Can Cities Be Sued for the Riots?

A look at the legal ramifications of cities like Seattle abdicating their responsibilities and allowing the revolutionaries full control over neighbourhoods.

From The Imaginative Conservative

By Thomas Ascik

Can the residents of Seattle whose property and businesses were destroyed, vandalized, or shut down in June, when the city for three weeks allowed and approved of the “autonomous zone,” now sue the city? Two such lawsuits have in fact already been filed in federal court; and in one of them, seventeen different persons and businesses are seeking direct compensation from the city for actual losses suffered.

Ironically, these lawsuits, which attack what legal immunity cities may have in setting the policies and practices of their police forces, occur in conjunction with the vigorous national campaign by Black Lives Matter, associated advocates, and the general media to abolish the related “qualified immunity” that individual police officers have in the regular performance of their duties. The doctrine of qualified immunity was recently reinforced by decisions of the Supreme Court in 2017 and 2018.

Invoking the 14th Amendment’s command that “no state” shall abridge or deny privileges, immunities, due process, or equal protection, the two cases are filed under § 1983 of the Civil Rights Act of 1871, the federal law governing the law of public immunity of both cities and individual police officers. Section 1983 prohibits a state public official, acting “under color” of state law, from depriving any “person” of the “rights, privileges, or immunities secured by the [federal] Constitution and [federal] laws.”

In Hunters Capital v. City of Seattle, a Section 1983 complaint filed in federal district court in Seattle in July, the plaintiffs include individuals, a tattoo parlor, a restaurant, a car repair shop, a physical-therapy studio, a lock-and-key service, and a liquor store, as well as commercial property owners, residential property owners, a home-owners association, real-estate companies, and a printing and manufacturing business. In addition to across-the-board economic loss, among the more specific tangible damages alleged to have been suffered by individual plaintiffs during the three-week life of the autonomous zone are breaking-and-entering, vandalism, a decrease of business of 70 percent, damage to properties, physical assault, harassment and threats, blocked access to a residence, and blocked access to businesses.

The city of Seattle is accused of the “unprecedented decision” to “abandon and close off an entire city neighborhood leaving it unchecked by the police, unserved by fire and emergency health services, and inaccessible to the public at large.” The city likewise is alleged to have “abandoned” the East Precinct police station, and chosen to “actively endorse, enable, and participate in the occupation of” the autonomous zone. Further, the plaintiffs claim that Seattle Mayor Jenny Durkan enunciated her “de facto stamp of approval” of the zone in her “tweets, interviews, and other statements.” (Mayor Durkan described the autonomous zone as a “peaceable expression of our community’s collective grief.” In a June 12 interview, she told CNN that the autonomous zone was “more like a block party atmosphere, and she said that “we could have a summer of love.”)*

The plaintiffs allege 14th Amendment violations of procedural and substantive due process as well as the “taking” of their properties. They contend that they have been denied the equal protection of the laws in that occupants of the autonomous zone did not have the necessary permit that municipal law required. They also argue that, while enforcing criminal laws elsewhere in Seattle, the police did not enforce zoning, nuisance, and criminal laws inside the autonomous zone and did not respond to 911 calls

But do these allegations prove violations of federal civil rights guaranteed by the 14th Amendment? Section 1983 has three requirements. First, the offense complained of must have been committed by an official “person” acting “under color” of state law. In every state, it is state law that created cities and counties and their elected officials. And criminal law is likewise state law. In its Monell decision in 1978, the Supreme Court reversed tradition and its previous decisions and declared that local governments were “persons” that could be sued under 1983. Second, the rights allegedly denied must be those “secured by the Constitution” and federal laws. Third, the rights denied must be particular to the person seeking redress in damages and injunctive relief.

Monell held that a city is liable only when the violation of rights occurred through “a policy or custom, whether made by lawmakers or those whose edicts or acts may be fairly said to represent official policy.” In its answer to the filed complaint, Seattle, cites several cases in which the plaintiffs lost because the courts ruled that the public authorities did not directly cause the alleged harm by their official actions. But the particular facts of those cases were about minor occurrences, dramatically different in importance from and not remotely approaching the comprehensive suspension of civil and criminal law by executive decision in Seattle’s autonomous zone in July. One Supreme Court decision in 1981 concerned a 1983 claim by a single prison inmate. A recent Ninth Circuit decision involved an unlawful employment termination claim by a teacher at a public charter school. In another recent Ninth Circuit decision, two people sued for unlawful arrest.

 It seems that Seattle has somewhat of a recent history of “passive” law enforcement. In its answer to the complaint, the city brings up the 2007 Ninth Circuit decision in Johnson v. City of Seattle, which dealt with a Mardi Gras weekend that became riotous, assaultive, and damaging to property. When the crowds on one night became so large, the police stepped back and did not attempt to disperse them. The eleven plaintiffs argued a generalized “life, liberty, and property” substantive-due-process violation because the police “placed them in a position of enhanced danger.” They did not allege any specific acts by the police against themselves or their property. The Circuit held that the City had not violated the plaintiffs’ 1983 rights because the police had not engaged in any “affirmative conduct” that had put the plaintiffs in a worse position than if the police had “not acted at all.” Thus, the ruling focused on the ad-hoc and on-the-spot decisions of the police.

 In the 2018 case of Hernandez v. City of San Jose, the Ninth Circuit issued an opposite ruling concerning the violence that had erupted at a campaign rally for presidential candidate Donald Trump in 2016. Alleging in a class action that police had prevented them from fleeing and then forced them into a crowd of anti-Trumpers who physically assaulted them, twenty Trump supporters alleged a due process violation of 1983 because the city had “expos[ed] them to the danger of an unruly mob” which “resulted in their injuries.” Citing Supreme Court precedents, the Circuit ruled that the police “by deliberate indifference” had caused a “state created danger” that resulted in the injuries to the plaintiffs and violated their rights under 1983. The individual San Jose police officers did not have qualified immunity, the Circuit ruled. In the related claim against the city of San Jose itself as defendant, the Circuit, in a limited jurisdictional ruling, allowed the district court’s judgment versus the city to remain in effect. The lower court had ruled that the city was liable and had “ratified” the “unconstitutional conduct of its officers.”

New lawsuits of the same kind but dealing with even more serious matters are about to occur. Two lawsuits attempting to hold the city of Seattle and the state of Washington liable for wrongful death for failing to prevent a killing that occurred in the autonomous zone have already been filed in Washington state court. The apparent plans are to turn those suits into 1983 actions in federal court.

Under a words-have-meanings analysis, the “autonomous zone” allowed to exist for three weeks outside the authority and supervision of everyday civil and criminal law was a Monell “policy” decision by the city of Seattle through its public officials. In light of past events at Mardi Gras in Seattle, it may even have been a Monell “custom.” The autonomous zone had a beginning, middle, and end. How can there be any better proof of the “affirmative” control Seattle had over the zone than its unilateral decision to end it on July 1? Whether the federal courts will allow such realism remains to be seen. Meanwhile, the Seattle effect has spread to numerous other cities.