No Utopia: Pair of Class Actions vs. Seattle for Abdicating Civic Governance in CHAZ/CHOP Takeover Provides Cautionary Tale to Municipalities

Utopian Takeover?
Imagine a world where an unelected political action group commandeers a six-block area of public city space that encompasses a public park and numerous residential and commercial properties. Imagine this group then sets up barricades at borders and entry points, with armed security “sentinels” patrolling the area, restricting vehicular traffic from entering (specifically including law enforcement and first responders), and interrogating residents, workers, and delivery drivers who attempt to enter. It re-purposes public grounds by, e.g., planting makeshift gardens in a public park, erecting temporary housing units, and creating un-regulated food and medical dispensaries. Presentation of opposing political and social viewpoints is barred. Speeches, music, and fireworks are blared at all hours of the night. Trash and feces build up all over. Residents who try to take pictures are threatened with having their phone stolen.

Imagine that, amidst this chaos, private business activity is curtailed, if not closed outright. Access to a physical therapy provider is blocked for its disabled clientele in violation of ADA regulations. Theft, destruction, and vandalism of property in turn run rampant, with graffiti sprayed onto nearly every private building, and quickly re-sprayed if painted over by the property owner (with threats of retaliation against the property owner).

Imagine that, during this takeover, violence flares regularly. With police and first responders delayed from entering, 911 response times triple. Drugs and guns are carried openly and visibly. A garbage dumpster is stolen from a local condo development, and the condo president who attempts to retrieve the bin is physically assaulted. An auto repair shop is broken into, with the armed intruder using Purell to light a fire inside then attacking the arriving owner with a knife and a spike before being subdued but, with police barred from entering and an angry mob demanding his release, the intruder is allowed to go free. A sign language-using female is sexually assaulted, and fires run rampant. And two young men are shot in a single weekend, one fatally, and at least four more shooting victims are reported in the following days.

Class Action Suits vs. City of Seattle
These hardly seem the images of a dreamer’s utopia. Yet two class action lawsuits filed in the U.S. District Court for the Western District of Washington allege that the events described above are exactly what took place beginning June 8, 2020, in Seattle’s so-called “Capitol Hill Autonomous Zone” (CHAZ) or “Capitol Hill Organized Protest” (CHOP). The first, Hunter’s Capital LLC, et al v. City of Seattle, No. 2:20-cv-00983-TSZ, was filed against the city on behalf of 16 businesses and individuals. The second, Bozeman et al v. Durkan, et al, No. 2:20-cv-00984-JLR, was filed by Jacob Bozeman, a solo practitioner, on behalf of himself and another man with the same last name, against the city, the mayor, the state, and the governor.

Together, the suits allege that the above-described takeover occurred with the explicit approval of Seattle’s city leaders, including Mayor Jenny Durkan, who alternately referred to it as “a peaceful expression” of community grief, a “gathering place for community to demand change,” a “block party atmosphere,” and even “the Summer of Love.” The suits allege the city aided the takeover, not just by so publicly voicing approval, but actively abandoning the Seattle Police Department’s East Precinct (not only emptying the building, but barring law enforcement from entering the area); allowing protesters to take possession of police barriers and, later, providing replacement concrete barriers to fortify the original wooden barriers; providing portable toilets and regular service of same; providing medical beds and supplies for a makeshift “medical tent”; blocking/re-routing vehicular traffic in a manner that perpetuated the protesters’ continued dominion over the commandeered space; and regularly meeting and coordinating logistics with protest leaders.

The Hunters Capital action alleges five discrete causes of action: Procedural Due Process under 42 U.S.C. § 1983 (infringing on Plaintiffs’ constitutional rights without notice or hearing), Nuisance under RCW 7.48.010 (interfering with Plaintiffs’ use and enjoyment of their properties by blocked access and unreasonable noise/sanitary conditions), Substantive Due Process under 42 U.S.C. § 1983 (violation of right to be protected from state-created danger), Unlawful Gift under Article VIII, Section 7 of Washington State Constitution (granting without consideration and with donative intent to favored political group the right to occupy public properties and premises to the exclusion of other members of the public), and Taking under 42 U.S.C. § 1983 (depriving access to and encouraging invasion of private properties, without just compensation).

The Bozeman action generally seeks: a declaratory judgment finding the defendants violated the First, Fourth, and Fourteenth Amendments of the U.S. Constitution; an injunction barring further such violations; an injunction barring the defendants from ceding control of the public geographic CHAZ/CHOP zone to any person, group, or entity to the detriment of other members of the public; and an injunction barring the defendants from abdicating their lawful police/law enforcement powers to any person/entity other than duly-elected/appointed police/law enforcement authorities.

While the CHAZ/CHOP zone was dismantled by police pursuant to Mayor Durkan’s executive order on July 1, both lawsuits remain pending. No answers or motions have been filed to date, and the most recent docket action in either is an entry of appearance filed by Assistant City Attorneys in the Hunters Capital action. While the injunctive relief is arguably mooted, the Hunters Capital action seeks actual damages for property damage, lost property value, and loss of business revenue. Both actions also seek to recoup the costs of filing suit. As such, we do not anticipate these legal issues falling by the wayside any time soon, and will monitor further developments.

A Cautionary Tale
Other American municipalities would do well to heed Seattle’s cautionary tale. Portland did just that in quickly dismantling an attempt to re-create the Seattle takeover. Atlanta, on the other hand, is only now ejecting protesters from commandeered space surrounding the Wendy’s site of a controversial fatal police shooting after the tragic fatal shooting of an 8-year old girl, apparently, by protesters enforcing illegal barricades. City leaders should consider not just the social and political costs of allowing (let alone enabling) any political action group to take over a public space, but also the costs of defending such actions in court.

Roman T. Galas is Partner in our Pennsylvania office.