Summer Taylor Motion for Partial Summary Judgement by The Stritmatter Firm

HONORABLE JUDITH RAMSEYER Hearing Date: July 15, 2022 at 9:15 a.m. With Oral Argument

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SUPERIOR COURT OF WASHINGTON FOR KING COUNTY The Estate of SUMMER JOLIE WILLIAMS TAYLOR, by and through MATTHEW D. TAYLOR, Personal Representative;

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Plaintiffs, v.

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PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT

CITY OF SEATTLE, a governmental entity; STATE OF WASHINGTON, a governmental entity; and, and DAWIT KELETE, a single man, Defendants.

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NO. 21-2-07115-1 SEA

I. RELIEF REQUESTED Plaintiff Estate of Summer Taylor moves for CR 56 summary judgment dismissal of Defendant State of Washington’s affirmative defense that Taylor was at fault for participating in an “illegal” protest on the evening of July 3, 2020, when the State closed I-5 to allow for First Amendment-protected George Floyd/BLM demonstrations. Because the City of Seattle incorporated by reference the affirmative defenses of the State, Plaintiff also moves to dismiss the affirmative defense as to the City.

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

Contrary to the assertions of the Defendants, under well-settled First Amendment law, the

march on July 3, 2020 was legal. For 18 nights leading up to Taylor’s death, the City and State

both allowed and facilitated demonstrators’ access to I-5, including shutting down the freeway to

traffic. The marchers were peaceful. The authorities never publicly declared the demonstration

illegal and never gave a dispersal warning to the marchers to leave or face arrest. As a result, the

marchers’ actions were sanctioned by the State and City and therefore protected by the First

Amendment. Expressive conduct that is protected by the First Amendment cannot be considered

illegal.

For the same reasons, Plaintiff also moves in limine for an order instructing the parties,

their lawyers, and their witnesses from stating, suggesting, or implying that Summer Taylor’s

actions, or the actions of the marchers in general between June 16 and July 4, 2020 were illegal. II. STATEMENT OF FACTS

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Following the police murder of George Floyd in Minneapolis on May 25, 2020, multiple

demonstrations were planned around the Seattle area and across the country. 1 The earliest large-

scale protest in Seattle was on evening of May 29, 2020, involving thousands of individuals

protesting downtown. 2 The next day protests continued, this time in the early afternoon, and a

group of those marching onto I-5 Southbound, marking the first time during the Summer of 2020

protests that protesters expressed their First Amendment rights on the freeway.

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See Ex. 1 to Declaration of Karen Koehler (hereinafter “Koehler Declaration”). Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 2. 2 See https://www.seattle.gov/documents/Departments/OIG/Policy/OIGSERWave1Report072221.pdf 1

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 2

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

A. Despite Covid restrictions, the City considered peaceful protests lawful under the First Amendment.

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Mayor Durkan is not only a lawyer - she was also the US District Attorney responsible for establishing a Consent Decree in 2011 against the Seattle Police Department. In deposition, she confirmed the legality of these protests (so long as they were not violent and or in violation of curfew):

A. …it’s not uncommon in the city of Seattle for there to be protests without permits. Q. Numerous protests, correct? A. Correct. Q. All right. Because even without a permit, people are able to lawfully protest; is that correct? A. That is correct. 3

Because of the pandemic, the issuance of permits for demonstrations had been suspended.

Under the Governor’s stay at home orders, no large groups were authorized to meet. However, it

was still lawful under the First Amendment of the Constitution to protest subject to time, place and

manner directions by the government. 4 And both Governor Inslee and Mayor Durkan resolved

that conflict in favor of free speech.

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Absent a direct order to disperse, absent a curfew and absent any looting or unlawful behavior involving safety or destruction of property, people were allowed to protest in the streets of Seattle, that was lawful. Am I correct?

Mr. Shaw: Foundation – foundation, form.

I think as you phrased it, that would be correct. 5

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See Ex. 2, Koehler Declaration. Deposition Mayor Jenny Durkan Feb. 28, 2022, p. 68:1-7. Ex. 2 at p. 240: 1-20. 5 Ex. 2 at p. 241: 15-25. 3 4

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 3

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

B. The City and State struggled to figure out how best to respond to the demonstrators

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On May 29, 2020, the Washington State Patrol (“WSP”) and Seattle Police Department (“SPD”) held their first meeting to plan for Seattle’s demonstrations. 6 The following day, approximately 2,500 demonstrators occupied I-5 near downtown Seattle, and SPD requested special assistance from the WSP’s Rapid Deployment Force to stabilize and “safely [evacuate]” north and south-bound I-5. 7 On May 30, 2020 in a meeting with the executive team, Mayor Durkan noted the subject of protests on I-5 was discussed: On May 30, it is one of the things that we noted quickly, that we – that was a factor that showed that there were more dangerous situations. Any time you have individuals entering a freeway it’s a danger to themselves, it’s a danger to the people who are driving there and then it’s a danger to the first responders who may have to come and respond to any kind of accident. So people going onto I-5 was one of the factors that occurred and, you know, the State Department of Transportation decided to shut that highway down for those purposes so that there would not be that conflict. 8

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The City through Mayor Durkan publicly acknowledged the integrity of the peaceful protest movement. 9:

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Ex. 1. Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 2. Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 3. 8 Ex. 2. Mayor Durkan deposition p. 244: 3-14. 9 See Ex. 3 to Koehler Declaration. May 30, 2020 Mayor Durkan Tweet. 6 7

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 4

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

The Mayor initially established a curfew but removed it by June 3, 2020. 10:

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C. The City and State encouraged protesters.

As the protests continued, the City acknowledged the value of the protest movement.

Mayor Durkan testified that many of the protests added momentum to the cause of BLM through

to the Legislature. 11 The Governor applauded the efforts of the protesters as well. Both leaders

publicly supported and encouraged the expression of First Amendment activity for months

throughout the historic protest movement. 12

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See Ex. 4 to Koehler Declaration. June 3, 2020, Mayor Durkan tweet. Ex. 2. Mayor Durkan deposition p. 73:10-15. 12 Even so, the City responded poorly and with excessive force. These details are being litigated in the main case and will not be described in detail here. Yet the tenor of those events set the stage for the incident here. 13 See Ex. 5 to Koehler Declaration. June 7, 2020, Mayor Durkan tweet. 10 11

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 5

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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In a public statement on June 7, 2020, Mayor Durkan said:

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See Ex.6 to Koehler Declaration. June 9, 2020 Gov. Inslee tweet. See Ex. 7 to Koehler Declaration. June 7, 2020, Mayor Durkan public statement. 16 See Ex. 8 to Koehler Declaration. June 18, 2020, Mayor Durkan tweet. 14 15

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 6

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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The Mayor announced steps to be taken as a direct result of the raising of societal consciousness by the George Floyd/BLM protest movement. These included not prosecuting any peaceful protester. 18

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See Ex. 9 to Koehler Declaration. June 28, 2020, Mayor Durkan tweet. See Ex. 10 to Koehler Declaration. June 2020 Mayor Public Statement of actions to be taken.

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 7

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

D. Defendants closed I-5 to protect demonstrators who opted to “peacefully use the freeway for making public statements.”

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On May 30, SPD activated a special “logistics section” to monitor demonstrations that may impact I-5. 19 WSP and SPD continued to staff the Seattle Police Operations Center through June 14th for issues related to I-5 demonstrations. 20 With the assistance of Defendants, peaceful demonstrators successfully protested on I-5 near downtown Seattle for 18 nights before July 3, 2020. On June 19, 2020, about two weeks into these protests, the WSP noted the problem of communication and motorists getting into the closed portions of I-5:

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On June 27, 2020, WSP Chief Batiste wrote a lengthy public statement excerpted here noting their job was to protect both motorists and the peaceful demonstrators:

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Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 7. Id., Slide 3. 20 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 7. 21 See Ex. 11 to Koehler Declaration. Email June 19, 2020 WSP Captain Ron Mead. 19 19

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 8

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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WSP stated I-5’s closure would help protect demonstrators who opted to “peacefully use the freeway for making public statements”:

[W]e are exercising the safety means possible to avoid injuries or worse to motorists, protestors, WSDOT personnel and our troopers…With no effective way of stopping large crowds from entering its lengthy borders, temporarily shutting the roadway is our best measure to avoid the dangerous mixture of freeway speed, vehicles, and pedestrians and to end the disruptions as quickly as possible. 23

Effectuating these closures included issuing notice to the public, setting up blockages, parking

patrol vehicles at some (unfortunately for Summer Taylor not all) of the freeway points of access,

and using intelligence gathering to anticipate where demonstrators were or planned to be. 24

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On the evening of July 3, 2020, for the 19th evening in a row, Defendants were aware that

protesters would be on I-5. To accommodate the demonstrators, WSP shut down I-5 South traffic

two miles before the Olive Street overpass area. 25 SPD helped with this closure by placing a car

blocking the Olive Way north Ramp. 26 This included closing the main freeway at Exit 168A, and

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See Exhibit 12 to Koehler Declaration. Statement June 27, 2020 WSP Chief Batiste re need for occasional road closures. 23 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 7 (emphasis added). 23 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 8 (emphasis added). Ex. 12, Washington State Patrol June 27th Tweet and Statement from Chief John R. Batiste on the Need for Occasional Roadway Closures. 24 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 8. 25 See Exhibit 13 to Koehler Declaration. Deposition of 30(b)6 WSP Captain Christina Martin p. 26-7: 24-9 26 Id. at p. 105: 2-15. 22

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 9

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

blocking ramps onto the freeway where protesters would be. But it did not station any cars or

create a blockade at the exit ramp of the freeway at Stewart Street.

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See Ex. 14 to Koehler Declaration. July 3-4, 2020 WSP Closure of I-5 South See Ex. 15 to Koehler Declaration. July 3-4, 2020 WSP Closure of I-5 South Entrance Ramp

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 10

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

WSP in coordination with WSDOT notified the public of the freeway closure via reader

boards over the highway and twitter. 29 Additionally, by July 3, 2020, the State acknowledged the

public was aware these freeway closures were a daily event. 30

During the late hours of July 3, 2020, a small “nightly group” of peaceful protesters had

gathered on a section of I-5 that had been closed for the demonstrations. 31 While marching to the

access point of I-5, this group of protesters encountered a possible vehicle ramming by off-duty

SPD officer Molly Clark, which required an SPD response. Neither SPD nor WSP at this time, nor

after told this group of protesters they could not enter I-5. 32

The group accessed I-5 near the Olive overpass and had protester “guard vehicles” parked

surrounding the protest across I-5. About 90 minutes into this demonstration, a vehicle driven by

Defendant Dawit Kelete entered the highway from the unblocked Stewart Street exit, made a U-

turn, bypassed the demonstrators’ blockade, and struck Summer Taylor, then 24-years-old, and

another demonstrator. 33 Mx. Taylor died later that evening. 34 Following Mx. Taylor’s death, WSP

and SPD rescinded its freeway closure plan. 35 E. Defendants now claim Summer Taylor was “illegally” present on I-5 before they were struck by a vehicle.

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Both the State and the City are trying to spin the demonstrators as acting illegally. This characterization is seen in numerous allegations and affirmative defenses Defendants pleaded or have otherwise claimed: Ex. 13 at p. 59: 4-18. Id. at p. 185: 4-16. 31 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 9. 32 Ex. 13 at p. 191:23-192:21. 33 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 9; see also Moment Summer Taylor hit by white Jaguar onto a closed freeway in Seattle, The Daily News, posted July 5, 2020 (available at https://www.youtube.com/watch?v=yl4L_SXCZAY). 34 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 9. 35 Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 10 & Slide 12. 29 30

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 11

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

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Affirmative Defense No. 11 alleges that Summer Taylor “unreasonably assumed the risk of injury by walking onto a freeway;” 36

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In responding to Plaintiffs’ allegations, Defendants contended that Summer Taylor “illegally walked onto Interstate 5 and into travel lanes of that freeway, where she was struck…” 37

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In responses to discovery requests targeted at evidence supporting their defenses, Defendants contend: “Mx. Taylor illegally walked onto Interstate 5 (I-5) and into its travel lanes…”

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In a separate response, it contended that Mx. Taylor and other organizers were engaged in “illegal conduct.” 38

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Plaintiff now moves to dismiss Defendants’ claims.

III. STATEMENT OF ISSUES

Summary Judgment should be granted as a matter of law finding that:

a. Summer Taylor was a peaceful protester exercising their guaranteed First Amendment rights at the time of their death.

b. Summer Taylor was not participating in an illegal protest at the time of their death.

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IV. EVIDENCE RELIED UPON

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These motions rely on the Declaration of Karen Koehler, the attached exhibits, and the papers and pleadings already on file.

V. ARGUMENT & AUTHORITY

Civil Rule 56 permits a party to move for summary judgment on any part of a claim or

defense. CR 56(c). It provides that judgment should be rendered “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that the moving party is entitled to a judgment

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See Dkt. 8. Defendant’s Answer, Affirmative Defense 11. Id., at Responses to Paragraphs 5.185-5.187. 38 See Ex. 16 to Koehler Declaration. Def.’s Responses to Discovery, at Response to Interrogatory No. 3, pg. 10; Response to Interrogatory No. 9, pg. 12. 36 37

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 12

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

as a matter of law.” CR 56(c). While the moving party bears the initial burden to show the absence

of an issue of material fact, after doing so, the burden shifts to the responding party to come

forward with admissible evidence creating a factual dispute. Blue Diamond Grp., Inc. v. KB Seattle

1, Inc., 163 Wn. App. 449, 453, 266 P.3d 881, 883 (2011). Washington courts acknowledge that

“summary judgment is a valuable procedure for cutting through sham claims and defenses” and

“testing the existence of a party’s evidence.” Cofer v. County of Pierce, 8 Wn. App. 258, 261-62,

505 P.2d 476 (1973).

Because Defendants’ claim about the legality of the demonstration is inaccurate, on both

the facts and the law, partial summary judgment in Plaintiff’s favor is appropriate. The march on

July 3, 2020 was protected by the First Amendment, so by definition was not illegal.

A. The Court should grant this motion and declare the July 3, 2020 demonstration was legal because peaceful marchers like Summer Taylor accessed I-5 with the facilitation and assistance of Defendants, and First Amendment protections apply.

On July 3, 2020 and in the 19 days leading up to it, the demonstrators with assistance from

the Defendants, accessed and marched across I-5 nightly. Not only did the State not take any action

to disperse or arrest the marchers on I-5, neither the City of Seattle nor the State of Washington

ever declared the protests on I-5 illegal, nor issued any dispersal orders on July 3, 2020. In fact,

the Defendants did the opposite—they actively facilitated the marchers’ access to I-5 by shutting

down traffic on the freeway. Under these circumstances, Summer Taylor’s participation in the

march on July 3, 2020, just before they were struck by a vehicle, was expressive conduct protected

by the First Amendment.

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B. The First Amendment protects a wide swath of political protest, including demonstrations like this. The First Amendment prohibits the federal or state governments from passing laws that “abridge[e] the freedom of speech … or the right of the people peaceably to assemble.” U.S. Const. PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 13

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

amend. I. This Amendment “embodies and encourages our national commitment to ‘robust

political debate,’ by protecting both free speech and associational rights.” Jones v. Parmley, 465

F.3d 46, 56 (2d Cir. 2006) (quoting Hustler Magazine v. Falwell, 485 U.S. 46, 51, 108 S.Ct. 876,

99 L.Ed.2d 41 (1988)).

Political demonstrations and protests, such as the ones in the wake of the George Floyd

killing, are “at the heart of what the Bill of Rights was designed to safeguard.” Id. The practice of

people with common views banding together to collectively express their dissatisfaction with an

unequal social structure “is deeply imbedded in the American political process.” NAACP v.

Claiborne Hardware Co., 458 U.S. 886, 907, 102 S. Ct. 3409, 3422, 73 L. Ed. 2d 1215 (1982)

(internal quotation marks and citation omitted). As the US Supreme Court has recognized,

“[e]ffective advocacy of both public and private points of view, particularly controversial ones, is

undeniably enhanced by group association,” noting “the close nexus between the freedoms of

speech and assembly.” Id. at 908 (internal quotation marks and citation omitted).

The First Amendment also “protects a significant amount of verbal criticism and challenge

directed at police officers.” City of Houston, Tex. v. Hill, 482 U.S. 451, 461, 107 S. Ct. 2502, 2509,

96 L. Ed. 2d 398 (1987). The US Supreme Court has repeatedly held that “police may not interfere

with orderly, nonviolent protests merely because they disagree with the content of the speech or

because they simply fear possible disorder.” Jones, 465 F.3d at 56 (collecting US Supreme Court

cases). Nor does a protest lose constitutional protections “merely because some members of the

group may have participated in conduct or advocated doctrine that itself is not protected.”

Claiborne Hardware Co., 458 U.S. at 908.

The authorities may step in to stop or disperse public demonstrations only where there is

“clear and present danger of riot, disorder, interference with traffic upon the public streets, or other

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

immediate threat to public safety, peace, or order, appears.” Jones, 465 F.3d at 56-57. Even where

police have a lawful basis to interfere with a demonstration, absent imminent harm, the police must

first give an order to disperse. Jones, 465 F.3d at 60. This “fair notice requirement” is essential

because it gives citizens time to conform their conduct with the law. City of Chicago v. Morales,

527 U.S. 41, 58, 119 S. Ct. 1849, 1860, 144 L. Ed. 2d 67 (1999).

Accordingly, the First Amendment protects political demonstrations, where, like here, the

protestors are peaceful and do not pose an immediate threat to public safety and order. Defendants’

claims to the contrary are belied by their own actions the evening of July 3, 2020 and in the 18

nights leading up to it. Nor can a political march be declared unlawful unless the authorities first

give a dispersal order. It is undisputed there was no dispersal order given here. The demonstrators,

including Summer Taylor, were therefore exercising their First Amendment rights lawfully on July

3, 2020.

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C. Even when a political march takes place at a nontraditional forum not generally considered public, the right to free speech and assembly is still protected by the First Amendment, where authorities expressly open a nontraditional forum for expressive conduct. The location of the expressive conduct matters for purposes of the First Amendment analysis. The US Supreme Court has said the government can place more restrictions on access to and speech in nonpublic forums. Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 797, 105 S. Ct. 3439, 3446, 87 L. Ed. 2d 567 (1985). With a traditional public forum, which are places long devoted to debate and assembly, such as streets and parks, “speakers can be excluded from a public forum only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest.” Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S. Ct. 948, 954–55, 74 L. Ed. 2d 794 (1983). By contrast, the government may limit access to a nonpublic forum “as long as the restrictions are PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 15

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

reasonable and are not an effort to suppress expression merely because public officials oppose the

speaker’s view.” Id. at 46.

While a public freeway may seem to fall into the latter category, there is a third category

of venues that better fits this situation: nonpublic property the government has opened for use for

expressive activity. See id. at 45. Where the government has intentionally opened a place for

communication, people “cannot be excluded without a compelling government interest.”

Cornelius, 473 U.S. at 800. Access does not have to be allowed on a permanent basis for

government property to be considered opened for use for expressive activity for a limited time. Id.

at 802. Inaction by the government cannot create a public forum where one did not exist; the

government must act to “intentionally open[] a nontraditional forum for public discourse.” Id.

Under its authority, that is precisely what the State did here—intentionally opened I-5 for

public discourse for a limited time each evening for 19 days. The State of Washington and the

highway authorities of counties and incorporated cities control access to the state’s roadways, with

few exceptions, in order to preserve their safety and efficacy. These authorities are expressly

permitted to “regulate, restrict, or prohibit access as to best serve the traffic for which such facility

is intended.” RCW 47.52.040.

As a result, the law provides that the Defendant and other highway authorities may permit

“ingress and egress to, from, or across” highways at “designated points…as may be specified from

time to time.” RCW 47.52.040. These authorities are likewise empowered to permit or prohibit

“the use of any such highway by funeral processions, or by parades, pedestrians, bicycles, or other

nonmotorized traffic.” RCW 46.61.160.

Thus, when the State closed the highway and permitted demonstrators like Summer Taylor

to occupy I-5, it was acting well within its authority to regulate highway access to ensure the safety

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

of uninvolved motorists and demonstrators and the efficacy of the state’s roadways. And, more

importantly, it granted demonstrators legal access and use of the closed section of the highway.

While a freeway is likely not considered a traditional public forum, the State’s actions in

permitting and facilitating the marchers’ access to I-5 turned it into a public forum subject to higher

First Amendment standards. If Summer Taylor could not lawfully be arrested for the peaceful

political protest that the State authorized and allowed, then her actions cannot be referred to as

“illegal” by Defendants.

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D. Given Defendants’ conduct in facilitating the protestors’ use of I-5, they should not be permitted to turn around and now call their actions illegal. It would be inequitable for the Court to allow Defendants to call Summer Taylor’s actions “illegal” here when they were the ones authorized by law to regulate the use of and prevent access to I-5. Not only did they not do so for 18 days prior to July 3, 2020, but Defendants also specifically helped the marchers and facilitated their access to the freeway. The US Supreme Court has held that where officials give consent for a demonstration to take place at a certain place and time, they cannot later arbitrarily revoke permission by giving a dispersal order to an otherwise peaceful protest consistent with the First Amendment. Cox v. State of La., 379 U.S. 559, 572-73, 85 S. Ct. 476, 484, 13 L. Ed. 2d 487 (1965). The US Supreme Court held it was a due process violation to do so. As the Washington Court of Appeals later explained, where a party “has reasonably relied upon affirmative assurances that certain conduct is lawful, when those assurances are given by a public officer or body charged by law with responsibility for defining permissible conduct with respect to the offense at issue,” that party has a “due process defense … grounded in ‘traditional notions of fairness inherent in our system of criminal justice.’” State v. Leavitt, 107 Wn. App. 361, 371, 27 P.3d 622, 627 (2001) (internal quotations marks and citations omitted). In Leavitt, the PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 17

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

Court of Appeals held that the defendant was denied due process when a court failed to advise he

had lost the right to possess firearms for an indefinite period, gave him a notice that said there was

a one-year firearm-possession restriction, and allowed Leavitt to leave with his concealed weapons

permit, and then arrested and convicted for illegal firearm possession. Id. at 372.

While we are not dealing with a criminal conviction here, the Defendants still want to have

their cake and eat it, too, in a way that is duplicitous and unfair. On the one hand they want credit

for assisting the demonstrators to show how progressive they are. But now they want to use their

own actions in allowing access to I-5 against Summer Taylor. The First Amendment and Due

Process Clause do not tolerate this behavior from the government, and neither should this Court.

This Court should dismiss Defendants’ affirmative defense.

E. The Court should preclude Defendants from describing the 2020 I-5 demonstrations after June 16th as “illegal” because that claim is legally improper, not relevant, and unfairly prejudicial.

This motion in limine seeks to exclude inadmissible evidence without the necessity of

objection in the presence of the jury. See In re Speight, 182 Wn.2d 103, 110, 340 P.3d 207 (2014);

State v. Koloske, 100 Wn.2d 889, 896, 676 P.2d 456 (1984). Decisions on motions in limine are

within the sound discretion of the trial court, subject to review only for an abuse of discretion.

Fenimore v. Drake Const. Co., 87 Wn.2d 85, 91, 549 P.2d 483 (1976); Gammon v. Clark Equip.

Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984). The authority to decide these motions is based

on the Court’s longstanding inherent powers to exclude evidence that is irrelevant or unduly

prejudicial. Sturgeon v. Celotex Corp., 52 Wn. App. 609, 620, 762 P.2d 1156 (1988) (recognizing

that Washington courts have allowed such motions for over 70 years).

Plaintiffs respectfully ask this Court to enter an order directing the parties, their witnesses,

and attorneys not to directly or indirectly characterize Summer Taylor’s actions or the

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STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

demonstration more generally as “illegal.” Mx. Taylor participated in the occupation of I-5 after

June 27th—after the State sanctioned pedestrian use of the highway for demonstrators who opted

to “peacefully use the freeway for making public statements.” 39 Because any characterization of

the demonstration where Mx. Taylor died as “illegal” is legally incorrect, it cannot be considered

relevant under Evidence Rule 401 and must be excluded.

Moreover, any attempt to characterize Mx. Taylor as a criminal or law-breaker after June

27th is plainly designed to invite the jury to decide the case on an improper basis, such as emotion.

ER 403. Defendant’s attempt to convict Mx. Taylor of a crime after their death without a trial is

an obvious strategy to stigmatize Mx. Taylor before the jury and nullify the Defendant’s conduct.

This Court should not permit this misleading strategy. F. CONCLUSION

11 12

For the reasons above, this Court should grant partial summary judgment and dismiss

Defendant’s claim that Summer Taylor was killed during an “illegal protest,” their conduct was

“illegal,” or the demonstrators in general were otherwise engaged in “illegal conduct” at the time

of Mx. Taylor’s death. Similarly, the Court should preclude the Defendant, its witnesses, and its

attorneys from improperly describing or implying the demonstration or Mx. Taylor’s conduct as

illegal under ER 401.

18 I certify that this memorandum contains 4,643 words, in compliance with the Local Civil Rules

19 20 21 22 23 24

Ex. 1, Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 7. Id. Washington State Patrol Rapid Deployment Force, District 2 Protests & Riots, May – July 2020, Slide 8 (emphasis added). Ex. 12, Washington State Patrol June 27th Tweet and Statement from Chief John R. Batiste on the Need for Occasional Roadway Closures. 39 39

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 19

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

1 2

DATED this 17th day of June, 2022.

STRITMATTER KESSLER KOEHLER MOORE

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Karen K. Koehler, WSBA#15325 Lisa Benedetti, WSBA#43194 Gemma N. Zanowski, WSBA#43259 Furhad Sultani, WSBA#58778 Counsel for Plaintiffs

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 20

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

CERTIFICATION I hereby certify that on June 17, 2022, I delivered a copy of the document to which this certification is attached for delivery to all counsel of record as follows: Defendant State of Washington Steve Puz, WSBA #17407 Scott A. Marlow, WSBA #25987 7141 Cleanwater Drive SW PO Box 40126 Olympia, WA 98504-0126 steve.puz@atg.wa.gov scott.marlow@atg.wa.gov Geoffrey.allik@atg.wa.gov Shaunna.Carter@atg.wa.gov Autumn.Nguyen@atg.wa.gov TOROlyEF@atg.wa.gov Defendant City of Seattle Ghazal Sharifi, WSBA #47750 Joseph Groshong, WSBA #41593 Rebecca Widen, WSBA #57339 Seattle City Attorney’s Office 701 Fifth Avenue, Suite 2050 Seattle, WA 98104 joseph.Groshong@seattle.gov ghazal.sharifi@seattle.gov Rebecca.widen@seattle.gov tamara.stafford@seattle.gov marisa.johnson@seattle.gov kelly.nakata@seattle.gov daviana.kadiyan@seattle.gov & Mark S. Filipini, WSBA #32501 Michael D. McKay, WSBA #7040 Martha J. Dawson, WSBA #11795 G. William Shaw, WSBA #8573 Ryan Groshong, WSBA #44133 Kari L. Vander Stoep, WSBA #35923 K&L Gates LLP 925 Fourth Avenue, Suite 2900 Seattle, WA 98104-1158 mark.filipini@klgates.com mike.mckay@klgates.com

U.S. Mail Fax Legal messenger Electronic Delivery (via KCSC Efiling/email delivery)

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 21

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777

1 2 3 4

martha.dawson@klgates.com bill.shaw@klgates.com ryan.groshong@klgates.com ben.woodruff@klgates.com trudy.tessaro@klgates.com ivan.ascott@klgates.com sabrina.mitchell@klgates.com

5 6 7 8 9 10

s/ Kristin Michaud Kristin Michaud Paralegal

11 12 13 14 15 16 17 18 19 20 21 22 23 24 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT - 22

STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, Ste. 300 Seattle, WA 98119 Tel: 206.448.1777