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naraburns  nihil supernum  1yr ago (text post)   32428 thread views

Culture War Roundup for the week of February 13, 2023

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Remember Seattle's CHAZ/CHOP? After the place was cleared, a bunch of local businesses and property owners sued the city and now they all reached a settlement. One part that definitely didn't help Seattle were tens of thousands of deleted text messages:

The city of Seattle has settled a lawsuit that took aim at officials’ handling of the three-week Capitol Hill Organized Protests and further ensnared the former mayor and police chief, among others, in a scandal over thousands of deleted text messages. The Seattle City Attorney’s Office filed notice of a settlement Wednesday in U.S. District Court, just three weeks after a federal judge levied severe legal sanctions against the city for deleting texts between high-ranking officials during the protests and zone that sprung up around them, known as CHOP.

[...]

Attorneys for the more than a dozen businesses that sued the city, led by Seattle developer Hunters Capital, sent a series of letters to the city in July 2020 — after another lawsuit over the violent police response to the protests — demanding that any evidence pertaining to the city’s alleged support and encouragement of the zone’s creation be retained, according to the court docket and pleadings.

U.S. District Judge Thomas Zilly concluded last month that officials ignored the notifications, sending the so-called Hunters Capital lawsuit to trial on two of five claims and dismissing three others. In doing so, Zilly issued a blistering order that leveled crippling sanctions against the city for the deletion of tens of thousands of text messages from city phones sent between former Mayor Jenny Durkan, former police Chief Carmen Best, fire Chief Harold Scoggins and four other ranking city officials during the protests.

The judge found significant evidence that the destruction of CHOP evidence was intentional and that officials tried for months to hide the text deletions from opposing attorneys.

Why won’t there also be criminal proceedings for the people who destroyed evidence?

Because there's no crime to speak of. The only thing that comes close is Obstruction of Justice, but that only applies in criminal cases, not civil. Spoliation of evidence in a civil case is shitty, but it's a civil wrong, not a criminal one, and the appropriate punishment is sanction by the civil court.

I think there are several states with open meetings and records laws (uncertain about the specific one in Washington state) in which this might rise to a criminal act. But that would also depend on the state wanting to bring charges.

I thought about including something like this but I decided against it because these laws don't really apply here. For instance, Pennsylvania has an open records law, but it's only concerned with whether an agency is obligated to provide certain records; it doesn't contemplate that an agency would actually destroy records to prevent disclosure. Furthermore, there are plenty of exceptions to disclosure, notably, a record that reflects

the internal, predecisional deliberations of an agency, its members, employees or officials or predecisional deliberations between agency members, employees or officials and members, employees or officials of another agency, including predecisional deliberations relating to a budget recommendation, legislative proposal, legislative amendment, contemplated or proposed policy or course of action or any research, memos or other documents used in the predecisional deliberations.

If the text messages in question were the mayor and police chief strategizing about how to handle the protest, they could conceivably fall under this exception and thus not be subject to public disclosure. But whether or not they're subject to disclosure has no bearing on whether they have to be produced in discovery, because open records law has no bearing on the discovery process. There is, of course, a separate criminal offense for destroying public records, but that wouldn't really apply here because it's unclear if it would apply to text messages. Historically, all the cases involving this (at least the ones that made the news) involved falsification or destruction of actual records that are required by law to be filed with the state. For example, there was a case a few years back where the operator of a water treatment plant was submitting falsified water quality reports to whatever agency monitors such things to cover up the fact that the water wasn't up to standard. I'm not saying that text messages necessarily couldn't be classified as public records under this law, or under whatever comparable law they have in Washington, but it's not an obvious prosecution.

The one I'm most familiar with is the Texas Open Meetings Act, which seems to place some stricter requirements on "meetings" with although that would depend on the details of city governance (were these "meetings" with the mayor and city council or is the mayor authorized to directly command the police department without deliberation?) and the text messages at play. Anecdotally, I've heard that politicians are advised to not discuss business outside of announced, scheduled meetings, but charges are infrequent (although not non-existent).

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