HONORABLE JUDITH RAMSEYER
HEARING DATE: APRIL 14, 2023
HEARING TIME: 10:30 A.M.
TRIAL DATE: OCTOBER 16, 2023
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR THE COUNTY OF KING
The Estate of SUMMER JOLIE WILLIAMS TAYLOR, by and through MATTHEW D. TAYLOR, Personal Representative, ZOE ADBERG, SARA ANDERSON, MEGAN BUSS, GRACE CARMACK, LEANNA CARR, AISLING COONEY, ABIE EKENEZAR, EDWARD FARMER, NIMA FORGHANI, NOAH FOWLER, ZACHARY GARDNER, IAN GOLASH, GRACE GREGSON, MIRANDA HARDY, LEXUS HARTLEY, CLAYTON HOLLOBAUGH, JASON SCHIERER as guardian ad litem for minor MALICHI HOWE a.k.a. BRYAUNA HOWE, JESSE HUGHEY, AUBREANNA INDA, MARY JURGENSEN, TIMOTHY KAUCHAK, JOHN W. KELLIHER, JENNA KINYON, BEN KOENIGSBERG, JACOB KOENIGSBERG, SETH KRAMER, ERIC LOOK, DANIEL LUGO, JACOB MARTIN, JOSHUA MATNEY, CHLOE MERINO, LOGAN MILLER, TONI MILLS, ALESSANDRA MOWRY, KELSEY MURPHY-DUFORD, WESLEY PEACOCK, JORDAN A. PICKETT, CHARLES PIERCE, DANIEL PIERCE, CONOR POULL, RENEE RAKETTY, JAVIER RIZO, ALEXANDER RUEDEMANN, MICHAUD SAVAGE, CAROLYN STERNER, SEAN SWANSON, MEGHAN THOMPSON, BRUCE TOM, TIFFANY VERGARA-MADDEN, ALIYE VOLKAN, STEVEN WIDMAYER, JOSEPH WIESER, GILLIAN WILLIAMS, QUINN ZOSCHKE, and DOES 1-40,
Plaintiffs,
No. 20-2-14351-1 SEA
MOTION FOR SUMMARY JUDGMENT REGARDING
PLAINTIFF ZACHARY GARDNER’S CLAIMS
CITY OF SEATTLE, a governmental entity, Defendant.
I. INTRODUCTION AND RELIEF REQUESTED
On July 25, 2020, protesters set fire to trailers at the King County Youth Services Center, broke into and attempted to start another fire at a Starbucks underneath an apartment complex, and used an explosive device to blow a hole in the wall of the Seattle Police Department’s East Precinct. Based on these and other significant threats to public safety, SPD declared a riot and ordered the assembled crowd near the East Precinct to disperse. SPD officers cleared the area near the East Precinct multiple times. Nonetheless, the assembled crowd continued to follow them back to the Precinct. Hours after the first dispersal order, a large crowd of protesters advanced on a line of police officers as the officers walked backwards towards the East Precinct. Plaintiff Zachary Gardner was at the front of the crowd.
Plaintiffs’ Third Amended Complaint claims that Plaintiff Gardner was a “peaceful protester” who was attempting to “have conversations” with police officers in the moments before he was injured. This version of events, however, is wholly unsupported by the undisputed facts. As contemporaneous video footage shows, at the time Plaintiff Gardner was allegedly injured, he was using a noisy leaf blower to redirect chemical irritants at police officers. To prevent Plaintiff Gardner from continuing to assault officers, SWAT Officer Carl Anderson struck Plaintiff Gardner with one round from a foam-tipped less lethal impact munition.
Plaintiff Gardner alleges various claims arising out of his interactions with SPD on May 30 and July 25, 2020. The undisputed material facts show that the City is entitled to summary judgment. The City therefore respectfully requests that Plaintiff Gardner’s claims be dismissed in their entirety.
The City respectfully requests that Plaintiff Gardner’s claims be dismissed in their entirety.
II. STATEMENT OF FACTS
A. May 30, 2020: “It was Chaos”
Following the murder of George Floyd in May 2020, protests erupted across the country, including in Minneapolis, where individuals set fire to a police precinct. Declaration of Todd Kibbee (“Kibbee”), filed herewith, ¶ 2. On May 29, the first major protests in Seattle occurred downtown. Though protests during the day were largely non-violent, protesters engaged in assaults against police officers and significant property damage at night. Id.
In anticipation of significant protest events downtown on May 30, Assistant Chief Todd Kibbee was assigned to serve as Incident Commander. At the time of the protests, Chief Kibbee had been an SPD officer for nearly 30 years and had had command responsibilities for over 100 protests and special events. Kibbee ¶ 3. As he informed the officers assigned to monitor the protests at a 10 a.m. roll call briefing, SPD’s mission for the day was to facilitate peaceful protest, enforce the law, and preserve order. Kibbee ¶ 4.
1. Threats to Public Safety
Protests began with a peaceful gathering outside SPD headquarters at approximately 1:00 p.m. Kibbee ¶ 5. Shortly thereafter, however, safety conditions began to deteriorate. Chief Kibbee initially heard reports over the radio of an individual throwing water bottles at officers on 4th and Blanchard, followed quickly by reports that crowd members were throwing full soda cans at officers at the same intersection. Id. At 2 p.m., another officer reported a group of individuals breaking windows at 5th and Marion. Chief Kibbee activated SPD’s patrol task force to bring additional officers to deal with the crowd of approximately 5,000 individuals. Id.
As the day continued, the situation descended further into chaos and violence. Widespread safety threats included the following:
• Especially within the Pike/Pine corridor, crowd members threw rocks, bottles, and other projectiles at police officers. Kibbee ¶ 6. Even when officers attempted to retreat and
minimize confrontation, protesters appeared emboldened and continued throwing projectiles at the officers on the scene. Id.
• An individual used an aerosol can and lighter to set SPD vehicles on fire in the vicinity of 5th and Pine. Kibbee ¶ 7. Another individual threw Molotov cocktails at police vehicles. Id. Because of the size and violent activities of the crowds, Seattle Fire Department personnel could not initially access the fires, which threatened numerous nearby buildings, including Pacific Place. Id.
• Individuals stole multiple high-powered rifles from SPD vehicles. Kibbee ¶ 8.
• At a protest outside SPD headquarters, individuals threw rocks, bottles, and accelerants at the building. Kibbee ¶ 9.
In addition to these serious safety risks, looting was rampant. Kibbee ¶ 10. Protesters looted and otherwise vandalized stores throughout downtown. Id. SPD arrested approximately 40 individuals for burglary on May 30. Id.
In deposition testimony, other Plaintiffs have themselves noted the safety and public order risks on May 30. For instance, Plaintiff Tim Kauchak testified that he saw “a lot of looting” downtown, describing the situation as “a riot,” “pretty wild,” and “chaos.” Kauchak Dep. 90:16-92:8; 110:8-16. 1 Mr. Kauchak described “see[ing] people running down the street with armloads of merchandise, whatever they could just grab.” Kauchak Dep. 94:4-15. In one instance, an individual tried to steal a walking stick Mr. Kauchak carried “to use it to break a window.” Kauchak Dep. 91:16-92:8. Plaintiff Abie Ekenezar captured video of a police car burning in downtown as the nearby crowd cheered. Groshong Ex. D. Mx. Ekenezar testified that they were concerned about public safety, stating that seeing flames and smoke emanating
1 Cited portions of the depositions of several plaintiffs in this litigation are attached as Exhibits to the Declaration of Ryan Groshong (“Groshong”), filed herewith. The depositions are cited herein as “[Plaintiff Name] Dep.” Cited portions from Plaintiff Timothy Kauchak’s deposition are attached as Exhibit C to the Groshong Declaration.
from a police vehicle was “upsetting,” “scary,” and “shocking.” Ekenezar Dep. 93:16-95:15 2; see also Wieser Dep. 45:23-46:14 3 (Plaintiff Wieser describing seeing looting at Nordstrom on May 30); Groshong Ex. G (photograph taken by Plaintiff Daniel Lugo of burning SPD car on May 30)
Following consultation with then Chief Carmen Best, Chief Kibbee declared the situation to be a riot at approximately 4 p.m. Kibbee ¶ 11. The crowd’s size and violent tactics made it difficult to separate individuals engaging in unlawful behavior. Id. Moreover, the massive size of the crowds (estimated at over 10,000 at their peak) made it significantly more difficult to create time, distance, and space by moving the crowd to another area. Id. In addition to the staggering property damage, the sustained and widespread violence against police was the worst Chief Kibbee had seen in nearly 30 years with SPD. Id. Due to the ongoing violence, arsons, property damage, and attempts to damage police facilities, Chief Kibbee authorized the use of CS gas by SWAT officers. Id. 4
At 4:27 p.m., SPD issued a global request for mutual aid to all local law enforcement agencies. Id. Half an hour later, Mayor Jenny Durkan issued a Proclamation of Civil Emergency and associated emergency orders, stating:
[D]uring the demonstrations in Seattle on May 30, 2020, Seattle Police Officers were assaulted with rocks, bottles, and other projectiles, Seattle Police Patrol cars were set on fire, a Seattle Police rifle [was] stolen from a police car and fired, hundreds of demonstrators marched down I5, shutting it down for vehicular traffic, Molotov cocktails were made and objects thrown at Seattle Police HQ that smelled of accelerant, followed by flares[.]
Kibbee Ex. A. Mayor Durkan further declared a general curfew in the City commencing at 5:00
2 Cited portions of Plaintiff Abie Ekenezar’s deposition are attached as Exhibit E to the Groshong Declaration.
3 Cited portions of Plaintiff Joseph Wieser’s deposition are attached as Exhibit F to the Groshong Declaration.
4 CS gas is commonly referred to as “tear gas.” In the weeks following the murder of George Floyd, police departments nationwide deployed CS gas in response to outbreaks of violence at protest events. Kibbee ¶12.
p.m. Kibbee Ex. B. Governor Inslee mobilized the National Guard to assist with restoring safety downtown. Kibbee ¶ 11.
2. Plaintiff Gardner’s Allegations
Sometime after 12 p.m. on May 30, Plaintiff Gardner left his apartment to attend a protest downtown. Gardner Dep. 114:4-10. 5 Plaintiff Gardner carried with him a bag filled with medical supplies, including baking soda and saline solution to “assist people who possibly were going to be experiencing pepper spray.” Gardner Dep. 115:17-116:6. He “absolutely” believed there was a risk he may be exposed to pepper spray and tear gas. Id. Plaintiff Gardner arrived downtown sometime between 12:30 and 2 p.m. Gardner Dep. 116:17-25. He was unable to reach Westlake Center and heard “flash bangs” going off. Gardner Dep. 117:1-16.
While downtown, Plaintiff Gardner saw “black smoke” rising into the air and “heard people screaming about somebody having a gun.” Gardner Dep. 134:14-135:5. He also saw people “very obviously running with things in their hands” and therefore “made the assumption that they obviously were vandalizing and running out of stores with things.” See Gardner Dep. 137:14-138:10; Groshong Ex. H (Instagram post in which Plaintiff Gardner describes “white opportunists . . . smashing cruiser windows and setting fires”).
Plaintiff Gardner alleges that approximately 30 minutes after he arrived, he observed officers deploy two CS gas canisters with launchers from “50 to 100 yards” away. Gardner Dep. 128:1-129:16. It took up to just under five minutes after the deployment for Plaintiff Gardner to feel any effects from the CS gas. Gardner Dep. 122:18-23. Plaintiff Gardner claims to have not heard any dispersal orders or warnings, but admits that the deploying officers “were too far away from me for me to hear if they were announcing a dispersal order or warning people that they were going to use tear gas.” Gardner Dep.123:9-23. Plaintiff Gardner further could not see what was happening in the area in which the officers deployed CS gas. Gardner Dep. 128:21-25.
5 Cited portions of Plaintiff Gardner’s deposition are attached as Exhibit B to the Groshong Declaration.
Plaintiff Gardner “did not consider” leaving the protest and remained in the same area for another two hours. Gardner Dep. 131:18-132:5. He never sought medical treatment for symptoms associated with CS gas exposure. Gardner Dep. 143:3-5.
B. July 25, 2020: “Don’t Give SPD an Inch . . . Keep Them Scared”
Prior to the July 25 demonstration in the Capitol Hill area, SPD received intelligence that individuals were driving to Seattle from California and Portland, bringing explosives and radios with them in a van. Declaration of John Brooks (“Brooks”), filed herewith, ¶ 5. The intelligence indicated that they planned to cache the explosives in various locations in Seattle so that they could be more easily accessed during the July 25 demonstration. Id. A flyer advertising the event, which Plaintiff Gardner said “look[ed] familiar” and was posted to a social media account he followed, advertised the protest as a “Solidarity with PDX” event. Gardner Dep. 146:6-21; Groshong Ex. I. The flyer featured an image of an SPD vehicle in flames and the phrases “don’t give SPD an inch” and “keep them scared.” Groshong Ex. I.
SPD Captain John Brooks served as the Deputy Operations Section Chief for the protest. Brooks ¶ 4. In this capacity, he was responsible for directing all of SPD’s resources. Brooks ¶ 7. Captain Brooks has responded to civil disturbances and crowd management events throughout his over 30-year career with SPD and authored SPD’s Integrated Crowd Management Manual. Brooks ¶ 2. Due to his experience as a bike officer and familiarity with managing demonstrations, Captain Brooks has been the incident commander or operations section chief for a significant number of major demonstrations and events. Brooks ¶ 3.
As on May 30, SPD’s mission for July 25 was to keep people safe, enforce the law, and preserve order. Brooks ¶ 4. In order to reduce the potential for conflict, SPD planned to utilize time, distance, and barriers. Id. At roll call, Captain Brooks instructed the officers that they were not to use less lethal tools against people engaged in peaceful protest. He further stated that they were only to use such tools to protect against a specific imminent threat of physical harm to
themselves or identifiable others, or to respond to specific acts of violence or destruction of property. Brooks ¶ 6.
1. Threats to Public Safety
At approximately 1:30 p.m., Captain Brooks observed a crowd of 5,000 to 7,000 people gathered at Seattle Central College. Brooks ¶ 7. Some of the individuals carried large sticks, baseball bats, and poles. Id. Though the initial march was relatively uneventful, at approximately 3:45 p.m., SPD received reports that protesters had started a fire at the King County Youth Services Center and were breaking car windows in the parking lot. Id. Captain Brooks responded and observed five construction trailers that had been set on fire. Id. Due to the size of the crowd and safety concerns, Seattle Fire Department members required SWAT protection as they extinguished the fire. Id.
As the crowd moved north from the Youth Services Center, 6 SPD received a report that protesters had vandalized the Starbucks at 12th and Columbia. Brooks ¶ 8. Protesters smashed the store’s windows, and smoke was reportedly emanating from inside. Id. SPD was extremely concerned with this development, as there is an occupied apartment building directly above this Starbucks. Id. The building was reportedly evacuated out of concern for the tenants’ safety. Id. Captain Brooks proceeded to the East Precinct while continuing to receive reports of crowd members committing property damage and violence. Brooks ¶ 9. Upon arrival near the Precinct, Captain Brooks observed that the crowd had surrounded the building. He saw members of the crowd throwing rocks and bottles at the north side of the building, and climbing the fence outside the Precinct in an apparent attempt to gain access to the building. Id. Captain Brooks also received a report that someone had “shot” something through the precinct wall and observed smoke from something flammable in the same area. Id. SPD subsequently determined that a device had exploded against the Precinct, creating an eight-inch hole in the exterior wall and a five-inch hole in the interior wall. Id.; Brooks Ex. A. At the time of the explosion, there were a
significant number of SPD officers inside the building. Brooks ¶ 9. The East Precinct is surrounded by a number of other residential and commercial buildings. Id.
Based upon the life safety emergency circumstances, Captain Brooks declared that the demonstration was a riot and authorized the use of less lethal tools, including sponge-tipped impact munitions, to address assaults on officers from the crowd. Brooks ¶ 10. SPD issued repeated dispersal orders directing the crowd members to leave the area, along with continuous commands to move back. Id. SPD utilized bicycle and line officers to move the crowd west toward Broadway. Id. By keeping the crowd moving, SPD attempts to prevent those individuals who are committing violent acts from having an opportunity to stage and plan. Id. After moving the crowd to Broadway, Captain Brooks ordered officers to regroup at the intersection of 11th and Pine. Id. Despite SPD’s orders to disperse, protesters advanced on the officers as they walked back towards the precinct, throwing rocks, bottles, bricks, and explosives at the withdrawing officers. Id.
Throughout the day, crowd members’ use of umbrellas, shields, protective clothing, lights, smoke, and lasers all made it difficult for officers to identify, safely approach, and arrest individuals for crimes. Brooks ¶ 11. SPD also observed protesters training in and employing dearrest tactics that attempt to thwart officers once they are able to approach a suspect. Id. The group trains to grab the offender and pull them away from officers to defeat the arrest. Id. This common tactic creates substantial officer safety issues. Id. Often those attempting to de-arrest a suspect will push, pull, or even strike officers as they attempt to make an arrest. Id. To make an arrest in a congested protest, with large numbers of people limiting an officer’s ability to move, it is often necessary to assemble large groups of officers to move in a coordinated way to enter the crowd and make an arrest. Id. This takes time, must be planned, and can only be executed when the event is relatively static. Id.
Multiple Plaintiffs participated in de-arrest trainings on July 25th. Plaintiff Daniel Lugo testified that at Seattle Central College, “people with the microphones” required the “whole
crowd” to participate in “de-arrest education.” Lugo Dep. 123:1-124:9. 7 As part of this education, Mr. Lugo and other crowd members worked on “[i]dentifying when an arrest would occur” and “ways to prevent that arrest.” Id. Mr. Lugo explained that “if somebody is grabbed by a police officer, you just also grab them, and then the crowd grabs you.” Id. Plaintiff Joshua Matney likewise heard individuals talking about “police tactics, what to be aware of, [and] how to know when they were planning for an arrest.” Matney Dep. 54:10-55:2. 8 Mr. Matney “acted as a stand-in for someone who was being arrested for one of those demonstrations.” Id.
As with May 30, Plaintiffs have likewise testified regarding dangerous conditions in the Capitol Hill area on July 25. Plaintiff Wieser recalled hearing crowd members chant “I don’t see shit; I don’t know shit” as smoke rose from the Youth Services Center. Wieser Dep. 158:15159:20. Plaintiff Renee Raketty, a local journalist, saw “very thick, very black” smoke at the Youth Services Center from two blocks away. Raketty Dep. 46:8-47:13. 9 In a Facebook post on July 25, she posted photographs of the scene with a note that “[t]he site of new construction was set ablaze, windows broken out, and cars in the parking lot were damaged.” Groshong Ex. M.
As she walked north on 12th Avenue from the Youth Services Center, Ms. Raketty remembered seeing “a lot of smoke” and “a lot of broken windows” at the Starbucks on 12th and Columbia underneath the apartment building. Raketty Dep. 64:2-65:15. She posted photographs of the vandalized Starbucks on Facebook with a note that “[a] number of businesses were vandalized in the Capitol Hill neighborhood of Seattle on Saturday.” Groshong Ex. N. Ms. Raketty acknowledged that there were “bad actors for sure” in the protest crowd that day. Raketty Dep. 70:16-24.
7 Cited portions from Plaintiff Daniel Lugo’s deposition are attached as Exhibit J to the Groshong Declaration.
8 Cited portions of Plaintiff Joshua Matney’s deposition are attached as Exhibit K to the Groshong Declaration.
9 Cited portions of Plaintiff Renee Raketty’s deposition are attached as Exhibit L to the Groshong Declaration.
Plaintiff Roxy Ruedemann likewise wrote in a journal entry that they observed a fire at the Youth Services Center before walking north towards the East Precinct. Ruedemann Dep. 61:12-62:6. 10 Upon arrival at the East Precinct, Mx. Ruedemann observed individuals throwing rocks at the building and trying to tear down the fencing on the perimeter of the building. Ruedemann Dep. 62:16-63:14. Subsequently, Mx. Ruedemann observed an individual throw a firework or smoke grenade at the Precinct. Ruedemann Dep. 63:23-64:6. Mx. Ruedemann further admits that they heard police issue a dispersal order directing protesters to “cease and desist” and leave the area. Ruedemann Dep. 47:24-49:11.
2. Plaintiff Gardner’s Allegations
Plaintiff Gardner attended the July 25 protest as a member of the “bike brigade.” Gardner Dep. 145:11-146:2. As a member of the bike brigade, Plaintiff Gardner aimed to “protect protesters who might possibly be injured by car attacks as well as directing people around the protests to ensure we can continue the march.” Gardner Dep. 160:1-161:7. Despite seeing a trailer on fire at the Youth Services Center and hearing windows being broken, Plaintiff Gardner elected to remain at the protest because he believes his “responsibility to protect protesters doesn’t change just because a couple of individuals decide to be more aggressive than others believe they should be.” Id.
Approximately “an hour or two” before his injury, Plaintiff Gardner left his bike in a “friend’s van” and retrieved a leaf blower from the same van. Gardner Dep. 172:2-23, 175:23176:4. Hours after SPD had issued multiple dispersal orders, repeatedly instructed the crowd to move back, and twice dispersed the crowd from 11th and Pine to Broadway, Plaintiff Gardner situated himself at the front of a crowd of protesters. He wore a gas mask and operated the leaf blower, gradually advancing on officers as they walked backwards towards 11th Avenue.
Declaration of Carl Anderson (“Anderson”), filed herewith, ¶ 6; see Declaration of Martha
10 Cited portions of Plaintiff Roxy Ruedemann’s deposition are attached as Exhibit O to the Groshong Declaration.
Dawson (“Dawson”), filed herewith, Ex. B. Contemporaneous body worn video shows Mr. Gardner in the front of the crowd for over two blocks, intermittently operating his leaf blower for nearly ten minutes prior to his alleged injury. 11 See Dawson Ex. B. In the minutes before Plaintiff Gardner’s alleged injury, one protester can be heard stating “the only good cop is a dead cop.” See id. at 3:30.
Plaintiff Gardner testified that his purpose in using his leaf blower was to “help protesters from having to deal with tear gas and pepper spray.” Gardner Dep. 173:2-175:12. Based on internet research, Plaintiff Gardner learned that leaf blowers could be used to “minimize the amount of tear gas exposure protesters face.” Id. Noting his understanding that tear gas “sits on the ground,” Plaintiff Gardner stated that a leaf blower allows a user to “disperse it more quickly.” Id. Though SPD did not use CS gas on July 25, oleoresin capsicum powder lingered on the ground from prior blast ball deployments. Anderson ¶ 7. Oleoresin capsicum is the active ingredient in pepper spray. Id
Plaintiff Gardner initially testified that he never used his leaf blower to spray dust at police officers, claiming that it was “never [his] intention to blow it at police officers.” Gardner Dep. 175:13-19. Just minutes later, however, he admitted this was false, conceding that SPD body worn video showed him “crouched down with [his] leaf blower and [blowing] debris and dust toward the police officer.” Gardner Dep. 198:11-199:7. As Plaintiff Gardner admits and contemporaneous body worn video footage unambiguously shows, Plaintiff Gardner used his leaf blower to spray SPD officers with debris from the ground, which included dust from prior deployments of pepper spray. Groshong Ex. A.
The size of the crowd and violent nature of the event rendered it neither safe nor feasible for SPD to enter the crowd to arrest Plaintiff Gardner. Anderson ¶ 7. Thus, seconds after one instance in which Plaintiff Gardner sprayed officers with debris and dust with the leaf blower, SWAT Officer Carl Anderson deployed one round from a 40mm multi-launcher, striking
11 The sound of a leaf blower is intermittently audible throughout the footage, as well.
Plaintiff Gardner in the abdomen. 12 Id.; Groshong Ex. A. Officer Anderson’s purpose in doing so was to prevent Plaintiff Gardner from continuing to redirect dispersed OC powder or other particulates at officers. Anderson ¶ 7.
Officer Anderson elected to use the 40mm multi-launcher so that the use of force would be specifically targeted and not affect any other crowd members. Anderson ¶ 8. Consistent with his training, Officer Anderson deployed the impact round from approximately 15 feet away from Plaintiff Gardner. Id. Although Officer Anderson aimed for Plaintiff Gardner’s thigh region, SPD’s 40 mm training identifies the abdomen as a permissible target. Id. As a member of SWAT, Officer Anderson is trained and certified to operate the 40mm multi-launcher. Anderson ¶ 2. Following this incident, Plaintiff Gardner had dinner with his wife and returned to the protest later that evening. Gardner Dep. 190:7-11.
III. EVIDENCE RELIED UPON
The City relies upon the Declarations of Carl Anderson, John Brooks, Ryan Groshong, Todd Kibbee, and Martha Dawson; the exhibits attached thereto; and the pleadings and papers on file with the Court.
IV. AUTHORITY AND ARGUMENT
A. Summary Judgment Standard
Summary judgment is properly granted where “there is no genuine issue as to any material fact and … the moving party is entitled to a judgment as a matter of law.” CR 56(c). If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party’s claim, on which the party would bear the burden of proof at trial, then the trial court should grant the motion. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). This result follows because “[w]here proof of an essential element of a claim is
12 A
lacking, all other facts are rendered immaterial.” Shields v. Morgan Fin., Inc., 130 Wn. App. 750, 758, 125 P.3d 164 (2005).
After the moving party meets its initial burden, “the [plaintiff] cannot rely on the allegations made in its pleadings.” Young, 112 Wn.2d at 225. Rather, the plaintiff “by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Id. at 225-26 (citing CR 56(e)).
B. Plaintiff’s Negligence Claims Should Be Dismissed.
Plaintiff Gardner’s negligence claim should be dismissed because the SPD conduct at issue was objectively reasonable, and Plaintiff Gardner voluntarily assumed the risk that he would be injured.
a. SPD Did Not Breach Any Duty Owed to Plaintiff Gardner
To succeed on his negligence claim, Plaintiff Gardner must establish (1) that the City owed him a duty (2) that it breached (3) resulting in injury (4) proximately caused by that breach. See Wuthrich v. King County, 185 Wn.2d 19, 25, 366 P.3d 926 (2016). A law enforcement officer owes a legal duty to exercise reasonable care when engaged in direct interactions with others. See Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 552, 442 P.3d 608 (2019); Estate of Heath v. Pierce County, No. 3:19-cv-06119-RJB, 2021 WL 2682513, at *8 (W.D. Wash. Jun. 30, 2021) (holding that a law enforcement officer “owed a duty specific to [plaintiff,] as a person with whom he had a specific and direct interaction”).
In Beltran-Serrano, the Washington Supreme Court held that a plaintiff could assert negligence claims against a law enforcement officer arising out of the totality of the interaction between the plaintiff and the officer that led to the plaintiff’s alleged injury. The interaction at issue in Beltran-Serrano, as described by the Supreme Court, is worth quoting at length:
As Officer Volk approached Beltran-Serrano, he laid down on his stomach and started digging in a hole. Officer Volk greeted Beltran-Serrano, but he looked up at her blankly and kept digging in the hole. Noticing that the hole contained mainly garbage, Officer Volk observed Beltran-Serrano pull out an old soda container, take
a drink, and throw it back in the hole. When Officer Volk asked Beltran-Serrano if he understood English, he shook his head no. Officer Volk then radioed for a Spanish-speaking officer. Officer Jake Gutierrez, who spoke Spanish, was within one and a half to five minutes away.
Instead of waiting for Officer Gutierrez to arrive, Officer Volk attempted to engage Beltran-Serrano in conversation; he was nonresponsive. She attempted to get Beltran-Serrano to produce identification, gesturing to indicate she wanted to see an ID card. Beltran-Serrano began to pat his pockets as if to look for identification, but then he bent down and reached back into the hole. When Officer Volk moved closer to Beltran-Serrano and continued to address him in English, he became scared and started to run away. Officer Volk shot him in the back with a stun gun as he ran across the street. The stun gun did not have the desired effect, and BeltranSerrano continued to run away. Officer Volk then pulled out her duty weapon and fired multiple shots until Beltran-Serrano fell to the ground. The total time between when Officer Volk called for a Spanish-speaking officer and the shooting was 37 seconds.
Id. at 540-42 (internal citations omitted). On these facts, the Court held that the plaintiff could maintain a negligence claim based on the officer’s “alleged failure to use ordinary care to avoid unreasonably escalating the encounter to the use of deadly force.” Id. at 540. Citing favorably to cases from the D.C. Circuit and California Supreme Court, the Court stated that “[t]he series of actions culminating in the use of … force may be analyzed in its constituent parts or, alternatively, as involving either negligent or intentional conduct.” Id. at 545-46 (citing District of Columbia v. Chinn, 839 A.2d 701, 710 (D.C. 2003), and Hayes v. County of San Diego, 57 Cal. 4th 622, 626, 305 P.3d 252, 160 Cal. Rptr. 3d 684 (2013)).
Similarly, in Mancini v. City of Tacoma, the Washington Supreme Court held that a plaintiff could allege that officers had failed to use reasonable care when detaining her while executing a warrant. See 196 Wn.2d at 883. In Mancini, eight officers knocked on the plaintiff’s door. After waiting only 20 to 30 seconds with no response, they broke open the door and entered plaintiff’s apartment with guns drawn. Id. at 871-72. The plaintiff came out of her bedroom in her nightgown to a “‘sea of . . . men in black’ with guns pointed at her.” Id. An officer pushed her to the ground, handcuffed her, and took her outside after denying her request
to put shoes on. Id. The plaintiff estimated that she was made to stand outside in handcuffs for “about 15 minutes” while officers conducted a search before the officers determined that they had the wrong apartment. Id. The suspect the officers were seeking did not live in the apartment and, in fact, lived in a different building. Id.
The Court held that the plaintiff could sustain a negligence claim on these facts because a “rational juror could have found that police breached the door unreasonably quickly after knocking and receiving no response, that police took an unreasonable amount of time to realize they had the wrong apartment, that the police unreasonably continued their search of Mancini’s apartment after realizing they had hit the wrong door, or that the police unreasonably left Mancini handcuffed long after realizing she had no relation to their suspect—or any combination of these facts.” Id. at 886-87.
While there is limited Washington case law addressing the scope of an officer’s duty for purposes of a negligence claim, Beltran-Serrano and Mancini make clear that any negligence claim is limited to the conduct of the officer(s) that directly interacted with the plaintiff. This requirement is further supported by the case law cited favorably in Beltran-Serrano. In Hayes v. County of San Diego, the California Supreme Court held that “[l]aw enforcement personnel’s tactical conduct and decisions preceding the use of deadly force are relevant considerations under California law in determining whether the use of deadly force gives rise to negligence liability. Such liability can arise, for example, if the tactical conduct and decisions show, as part of the totality of circumstances, that the use of deadly force was unreasonable.” Hayes, 305 P.3d at 263. In Hayes, the “tactical conduct and decisions” referred to by the Court were those of the officers who directly interacted with the plaintiff. See id. at 262 (listing a variety of actions taken by the officers that used force that could support a negligence claim, including their “decision not to call for a psychiatric expert before entering” the plaintiff’s house, their “decision to enter the house,” and their “decision to speak to” the plaintiff).
Indeed, more recently, the California Court of Appeals expressly declined to extend this negligence analysis to the conduct of officers not directly involved in the ultimate use of force.
See Koussaya v. City of Stockton, 54 Cal. App. 5th 909, 268 Cal. Rptr. 3d 741 (Cal. Ct. App. 2020). In Koussaya, the plaintiff, a hostage taken during a robbery, argued that the “combined actions” of all the officers involved in the robbery response and eventual car pursuit “contributed to ‘a continuing and escalating series of events’ and ‘must be viewed as a continuum of circumstances ultimately leading’” to her injuries. Id. at 945-46. The Koussaya court rejected this argument, holding that only the conduct of the officers that engaged in the use of force injuring the plaintiff could be relied upon to sustain the negligence claim. Id. (stating that there was “no authority” for the proposition that “the conduct of officers not involved in the ultimate use of deadly force [can be] relied upon to show that an otherwise reasonable use of deadly force was unreasonable.”).
Plaintiffs’ Third Amended Complaint alleges a laundry list of negligence theories without any specification as to how those theories apply to Plaintiff Gardner’s claims. See Dkt. 87 at 220-222 (alleging, for example, that the City negligently failed to “prohibit the disproportionate use of force against Black people, People of Color, and other historically marginalized people”).
13 To the extent that Plaintiffs’ general negligence theories allege negligent police conduct occurring outside of Plaintiff Gardner’s specific interactions with SPD officers, they are inapplicable to his claim and, in any event, barred by the public duty doctrine. See Koussaya, 54 Cal. App. 5th at 946 (declining to consider conduct of officers not involved in the use of force at issue); Beltran-Serrano, 193 Wn.2d at 551-52 (“Recognizing [a duty to exercise reasonable care during direct interactions] does not open the door to potential tort liability for a city’s statutorily imposed obligation to provide police services, enforce the law, and keep the peace. These statutory duties have always been, and will continue to be, nonactionable duties owed to the
13 Plaintiff Gardner does not allege that he is a person of color.
public at large.”). The remainder of Plaintiffs’ generalized negligence theories fail because Plaintiff Gardner cannot establish that any SPD officer’s conduct fell below a recognized standard of care.
i. May 30, 2020
On May 30, SPD managed historic and dangerous civil unrest the likes of which the City has not seen in decades, if ever. Protesters burned and stole rifles from police cars, threw projectiles at officers, and engaged in a “staggering” amount of looting. Plaintiff Gardner’s negligence claim must be viewed through this lens. Based on Plaintiff Gardner’s allegations, the City is unable to identify the specific deployment of CS gas that affected Plaintiff Gardner. In any event, however, the justifications for SPD’s uses of force were significant. See Luchtel v. Hagemann, 623 F.3d 975, 980-82 (9th Cir. 2010) (In determining reasonableness, court must evaluate “the totality of the circumstances,” judging from the perspective of a reasonable officer on the scene, not with “the 2020/vision of hindsight” and bearing in mind that police officers “need not use the least intrusive means available to them.”); Wise v. City of Portland, 483 F. Supp. 3d 956 (D. Or. Sept. 2, 2020) (noting that police “are entitled to use some level of reasonable force” to effectuate a dispersal).
Moreover, Plaintiff Gardner, who was 50-100 yards away from the deployment he alleges to have affected him, has no personal knowledge of what precipitated the deployment, admits that he was aware that CS gas had been deployed almost five minutes before it began affecting him, and made the decision to remain in the area for hours after he initially began to feel its effects. Under these circumstances, his negligence claim fails. See Beltran-Serrano, 193 Wn.2d at 552 (holding that officers have a duty to “refrain from causing foreseeable harm in the course of law enforcement interactions with individuals” (emphasis added)); Leek v. Tacoma Baseball Club, 38 Wn.2d 362, 366, 299 P.2d 329 (1951) (no duty to protect an individual from a known risk of harm where sufficient time existed for individual to avoid the danger).
Plaintiff Gardner cannot seriously challenge the reasonableness of Officer Anderson’s decision to use force to prevent him from continuing to assault police officers on July 25. There is no dispute that at the time of his injury, Plaintiff Gardner was using a leaf blower to blow chemical irritants at police officers. Plaintiff Gardner’s actions constitute felony assault. See RCW 9A.36.031(1)(g). Moreover, the dangerous conditions individuals in the protest crowd created on July 25th can hardly be disputed. In the hours prior to Plaintiff Gardner’s alleged injury, individuals lit fire to the Youth Services Center, attempted another arson at a Starbucks underneath an apartment building, threw an explosive device at the East Precinct, and pelted SPD officers with a variety of projectiles. Indeed, dispersal orders were continuously issued in the hours prior to Plaintiff Gardner’s injury. See RCW 9A.84.020 (making failure to disperse a misdemeanor); SMC 12A.08.160 (same). Yet the crowds did not disperse. To the contrary, at the time of Plaintiff Gardner’s injury, the crowd, with Plaintiff Gardner at the front, advanced towards SPD officers as officers walked backward away from the protesters. Cases involving analogous uses of force underscore the reasonableness of Officer Anderson’s conduct here. For instance, in Black Lives Matter Seattle-King County v. City of Seattle, 505 F. Supp. 3d 1108, 1118 (W.D. Wash., Dec. 7, 2020), the court analyzed multiple comparable uses of force and found them reasonable. In one instance, a protester ran towards police officers holding a traffic cone in each hand. As the protester threw one cone at officers and prepared to throw the other, an officer carrying a less lethal device similar to the 40mm at issue here hit the protester with five pepper ball rounds. Id. In another, a protester “taunted and threatened” officers with an umbrella by raising it to officers’ eye level and, later, raising it inches from an officer’s head. Id. The court held that, “clearly,” both uses of force were “necessary, reasonable, proportional, and targeted,” noting that “[s]topping an assault on other officers was reasonable and necessary.” Id.; see also Felarca v. Birgeneau, 891 F.3d 809, 81819 (9th Cir. 2018) (holding that officer’s overhand baton strike was a reasonable response to
plaintiff throwing leaves and shaking fist where protesters continued to engage officers in verbal and physical altercations and refused to disperse).
As with the uses of force analyzed in Black Lives Matter, Officer Anderson’s use of force was targeted, consistent with his training, and reasonable in light of the dangerous circumstances. Plaintiff cannot meet his burden to show a fact issue indicating otherwise.
2. Plaintiff Gardner Assumed the Risk of Injury.
Even if Plaintiff Gardner could show that Officer Anderson’s use of force was unreasonable (he cannot), the doctrine of implied voluntary assumption of the risk bars his negligence claim. Plaintiff Gardner cannot recover on his negligence claim because he (1) had full subjective understanding (2) of the presence and nature of a specific risk, and (3) voluntarily chose to encounter that risk. See Gregoire v. City of Oak Harbor, 170 Wn.2d 628, 636, 244 P.3d 924 (2010); Dorr v. Big Creek Wood Prods., Inc., 84 Wn. App. 420, 427, 927 P.2d 1148 (1996) (“Those who choose to participate in [activities] likely to cause harm to the participant, for example, impliedly consent in advance to excuse the defendant from any duty to protect the participant from being injured by the risks inherent in such activity.”).
As discussed in detail above, at the time he was struck with an impact round on July 25, Plaintiff Gardner was at the front of a crowd of protesters advancing on a line of withdrawing police officers. As the crowd crept closer to the officers, Plaintiff Gardner committed felony assault by using a leaf blower to spray chemical irritants on those officers. This came hours after SPD had issued repeated dispersal orders to the crowd. Plaintiff Gardner’s testimony that in the moments prior to his injury he was “asking [police] why they were using flash bangs and tear gas” further belies the notion that he was unaware of the risk of injury. To the contrary, Plaintiff Gardner made the knowing and intentional decision to assault police officers with full knowledge of the risks that could result.
On May 30, Plaintiff Gardner likewise assumed the risk of injury resulting from chemical irritants. Plaintiff Gardner’s stated purpose in attending the protest was to assist people
experiencing the effects of chemical irritants. Moreover, he testified that prior to the protest he was “absolutely” aware that tear gas may be used. Indeed, Plaintiff Gardner even admits that the use of tear gas that he alleges to have been wrongful did not even begin to affect him until up to nearly five minutes after its deployment. Yet he chose to remain in the area, thereby assuming the risk of injury.
C. Plaintiff’s Assault And Battery Claims Should Be Dismissed.
Plaintiff’s assault and battery claims should be dismissed because the uses of force at issue were reasonable. To prove his battery claim, Plaintiff Farmer must establish: (1) the City acted intending to cause a harmful or offensive contact with him or a third party, or an imminent apprehension of such contact, and (2) a harmful or offensive contact with him directly or indirectly resulted. Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 504, 325 P.3d 193 (2014).
To prove his assault claim, he must establish that (1) the City acted with the intent to put him in immediate apprehension of harmful or offensive contact, and (2) he actually had such an apprehension. See Sutton v. Tacoma School Dist. No. 10, 180 Wn. App. 859, 867, 324 P.3d 763 (2014).
Law enforcement officers are entitled to state law qualified immunity for assault and battery claims if the use of force underlying those claims was reasonable. See McKinney v. City of Tukwila, 103 Wn. App. 391, 408-09, 13 P.3d 631 (2000); Gallegos v. Freeman, 172 Wn. App. 616, 641-42, 291 P.3d 265 (2013) (holding that trial court correctly granted summary judgment on assault and negligence claims based on finding that force was reasonable under Fourth Amendment standard). In the context of an officer’s use of force, whether the officer acted reasonably depends on a variety of factors including: (1) the severity of the underlying offense,
(2) whether the suspect poses an immediate threat to the safety of the officers or others, (3) the severity of injuries sustained, and (4) the availability of less intrusive alternatives to the force employed and whether warnings were given. See Felarca v. Birgeneau, 891 F.3d 809, 817 (9th Cir. 2018); Estate of Lee ex rel. Lee v. City of Spokane, 101 Wn. App. 158, 167, 2 P.3d 979
(2000) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865 (1989)). “Of these factors, the most important is whether the suspect posed an immediate threat to the safety of the officers or others.” Felarca, 891 F.3d at 817.
“The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. Further, “[w]hat is reasonable in the context of a potential large-scale urban riot may be different from what is reasonable in the relative calm” of other situations. Bernini v. City of St. Paul, 665 F.3d 997, 1003 (8th Cir. 2012); see also Felarca, 891 F.3d at 818 (noting that the “context of the officers’ actions must be considered”).
As discussed above, SPD officers acted reasonably in effectuating the uses of force that impacted Mr. Gardner. See, e.g., Dundon v. Kirchmeier, 577 F. Supp. 3d 1007, 1048, 1054 (D.N.D. 2021) (holding that “no reasonable juror could find the use of tear gas, rubber bullets, OC spray, and the like, was objectively unreasonable” where crowd remained in the area despite previous attempts to disperse them for dismantling a police barricade, lighting fires, and throwing projectiles at officers). Therefore, Plaintiff Gardner’s intentional tort claims should be dismissed on grounds of qualified immunity.
D. Plaintiff’s False Imprisonment Claim Should Be Dismissed.
To state a cause of action for false imprisonment, Plaintiff Gardner must show that the City “intentionally confined him without justification.” See Dunn v. Hyra, 676 F. Supp. 2d 1172, 1195 (W.D. Wash. 2009). Moreover, the confinement “must be complete”; if plaintiff has a means of escape, even if it involves “a slight inconvenience,” they have not been confined.
Restatement (Second) of Torts § 36 (1965). Here, Plaintiff Gardner does not allege that SPD prevented him from leaving the protests on May 30 or July 25. His false imprisonment claim should accordingly be dismissed.
E. Plaintiffs’ Claims Under The Washington State Constitution Should Be Dismissed.
Plaintiff Gardner’s claims for injunctive relief under article I, sections 4 and 7 of the Washington Constitution should be dismissed. 14 “An injunction is an extraordinary equitable remedy designed to prevent serious harm; its purpose is not to protect a plaintiff from mere inconveniences or speculative and insubstantial injury.” DeLong v. Parmelee, 157 Wn. App. 119, 150, 236 P.3d 936 (2010). A party seeking injunctive relief must show: “(a) a clear legal or equitable right, (b) a well-grounded fear of immediate invasion of that right, and (c) that the act complained of will result in actual and substantial injury.” Huff v. Wyman, 184 Wn.2d 643, 651
P.3d 727 (2015).
Nearly three years into this litigation, Plaintiff Gardner has not actually asked the Court for any injunctive relief. On this basis alone, the Court should dismiss Plaintiff Gardner’s claim for injunctive relief. Even if he were to attempt to request specific injunctive relief from the Court, Plaintiff Gardner cannot establish a “well-grounded fear of immediate invasion of a legal or equitable right.” To the contrary, Plaintiff Gardner testified that he returned to the protest just hours after his July 25 injury. He has not, and cannot, identify any way in which the City somehow prevents him from continuing to peacefully protest today if he so chooses.
F. Plaintiff’s Intrusion Into Seclusion Claim Should Be Dismissed.
Plaintiff Gardner’s “Intrusion into Seclusion” claim should be dismissed because he does not allege that he was arrested or that an officer conducted a search of his person or private personal property. Under the Court’s June 25, 2021, Order, only Plaintiffs alleging “pretextual arrest and intrusive searches of their bodies or private personal property attendant to allegedly unlawful arrests” were entitled to maintain “Intrusion into Seclusion” claims. Dkt. 141. As Plaintiff Gardner makes no such allegations, this claim should be dismissed.
14 All Plaintiffs’ constitutional claims for damages were dismissed on February 19, 2021. Dkt.
G. Plaintiff’s Biased Policing Claim Should Be Dismissed.
To establish a biased policing claim, Plaintiff Gardner must show that a police officer acted with an intent to discriminate against him based on a protected characteristic. See SMC 14.11.050(B); SMC 14.11.020. Further, the City must be unable to show that the officer had a legitimate, non-discriminatory reason for the act. SMC 14.11.050(B).
Here, Plaintiff Gardner fails to show that the uses of force that affected him were based on any sort of discriminatory intent. As discussed in detail above, on July 25, he was struck with an impact round just seconds after using a leaf blower to spray officers with chemical irritants. Moreover, the CS gas deployed on May 30 was in response to significant civil unrest and associated safety risks, not because of any protected characteristic Plaintiff Gardner might claim.
H. Plaintiff’s Claim For Communicating False Information Should Be Dismissed.
To establish a claim for communicating false or derogatory information, Plaintiff Gardner must show that (1) a City official willfully communicated false or derogatory information, (2) while acting in the course and scope of their duties, (3) with the intention of disrupting a lawful political or religious activity, and (4) that this false or derogatory communication proximately caused him injury. SMC 14.12.350. Here, Plaintiff Gardner fails to identify any false statement, let alone that such a statement proximately caused any of his alleged injuries.
I. Plaintiff’s WLAD Claim Should Be Dismissed.
To establish a prima facie claim under RCW 49.60.215, 15 Plaintiff Gardner must show that (1) he is a member of a protected class, (2) in a place of public accommodation controlled by the City, (3) the City discriminated against him when it did not treat him in a manner comparable to the treatment it provided to persons outside his class, and (4) his protected status was a substantial factor that caused the discrimination. See Floeting v. Group Health Coop., 192
15 On February 19, 2021, the Court dismissed all of Plaintiffs’ WLAD claims except those made under RCW 49.60.215. Dkt. 45. While the City maintains that RCW 49.60.215 does not allow for the kind of associational discrimination claim Plaintiff Gardner asserts here, it adopts the framework set out in the Court’s February 19, 2021, ruling.
Wn.2d 848, 853, 434 P.3d 39 (2019). Plaintiff Gardner cannot establish a prima facie case of discrimination.
Among other deficiencies in his claim, Plaintiff Gardner is not himself a member of a protected class. Even if the Court assumes that he was protesting on behalf of a protected class, he fails to identify comparators who were treated better than he was in similar circumstances (i.e., while spraying chemical irritants at police officers or attending a widespread riot downtown). See, e.g. Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 524-26, 20 P.3d 447 (2001) (noting that, to survive summary judgment, plaintiff needed to produce competent evidence that defendant’s conduct towards him differed from individuals outside protected class). Second, there is no evidence that Plaintiff Gardner’s subjective reasons for his edits had anything to do with the uses of force from which he claims injury. As discussed in detail above, the uses of force at issue here were reasonable and in response to significant threats to public safety (some of which Mr. Gardner personally created), not any protected class status. Plaintiff Gardner’s WLAD claim should be dismissed.
V. CONCLUSION
For all of the foregoing reasons, the City respectfully requests that the Court grant summary judgment dismissing all Plaintiff Gardner’s claims.
I certify that this memorandum contains 8,292 words, in compliance with the Local Civil Rules.
DATED this 17th day of March, 2023.
Seattle City Attorney
K&L GATES LLP
Ghazal Sharifi, WSBA# 47750
Joseph Groshong, WSBA# 41593 Assistant City Attorneys
E-mail: ghazal.sharifi@seattle.gov
E-mail: Joseph.Groshong@seattle.gov
Seattle City Attorney’s Office
701 Fifth Avenue, Suite 2050
Seattle, WA 98104
Phone: (206) 684-8200
Attorneys for Defendant City of Seattle
By: /s/ Mark S. Filipini
Mark S Filipini, WSBA No. 32501 mark.filipini@klgates.com
Martha J Dawson, WSBA No. 11795 martha.dawson@klgates.com
G. William Shaw, WSBA No. 8573 bill.shaw@klgates.com
Kari L. Vander Stoep, WSBA No. 35923 kari.vanderstoep@klgates.com
Ryan J. Groshong, WSBA No. 44133 ryan.groshong@klgates.com
Attorneys for Defendant City of Seattle
CERTIFICATE OF SERVICE
I hereby certify that on the 17th day of March, 2023 I caused the following documents to be served by email:
1. Motion for Summary Judgment regarding Plaintiff Gardner;
2. Proposed Order;
3. Declaration of Declaration of Ryan Groshong ISO Motion for Summary Judgment regarding Plaintiff Garnder;
4. Declaration of Todd Kibbee ISO Motion and Exhibits Thereto;
5. Declaration of Carl Anderson ISO Motion; and
5. Declaration of Martha Dawson ISO of Motion and Exhibits there to.
In addition, exhibits that could not be scanned via the court’s ecf filing system were served via FTP site to plaintiffs and thumb drives were delivered to Judge Ramsayer.
Counsel for Plaintiffs
Co-Counsel for Plaintiff Widmayer
Karen A. Koehler
Shannon M. Kilpatrick
Lisa Benedetti
Melanie Nguyen
Fred Rabb
Gemma N. Zanowski
Furhad Sultani
STRITMATTER KESSLER KOEHLER MOORE
3600 15th Avenue W., Suite 300 Seattle, WA 98119
karenk@stritmatter.com
shannon@stritmatter.com
lisa@stritmatter.com
melanie@stritmatter.com
fred@stritmatter.com
gemma@stritmatter.com
furhad@stritmatter.com
anner@stritmatter.com
kristinm@stritmatter.com
katie@stritmatter.com
alysha@stritmatter.com
Counsel for Plaintiffs
Sarah Lippek
LAW OFFICES OF SARAH LIPPEK
PLLC
3815 S. Othello Street, Suite 100-378 Seattle, WA 98118
lippek@protonmail.com
Co-Counsel Plaintiff Widmayer
Neil T. Lindquist
KORNFELD TRUDELL BOWEN & LINGENBRINK, PLLC
3724 Lake Washington Boulevard NE Kirkland, WA 98033
neil@kornfeldlaw.com
Pro Se Plaintiff Megan Buss
Megan Buss
5913 Rainier Avenue S., Suite 304 Seattle, WA 98118
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DATED this 17th day of March, 2023.