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naraburns  nihil supernum  1yr ago (text post)   32440 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.

If I’m reading this right, Hunters Capital kind of slung every accusation they could manage, and now at least one has reached settlement.

  • allegations that the city violated their right to due process

  • allegations of negligence

  • illegal taking of their property and civil rights

  • the city “directly participated” in creating CHOP through its decision to provide… accommodations during the three-week protest.

  • “right-of-access taking”

I think these correspond to the 5 claims mentioned, but I’m having a hard time getting the order to load. If so, the first three were dismissed; the other two went to jury trial, and this settlement must be one or both of them. Any guesses? As a layman, I’d expect the right-of-access claim to be more damning, but that’s just because it’s harder to follow.

Also, I shared the ghola’s reaction to BLISTERING judicial smackdowns. Quite the turn of phrase.

The order divides them into

  1. allegations of violations of due process (of "right of free movement and the right to remain in a public place of one’s choosing")

  2. allegations of violations of substantive due process (of "state-created dangers" that "increased the likelihood of property damage, loss of business revenue and rental income, personal injury, loss of use of property, and other damages".)

  3. a) unlawful per se taking ("of the right to exclude others from their properties") and b) right-of-access taking ("deprived them of the right to access their properties")

  4. negligence (which seemed to focus for procedural reasons on Seattle's non-enforcement of fire code and street public meeting safety laws?)

  5. nuisance (for not-directly-statutorily-authorized-actions that blocked roads and, indirectly, lead to graffiti, damages, loud noises, etc)

Claims 1, 2, 3a), and 4 were dismissed with prejudice. Claims 3b and 5 held to rest on matters of contested fact to be determined by jury.

Right of access is a Washington-specific variant of the right, and it requires that "access to their properties was eliminated or substantially impaired", and that "the government action in question has actually interfered with the right of access", and "was more than mere inconvenience at having to travel a further distance". It could be relatively lucrative if pressed successfully, but it's very dependent on how much the jury believed people were unable to get to a building and how much those interference were closely tied to state action.

The nuisance claim's... complicated. The law-school answer is that public nuisances don't give a right of action under common law, but in practice there's a sieve of exceptions and Wisconsin's law Washington's law explicitly allows anyone with particularized harm to bring a suit. But there's a host of immunities and exceptions. Seattle focused on the theory that municipalities are immunized from the negligence of their employees, and nuisances that were 'really' negligence wrapped in a fancier word don't escape that. But the plaintiffs at least claimed that the nuisances were actively caused and abetted by Seattle's actions and policies rather than mere failure to enforce, so this didn't work. In turn, though, the nuisance claim's damages are much smaller, and harder to show as caused proximately by Seattle's actions. As a layman, I think it's more likely to get some acceptance by a jury, but I have no idea what the actual damages could be, and for a variety of reasons the normal target of an injunction isn't very useful.

That said, I'm not a fan of the case law that restricted claims 1 and 2 to their limited form, and that resulted in them being thrown out so quickly.

Washington State is a land grant University in Pullman. Go cougs.

Washington is a state of the union.

And your link goes to Wisconsin, for some reason.

Whoops. Corrected, and thanks.

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