maintains that it adopted and enforced the no-bag rule in order to prevent protestors from bringing chains and locks (such as the ones discovered in a backpack the night before), which could be used as “direct action” devices to stop the movement of the Strykers. [Barrett Dep., Dkt. # 77–9, at 26]. Gary Smith, TPD's intelligence analyst, concluded that the chains indicated planning and preparation for human blockades, although he never inspected the protest area or the chains. [Smith Dep., Dkt. # 78–5, at 61–63]. Nevertheless, Defendants argue that before and during the protest, police obtained intelligence that the protestors were planning direct action, which had occurred during antiwar protests in Olympia, Washington, in 2006. [Barrett Aff., Dkt. # 61, at 7–8]. To ensure the safety of the public, the Strykers, and the protestors, TPD adopted the no-bag rule. [ Id. at 12–13]. Plaintiffs argue that TPD relied on faulty intelligence (which came primarily from internet searches and listserv postings), and that TPD never had any evidence of a concrete plan to engage in direct action or any other criminal activity. [Pl. Reply, Dkt. # 74, at 11–12]. Instead, Plaintiffs contend that Defendants implemented the rule because they had a general and unsubstantiated fear of anarchists, and they intended to suppress or chill the protestors' antiwar speech. Id.

A checkpoint was set up at the entrance of the Milwaukee Way protest zone for the purpose of enforcing the new no-bag rule. [Barrett Dep., Dkt. # 77–9, at 50–51]. There is conflicting testimony about whether the rule was reduced to writing, but it is clear that determining what constituted a “large bag” was left to the complete discretion of each individual officer. [Paris Dep., Dkt. # 78–1, at 4–5]. The evidence shows that they all had widely varied interpretations. [ Compare Heilman Dep., Dkt. # 78–8, at 7 (concluding a large bag meant something larger than an average size purse) with Strickland Dep., Dkt. # 77–6, at 31 (stating any bag was prohibited regardless of whether it was a small fanny pack or large mountaineering backpack) ].

The only alternative to the no-bag rule that TPD considered was the implementation of voluntary searches, but Defendants ruled out that option after deciding it would be difficult to explain to protestors, it might violate the Fourth Amendment, and it would not treat all protestors equally. [Sheehan Dep., Dkt. # 77–3, at 16; Barrett Dep., Dkt. # 77–9, at 63–65]. Protestors were allowed to bring lawful items, such as food, water, and medicine, but if they wanted to enter the protest zone, they could not carry such items in a backpack, large bag, or cooler. [Barrett Aff., Dkt. # 61, at 12].

Consequently, protestors had to either walk the mile back to their car to dispose of their bags or risk stashing them somewhere outside the protest zone. Defendants have also maintained that if the protestors wanted to keep their bags, they could have simply protested outside of the designated zone. [Barrett Aff., Dkt. # 61, at 12].

During the time that the no-bag rule was in effect, no attempt was ever made to prohibit weapons from the protest zone, even though several protestors were seen carrying knives throughout the week. [Barrett Dep., Dkt. # 77–9, at 14–15]. No attempt was made to prevent protestors from carrying chains or locks underneath their coats. [ Id. at 40–42]. Rather, TPD simply imposed a blanket restriction that prohibited anyone from carrying a large bag or backpack into the protest zone.

In the early morning hours of March 8th, after the no-bag rule had already been implemented, TPD discovered a hole dug underneath the fence and two metal pipes, each sixteen feet long, stashed on the east side of Milwaukee Way where the protestors had gathered earlier that night. [Wang Dec., Dkt. # 79–5, at 8]. TPD concluded that when coupled with the chains found the day before, the pipes were evidence that the protestors intended to attempt to disrupt the convoys. Id.

By Friday, March 9th, the Strykers were all staged on private port property. Id. Convoys would no longer make their way down Milwaukee Way or any other public...