As a federal judge decides whether the Seattle Police Department violated an injunction prohibiting the use of force against peaceful protesters, the department’s lawyers argued Wednesday that SPD can’t be held responsible for the actions of individual officers.

That position stood in sharp contrast to arguments by lawyers for Black Lives Matter Seattle-King County, who have asked U.S. District Judge Richard Jones to sanction SPD and the city for incidents where they argue that officers used less-lethal weapons — particularly so-called “blast balls” and pepper spray — for crowd control and to punish the protesters, in violation of the court’s injunction.

Lisa Nowlin, an attorney with the American Civil Liberties Union of Washington, argued during a 2½-hour hearing Wednesday that the city cannot show that every use of force against protesters on four specific dates was “necessary, reasonable, proportional and targeted,” as required by an injunction issued by Jones in June.

Instead, she argued, “Explosives and pepper spray were being used simply to move people.”

“It is not necessary, reasonable, proportional, or targeted to deploy a blast ball into a group because one person threw a bottle.”

Bob Christie, a private attorney hired to represent the city, argued precisely the opposite: that officers in those instances were attempting to enforce a lawful dispersal order and were being assaulted and disobeyed.

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“We believe that in every specific incident, you had police making split-second decisions while in harm’s way,” Christie argued — a circumstance the injunction makes exception for.

Jones took the matter under advisement and did not issue an immediate ruling.

Wednesday’s hearing was in response to a second attempt by Black Lives Matter Seattle-King County (BLM) to have Jones hold SPD in contempt of an injunction the judge issued in June banning officers from using force against peaceful protesters.

BLM, aided by attorneys from Seattle University School of Law’s Korematsu Center, Seattle law firm Perkins Coie and the American Civil Liberties Union of Washington, sued SPD in June after police turned tear gas, pepper spray, blast balls and batons on thousands of mostly peaceful protesters who had taken to the streets to protest the May 25 death of George Floyd at the hands of police in Minneapolis.

Jones agreed, finding evidence that SPD had used excessive force against the crowd and violated the civil rights of thousands of protesters. The judge enjoined the department from using force against peaceful protesters and concluded there were substantial indications that the officers’ actions against the crowd were in retaliation against the very message that drove hundreds of thousands of people into the streets across the country: racism and police violence.

BLM first asked Jones to hold SPD in contempt back in July, following violent protests on Capitol Hill on July 25 that resulted in dozens of arrests and the alleged targeting by officers of journalists, observers and citizen medics. Police said 59 officers were injured. That motion was scheduled for an extensive hearing when the city agreed to modifications in the injunction to further restrict when officers could use force and making intentional targeting of reporters, medics or observers off-limits.

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The motion under consideration Wednesday was filed Sept. 30 and claims that police, despite explicit orders from the court, violated the modified injunction repeatedly on Aug. 26 during a memorial service for Summer Taylor, a protester killed by a driver during an earlier march, and on Aug. 7 when demonstrators marched on the Seattle Police Officers Guild (SPOG) union offices in Sodo, where protesters claim police blasted country music — “Save a Horse, Ride a Cowboy” by Big & Rich — as 80 officers rushed the crowd on bicycles and foot, apparently to arrest an individual who was carrying a box full of Molotov cocktails.

People in the crowd complained they were herded toward a park more than a mile away at a blistering pace, with officers pepper-spraying or arresting some of those who couldn’t keep up, according to sworn affidavits filed by protesters in support of the motion.

Christie argued that police made an overwhelming and “very targeted” response to try to arrest the individual, who escaped. One Molotov cocktail was thrown; there were no serious injuries, according to pleadings.

Actions on two other dates, Sept. 22 and Sept. 23, are also under consideration, according to court filings.

Thomas Miller, one of Christie’s associates, argued that none of the witnesses cited in the injunctions had access to a full picture of the protests on the ground during those instances, and said police were as discriminating in their use of force as they can be during what are often dynamic and fast-moving situations that require police to consider their safety, the safety of the marchers and that of local businesses and residents.

Not all these events remained — or even began as — protected First Amendment activity, and not all of the participants in these events were peaceful, wrote Christie on behalf of the city and police: “Officers responded to escalating property destruction, violence, and significant threats to officer and public safety.”

The motion is accompanied by a total of 19 sworn declarations from individuals in the crowd and others who claim to have witnessed police use force, including crowd-control weapons such as pepper spray and blast balls, in violation of the injunction.

“I observed SPD officers yee-hawing and bobbing to the country music they played as they attacked the protest,” wrote protester Michael Scaturo, who described himself as a citizen journalist who has participated in some protests. “It did not seem like SPD feared any imminent threat to their safety. They seemed
cheerful, celebratory.”