IN THE SUPERIOR COURT FOR THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF KING
The Estate of SUMMER JOLIE WILLIAMS )
TAYLOR, by and through MATTHEW D. TAYLOR, ) No. 20-2-14351-1 SEA
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, ) ) vs. ) )
CITY OF SEATTLE, a governmental entity, ) Defendants. )
HEARING
Commissioner Judith Ramseyer Presiding
April 14, 2023
TRANSCRIBED BY: Marjorie Jackson, CET
THE CLERK: -- Judith Ramseyer presiding. 5
THE COURT: Good morning.
MR. GROSHONG: Good morning, Your Honor. 7
MS. KILPATRICK: Good morning, Your Honor. 8 THE COURT: We are here in the case of the Estate of 9 Summer Jolie Williams Taylor vs. City of Seattle, Cause No. 10 20-2-14351-1, Seattle designation. We're here on the 11 Defendant City of Seattle's motion for summary judgment to 12 ask me to dismiss the claims of two of the plaintiffs, Ned
13 Farmer and Zachary Gardner. 14
I've reviewed all of the materials that have been 15 submitted, and let me just say -- and you know this -- I 16 mean, there's a lot here -- but I really appreciate the 17 thoroughness and the level of detail, and it illustrates how 18 much work you've been doing over the last two years, I 19 guess. To be able to view body-worn videos and things of 20 that nature is not common, and so I want to thank you for 21 the level of detail that you've provided.
22 But I have reviewed the materials and I understand the
issues that are being raised. I'm happy to hear argument
from Counsel if you'd like to reinforce or augment what's
been submitted in some way.
1
But, first, why don't you guys make your appearances for
2 the record, and we'll begin with the plaintiffs.
MS. KILPATRICK: Good morning, Your Honor. This is 4 Shannon Kilpatrick here on behalf of Plaintiffs. 5
6
THE COURT: Thank you.
MR. GROSHONG: Good morning, Your Honor. Good morning,
7 Your Honor. Ryan Groshong on behalf of the City of Seattle.
8
THE COURT: All right. Thank you to you both.
9 Mr. Groshong, the City is the moving party. Would you
10 like to begin?
11
MR. GROSHONG: Yes. Thank you, Your Honor. And is 12 there one of the motions the Court would prefer we address 13 first? 14
THE COURT: Not necessarily. In doing my review, I
15 started with Mr. Farmer and moved on to Mr. Gardner, but
16 I've reviewed them both, so whatever you like.
17
MR. GROSHONG: Sounds great. I will plan, then, following
18 the Court's method of review, starting with Mr. Farmer.
19
THE COURT: All right, Your Honor, on the night that 20 Mr. Farmer alleges that he was injured, he chose to ignore
three dispersal orders and elected to position himself 22 between two dumpsters that protesters had pushed into the
street and where Mr. Farmer had witnessed blast balls
detonating just minutes prior. His alleged injuries were
entirely the result of the significant and undisputable
1
safety risks that officers faced that night, as well as his
2 own assumption of the risk. We ask that his claims be
3 dismissed.
4
At the outset, Your Honor, it's critical to acknowledge
5 the circumstances in which Mr. Farmer's alleged injury
6 occurred, none of which Plaintiffs dispute in their
7 response. This was a night in which SPD had attempted to
8 maintain distance between police officers and protesters,
9 requesting, throughout the night, that protesters maintain
10 distance from police officers, to no avail. Protesters
11 ignored those requests and continued to advance closer and
12 closer over the course of the night.
13
Around 8:20 p.m., an individual in the crowd was shot, and
14 several hours later police officers dispersed the crowd
15 after protesters began throwing dangerous projectiles at
16 officers. But despite these initial dispersal orders and
17 despite the SPD's efforts to disperse the crowd, the crowd
18 didn't disperse, and one of the individuals who remained in
19 the crowd had a handgun.
20
So by the time Mr. Farmer arrived in the area less than 21 an hour after the initial dispersal order, SPD had already 22 issued three dispersal orders to the crowd, and SPD issued 23 three more upon Mr. Farmer's arrival, including one which 24 he himself videotaped very clearly in which the dispersal 25 order is quite audible, but Mr. Farmer did not disperse.
1 He did not go home. Instead, he cut across Cal Anderson
2 Park to situate himself closer to the danger between these
3 two dumpsters that I referenced earlier in the hopes of
4 obtaining better photographs of what was going on that
5 night.
6 He recorded blast balls before moving into that position,
7 detonating in the very same position in which he would
8 subsequently find himself or situated himself just minutes
9 thereafter.
10
One minute before Mr. Farmer's injury, SPD engaged with an
11 individual who was carrying a heavy bucket close to the area
12 of the dumpsters where Mr. Farmer was. And then immediately
13 following that, another individual, in a low-crouching
14 position, went to the same space where the individual with
15 the bucket had been, hid behind a sign and began rummaging
16 through a backpack as though he was looking for something on
17 a night when there's no dispute that folks in this same
18 crowd that was refusing to disperse had been throwing
19 projectiles at police officers. 20
Pursuant to Officer San Miguel's training, she deployed a 21 blast ball into open space near this specific threat which 22 bounced off of the sidewalk and, ultimately, Mr. Farmer 23 alleges to have affected him.
24
As a matter of law, Mr. Farmer's remaining claims, which, 25 based on Plaintiffs' response, are now negligence, assault
1 and battery and discrimination under the Washington law
2 against discrimination, should be dismissed.
3 Starting with the negligence claim, his negligence
4 allegations fail for several reasons. First, quite simply,
5 he fails to allege a cognizable negligence claim.
6 Washington law allows for, in police actions, intentional 7 torts and negligence claims to coexist only where there is
8 some negligence on the part of the officer who used force in
9 her actions leading up to the actual use of force.
10 Here, because Mr. Farmer challenges only the 11 reasonableness of the use of force itself, his negligence
12 claim should be dismissed on that basis alone. However, 13 even if this court were to permit a negligence claim based 14 on the reasonableness of the use of force that affected 15 Mr. Farmer, such a claim should nonetheless be dismissed.
16 Mr. Farmer's response fails to identify any genuine issue 17 of material fact regarding the reasonableness of Officer San 18 Miguel's decision to deploy the blast ball. 19
These were highly dangerous circumstances in which a crowd 20 had shown itself to be violent, shown itself to refuse to
disperse from the area in which violence had occurred. And
Officer San Miguel deployed the blast ball based on a
particular and significant threat to the safety of her and
other officers on the line. There is -- there is no basis
from which a reasonable fact finder could find that the use
1 of force at issue here was unreasonable.
2 And, third, Your Honor, with respect to the negligence
3 claim, Mr. Farmer assumed the risk that he would be injured
4 in the manner in which he alleges that he was that night.
5 SPD's dispersal order, which Mr. Farmer himself captured on
6 his cell phone in the minutes before his injury, said very
7 clearly -- and I think that it's worth quoting here --
8 "If you fail to disperse, you may be arrested or subject
9 to other police action. Other police action could include
10 the use of chemical agents or other less lethal munitions
11 which may inflict significant pain or result in serious
12 injury."
13
Not only did Mr. Farmer hear this warning, immediately 14 after it was issued, he moved closer to the danger. And 15 under these circumstances, Your Honor, the doctrine of 16 assumption of risk precludes him from pursuing a negligence 17 claim here. 18
Mr. Farmer's assault and battery claims fail for the same 19 reason as his negligence claim, and so I won't belabor the
point here. But with respect to his allegations under the
Washington law against discrimination, Mr. Farmer's claims 22 again fail for several reasons. 23
The first is that at the hearing on the City's partial
12(b)(6) to dismiss Plaintiffs' claims under the Washington
law against discrimination, which at this point was quite
1
some time ago, the Court held that a derivative class could
2 exist for plaintiffs who, at the time of their alleged 3 injuries, were actively protesting acts of violence and
4 discrimination against people of color.
5
Mr. Farmer was very clear in his testimony that at the
6 time of his injury, that's not what he was doing.
7 Mr. Farmer wasn't even at the protest that night until
8 the dispersal orders were issued. His testimony is that
9 he was at home and then he became curious upon hearing the
10 sounds of explosions and a helicopter above, and so traveled
11 to the protest area at that point.
12 And then, upon arriving there, what he said in his
13 testimony -- and, again, I'm quoting here -- is, "No 14 disrespect to either side. I was really more interested in 15 documenting." He was there to take photographs. He was not 16 there to take part in a protest advocating on behalf of 17 people of color. And for this reason, Your Honor, 18
Mr. Farmer is not and cannot be part of this derivative
19 protected class that the Court articulated at the prior 20 hearing in this case.
21
Second, Your Honor, even if Mr. Farmer was or could be a
member of a protected class here, his response fails to
identify any evidence of relevant comparators, folks who
were similarly situated outside of the protected class and
were not subjected to the same treatment. There's nothing
1
in Plaintiffs' response from which the Court could derive
2 anything about relevant comparators from which to compare
3 Mr. Farmer's allegations here.
4
And, third, Your Honor, the gravamen of a WLAD claim what
5 a plaintiff ultimately must show at trial is that
6 discrimination on account of membership in a protected class
7 was a substantial factor in the action at issue here,
8 presumably the use of force. There is absolutely no
9 evidence in the record of Officer San Miguel's intent.
10 There was -- there is no indication that she acted based on
11 discriminatory -- excuse me -- discriminatory intent that
12 night as opposed to the particularized and significant
13 safety risk that she perceived based on the individual 14 hiding behind the sign, rummaging through a backpack in 15 these highly dangerous circumstances.
16
And so for all of these reasons, Your Honor, we
17 respectfully request that Mr. Farmer's claims be dismissed. 18
THE COURT: All right. Thank you, Mr. Groshong. 19
Ms. Kilpatrick, would you like to respond? 20
MS. KILPATRICK: Yes, Your Honor. Well, first of all, I
want to make sure I'm addressing anything that you have
questions on, do if you want me to start with a particular
issue, you know, let me know. Otherwise, I can just dive in
and follow Mr. Groshong's lead. 25 THE COURT: Well, I'm assuming that you'll address each of
1 the claims that Mr. Groshong has --
2
MS. KILPATRICK: I will.
THE COURT: Then that's what I'd like to hear.
MS. KILPATRICK: Okay. Super. Then I'll start -- I'll 5 just start at the beginning. 6
THE COURT: All right.
7 MS. KILPATRICK: Thank you, Your Honor. First of all, I 8 wanted to remind the Court that this is in the context of 9 summary judgment motion.
10 THE COURT: I'm well aware of it.
11
MS. KILPATRICK: Yes. And I know that you are, but I 12 just -- it helps to contextualize my argument going forward 13 because the entire basis for the City's motion requires the
Court to disregard the evidence put forth of the plaintiff's
testimony, that the declaration of Russ Hicks must be 16 ignored, and the Court must accept that the officer's 17 actions were reasonable. And we, obviously, greatly dispute 18 all that. And that's why, in this context, it's
important -- it's important to remember that this isn't
about weighing the evidence. This is about deciding whether
the plaintiffs have put forward evidence to dispute these
issues of material fact.
So beginning with negligence -- well, I wanted to make
clear, because the City sometimes has trouble understanding
what our negligence claims are based on, but our negligence
1 claims are not based on the fact that they used force. Our
2 negligence claims are based on the City's unreasonable
failure to follow standard police practices, including the
SPD's own policies, and that's what caused the injuries to 5 the plaintiffs.
6
We also have that separate claim for neg -- I'm sorry --
7 for assault and battery, but that's a separate issue. Just
8 looking -- focusing on the negligence claims, the
9 declaration of Russ Hicks, who is a 30-year veteran police
10 officer, has taught for 15 years at the academy, estimates
11 he's taught roughly 50 percent of the current officers in
12 the state of Washington. He details the various policies
13 that the officers violated. He -- for both Plaintiffs
14 Farmer and Gardner, but I will focus on Farmer right here,
15 he explains that Officer San Miguel failed to follow
16 standard police practices, such as ensuring that the 17 proximity was clear of people who were not posing a threat, 18 such as Ned Farmer, and did not do that. She did not do
19 that. That's a violation of SPD policy 14.090, Section 20 9(d), Crowd Management.
21
He details how the justification for the use of force was
not appropriate for the circumstances. He discusses how
nothing in the 11-minute video leading up to Ned Farmer's
injury shows anyone throwing items. They had no particular
reason to suspect that the individual they were shooting at
1 in this had partaken in any crime or was going to partake in
2 any crime other than the failure to disperse. And failure
3 to disperse, a violation of that is not a justification, a 4 proper justification for using the force that they 5 eventually did. 6
Made no attempt to de-escalate prior to deploying 7 the blast ball. That's a violation of SPD 8.100, the 8 escalation, which requires officers to use verbal 9 persuasion, advisements or warnings before deploying
10 force, and there was no reason that could not have
11 happened here.
12 All of -- so these failures and more, as detailed in his
13 declaration, are what was the unreasonable conduct, the 14 negligent conduct that precipitated the use of force. And 15 this is -- you know, follows almost exactly with 16 Beltran-Serrano, which basically says that you can have 17 negligence and intentional torts arising out of the same set 18 of actions when you look at them on a spectrum. And so this
is -- this is why -- I mean, the Beltran-Serrano court
endorsed exactly what the plaintiffs are arguing here, which
is that the conduct -- the conduct leading up to the use of
force was unreasonable. That's negligence.
And then the actual use of force, which is excessive and
which Plaintiffs explain is unreasonable, disproportionate
and not necessary under the circumstances, that is the basis
1
of the assault and battery claim. So here we have precisely 2 what happened in Beltran-Serrano, just in a different set of
facts.
4 And on that basis, Plaintiffs have put forward a valid
5 negligence claim. They put forth evidence to dispute the
6 facts as set forth by the City and, as a result, the
7 negligence -- the City's motion with respect to the
8 negligence claim should be denied.
9 Russ Hicks, also in his declaration, sets forth the
10 reasons why the actual use of force was not reasonable and
11 not necessary and not proportional. And, therefore, that's
12 a genuine dispute of material fact for the assault and
13 battery claim. I won't get into that further, given the 14 City's position that it's basically the same argument. 15 And finally getting to the -- well, let me -- before I 16 get to the WLAD plan, I wanted to address the assumption
17 of risk argument because I think that -- well, I think that 18 there's multiple reasons you can reject it, one of which is 19 that I think our Supreme Court would find it was against 20 law on public policy, but you don't need to actually decide
that to reach the result the plaintiffs ask for, which is
denying the motion. Because the clear case law says that
participants only assume the risk of injuries that are
inherent in whatever activity is taking place. 25
So when you look at Kirk and Scott, for example, in Kirk,
1 the Court said the cheer -- the cheerleader assumes is the
2 risk of injury due to the inherent risks in cheerleading but
3 not other risks created by the defendant. In that case, it
4 was unsafe facilities and failure to supervise and that kind
5 of thing. So the negligence claims themselves were
6 separated out, and those could proceed.
7 Similarly in Scott, the skier assumed the risks -- and
8 this is -- I'm quoting this language because it's
9 important -- "inherent in and necessary to the particular
10 sport or activity." But, again, the Court held that the
11 negligent acts of the resort in making the risks of skiing
12 worse were not -- could not be barred. Those were separated
13 out. Those negligence claims could proceed.
14
So, here, the City, in order to -- in order to decide that
15 the City was correct, the doctrine of assumption of risk
16 would have to be applied to the City's own negligence under
17 the plaintiffs' theory of the facts, and that's obviously
18 contrary to the case law. It would only apply to the risks
19 inherent to protesting, but not anything to do with the
20 City's negligence or anything that the City did to increase 21 the risk of the activity.
22
And, finally, the argument that Ned Farmer perfectly 23 understood what was going to happen and, therefore, he 24 assumed the risk, you have to drill down a little bit more
here because they have to -- under the case law, Plaintiff
1 has to understand the precise hazard at the time he made the
2 decision. And the City has gone to great lengths to decide
3 to describe in depth what happened at what times, but there
4 are several facts that they didn't mention.
5
First of all, that Ned hasn't -- isn't a protester in
6 terms of, you know, he hadn't gone to many of these before.
7 The ones he had seen prior only involved peaceful
8 demonstrations. Peaceful and organized, I believe is the
9 term he used. He didn't remember -- I mean, they claim that
10 he did remember the dispersal orders, but he said that he
11 was surprised when he played back the video that the
12 dispersal orders were there because he didn't recall hearing
13 them. You have to take that at face value.
14
No warning was given prior to the -- no warning was given
15 by the police prior to deploying the blast ball. So he
16 didn't have knowledge that a blast ball was about to be
17 deployed. And that's also a violation of the SPD policy.
18
And Joe Wieser, another plaintiff in this action, 19 testified that it looked to him like the officers were 20 targeting Ned Farmer. 21
Now, obviously, the City disputes that, but the important
point is that that testimony is in the record and it must be
presumed to be true under the summary judgment standard. 24
So for those reasons, the doctrine of assumption of risk
doesn't apply to this situation.
1 Okay. Turning to the WLAD issue, so here we have -- you
2 know, starting from the backdrop that the courts recognized
there could be causes of action for protesters under the 4 WLAD. First I wanted to -- you know, there's the 5 anti-retaliation provision of the WLAD, which basically
6 allows a cause of action for somebody who's opposing
7 discrimination, who are opposing other forbidden practices
8 under the WLAD.
9 A protected class is not just somebody who is a member,
10 who has the background, but it's also someone who's treated
11 as a member of that class. And so the City relies heavily
12 on the testimony which they claim says that Ned Farmer 13 wasn't there as a protester, but his intent isn't 14 necessarily the proper framework because there's other
15 evidence to show that the police could have viewed him as a
16 protester. He testified that he participated in some of
17 the chants. He testified that he -- there's maybe a little
18 bit of a semantics issue, but he testified that he did
19 participate in some of the protests on that night or early
20 morning, and that he testified that he supported the Black 21 Lives Matter movement.
22 And so based on the testimony of Joey Wieser, who said it
looked like he was being targeted, based on the testimony 24 that the officers could have viewed him as a supporter of 25 Black Lives Matter and was there as a protester and not just
1 somebody who was there to document, that's the basis of the
2 cause of action.
3 So that's -- so based on that, that evidence, Plaintiffs
4 request that the Court deny the summary judgment
5 (inaudible).
6 THE COURT: All right. Thank you, Ms. Kilpatrick.
7 Mr. Groshong, do you have anything briefly in reply?
8
MR. GROSHONG: It would probably help if I unmute myself.
9 THE COURT: It would.
10
MR. GROSHONG: Thank you, Your Honor. Just a few points
11 that I'll make briefly. First, with respect to this notion
12 of the negligent intentional tort, Counsel's argument is
13 that the negligent action at issue here was the unreasonable
14 failure to follow police practices, but I believe that,
15 among the examples she listed, was using force when
16 Plaintiffs' theory, at least -- at least according to
17 Plaintiffs' theory, is that there was no justification to 18 use force.
19
Again, this goes to the reasonableness of the use of force 20 itself, not the negligence analysis that was outlined in
Beltran-Serrano. And Plaintiffs' response brief makes this
very clear. I'm quoting from the bottom of page 14 here in
their negligence allegations. They state, "The force used
did not follow SPD policy or the standards required of law
enforcement." Again, it was the actual force that is the
1 focus of their negligence claim, not the kinds of factors
2 that are permissible under Beltran-Serrano and Mancini.
3
And with respect to the notion that the negligence claim
4 is premised on an alleged failure to deescalate, the
5 evidence is undisputable that SPD gave at least six
6 dispersal orders over the totality of the evening. Three
7 of those were issued after Mr. Farmer was in the area,
8 one of which is captured very clearly, quite audibly, by
9 footage from Mr. Farmer's own cell phone. It's unclear
10 what more SPD could have done to provide warnings and
11 provide de-escalatory communications to encourage
12 Mr. Farmer to leave this dangerous area. He simply chose
13 not to do so.
14
The second point that I'll make, Your Honor, with regard
15 to the assumption of the risk claim, is Plaintiff frames the 16 risk inherent to the activity that Mr. Farmer was
17 participating in as protesting, and I don't think that 18 that's a useful framework here. The activity that 19 Mr. Farmer was participating in was disregarding dispersal 20 orders, situating himself in the midst of an ongoing -- and 21 situating himself in the midst of an ongoing dangerous
22 situation in order to take photographs. 23 And we know that he was cognizant of the risks involved in
that activity. In addition to other factors noted in the
briefing, he captured this dispersal order, that was very
1
clearly issued, on his cell phone from the footage that he
2 took that night.
3
The third point that I'll make, Your Honor, with respect
4 to Counsel's notion that Mr. Farmer's testimony, that
5 despite his having taken video footage of a dispersal order
6 being issued, he didn't remember that order being issued,
7 with respect to the notion that that has to be taken at face
8 value because of the summary judgment standard, it simply
9 does not.
10
And this is stated in the Barry v. King County case that
11 we cited to in our briefing. Where a party's contention is
12 blatantly contradicted by the undisputable video evidence,
13 as it is here, it need not be taken at face value just 14 because of the standard that's articulated in CR 56. 15
And then the last point that I'll make, Your Honor, on 16 the WLAD claim with regard to Counsel's contention that
17 Mr. Farmer may pursue a WLAD claim because police may have 18 viewed him as a protester, in addition to the other
19 deficiencies with his claim that we've outlined in our 20 briefing, the Davis case that we cited on reply holds that 21 perceived membership in a protected class is not sufficient
22 to pursue damages on a claim. 23
So for all those reasons, Your Honor, we request that
Mr. Farmer's claim be dismissed. 25 THE COURT: All right. Thank you. I think I'd prefer if
1 we'd move on then to Mr. Gardner, and I'd hear argument,
2 because much of it is going to be repetitive, at least
3 argument on the law. The facts certainly differ, but I
4 think we could kind of cut to the chase on Mr. Gardner
5 because the law, I think, is identical in both situations.
6 It's really the facts that we're arguing.
7 So, Mr. Groshong, would you like to move on to
8 Mr. Gardner's motion?
9 MR. GROSHONG: Yes, that sounds great, Your Honor. And I
10 agree that many of the legal arguments are quite similar and
11 will endeavor to be brief in how I address them. 12
Plaintiff Zachary Gardner was no peaceful protester. He 13 brought a leaf blower to an ongoing riot and used it to 14 spray police officers with debris that included dust, 15 including the active ingredient in pepper spray, and did so
16 as these police officers were trying to back away from the
17 crowd, including Mr. Gardner, situated at the very front 18 with his leaf blower. His claims here are meritless, and we 19 ask that they be dismissed. 20
As with Mr. Farmer's claim, the circumstances in which
Mr. Gardner's injury occurred are both largely undisputable 22 and critical to the summary judgment analysis here. In the
hours before Mr. Gardner's injury, protestors attempted to
set fire -- I shouldn't say "attempted to" -- did set fire
to construction trailers at the Youth Services Center.
1 They attempted to start another fire at a Starbucks location
2 underneath a large apartment building. They used an
3 explosive device to blow an 8-inch hole through the exterior
4 wall of the East Precinct, and pelted police officers with
5 various projectiles over the course of the day.
6 SPD issued continuous orders to -- continuous dispersal
7 orders, continuing commands to move back that were largely
8 ignored. And with respect to Mr. Gardner specifically, not
9 only did he not leave the area or even move to the back of
10 the protest crowd, he went to a friend's van to retrieve a
11 leaf blower that he would then go on to use to spray police
12 officers with debris that included dust from pepper spray.
13 And this is clear from the video footage. There can be
14 no meaningful dispute of what we can all see on the video,
15 that Mr. Gardner crouches down with his leaf blower,
16 catches the debris that's on the ground and then tilts
17 the leaf blower up so as to spray the officers who are
18 immediately facing him on the line, attempting to back up
19 towards the East Precinct for the second time that day as
20 protestors followed them back, advancing on them as they
21 tried to do so.
22 And so with regard to Mr. Gardner's claims, Your Honor -23 legal claims, I should say -- I'll first note that he 24 alleges -- he alleged injuries in the third amended 25 complaint from May 30th and July 25th.
1
With regard to the May 30th allegations, Mr. Gardner
2 offers no argument or authority in his response supporting 3 any of those claims. And so for that reason alone, any
4 claim that he has arising from alleged injuries on May 30th
5 should be dismissed.
6
With regard to the July 25th injuries, just as with
7 Mr. Farmer, Mr. Gardner's negligence claim is premised upon
8 the reasonableness of the use of force itself, not actions
9 leading up to the interaction that could actually form the
10 basis of a negligence claim. And then, moreover, again, as
11 with Mr. Farmer, there can be no reasonable dispute about 12 the reasonableness of Officer Anderson's decision to deploy
13 the impact munition. There was OC powder on the ground.
14
The clear video footage shows Mr. Gardner attempting to 15 capture debris and dust from the roadway with the intention
16 of spraying officers with it. And, as is detailed in the 17 declaration of Officer Anderson and Captain Brooks, this was 18 not a situation in which it was safe or feasible to make 19 targeted arrests. In fact, had they tried to do so, it 20 likely would have made the situation significantly more
difficult.
22 And so there can be no dispute here, Your Honor, regarding
the reasonableness of Officer Anderson's use of force. 24
The assault and battery claims, as with Mr. Farmer, fail 25 for the same reasons. And with regard to Mr. Gardner's
1 claims, under the WLAD, first, like Mr. Farmer, Mr. Gardner
2 fails to identify any relevant comparators that would allow 3 him to maintain a WLAD claim past the summary judgment 4 stage.
5
And, second, there's no evidence that Officer Anderson
6 acted with any discriminatory intent. And the only evidence
7 that Plaintiffs set forth in support of some alleged
8 discriminatory intent, this notion that Officer -- or,
9 excuse me -- that Mr. Gardner called Officer Anderson a
10 Nazi, is entirely unsupported by the video record that we've
11 submitted.
12
What the video footage shows is there are profanities,
13 threats being directed at SPD throughout this time period, 14 including one protester saying, "The only good cop is a dead 15 cop." And Officer Anderson does not respond with force to 16 any of these statements. 17
In the seconds prior to Officer Anderson using force, we 18 see Mr. Gardner spraying police officers with debris. We do 19 not hear any evidence that anyone heard Mr. Gardner call a
police officer a Nazi underneath his gas mask in a noisy,
chaotic environment that was made all the more noisy by the
fact that Mr. Gardner was operating a leaf blower at the
time.
And so for all of these reasons, Your Honor, we respect 25 that -- or, excuse me -- we request that Mr. Gardner's
24
1 claims be dismissed.
2 THE COURT: All right. Thank you.
3
And Ms. Kilpatrick, would you respond to the claims
4 asserted by Mr. Gardner, please?
5
MS. KILPATRICK: Yes, Your Honor. So my arguments are
6 going to be fairly similar, so I thought I would just get to
7 the facts, the factual disputes that set forth that --
8 THE COURT: Please. Yeah, that's fine. I understand that
9 the legal context is pretty similar from case to case.
10
MS. KILPATRICK: Right. Right. And, again, in this case,
11 the declaration of Russ Hicks details the various policies
12 that were violated leading up to the use of force, including
13 that there was no warning given to Zach Gardner that he
14 needed to stop using his leaf blower before using force on
15 him. So when you look at the evidence presented by
16 Plaintiffs, it shows that Gardner was using the leaf blower
17 for one to two hours before he was shot by Officer Anderson.
18
So if this was really the threat that they claim it was, why 19 did it take so long for them to address it? 20
Our argument is that that's not the basis for the use of
force, and it was -- the basis for the use of force was the
insult, the use of the word "Nazi" to the officer. They can
dispute that all they want, but the fact is that he 24 testified that, and he provided the text message that he 25 sent to his friend detailing the same thing. That's your
1
classic, "He said, she said" -- "He said, he said," I guess,
2 which cannot be the basis for summary judgment. 3
We also have the testimony of Zach Gardner, who testified
4 that the leaf blower was a defensive tool to protect the
5 protesters who didn't have the same equipment, protective
6 equipment that he had or that the officers had. And
7 there's -- as Mr. Hicks explains, there's no evidence that
8 there was actually any OC powder on the ground or how you
9 would know the difference between OC powder and just regular
10 dust and dirt and.
11
There's no evidence that any of the officers were injured
12 or felt the effects of any OC powder. There's no evidence
13 that any of the protesters who were walking right through
14 that same area had any effects of the protesters -- I'm
15 sorry -- of the OC spray or the OC powder.
16
And so Plaintiffs submit that this is just a pretextual
17 reason, and the actual reason for the shooting was 18 improper -- improper reaction by the officer who failed to
19 follow policies of the SPD requiring deescalation, requiring
20 warnings where practicable. And there's no evidence here 21 that that's not the case. Officers are required to allow 22 protesters to -- you know, to articulate their thoughts, 23 even if they're not nice ones, towards the officers.
24
In many cases the officers were the reason -- the 25 officers' reactions were the reason that many people were
1 out there because they thought it was inappropriate. And
2 that's entirely within their First Amendment rights and the
rights they have under the Washington Constitution. 4 So -- and basically it's the same argument, the same facts 5 we look to for the -- for the argument that he assumed the 6 risk also. I don't -- I mean, basically, under Plaintiffs' 7 theory of the case and the facts that they presented, being 8 hit by a rubber bullet after calling an officer a Nazi is 9 not something that's inherent in the protest activity.
10 Finally, I mean, I don't have a lot to add to the WLAD
11 claim other than the fact that -- well, let me put it this 12 way. The same arguments apply to Mr. Gardner as Mr. Farmer
13 except -- and in addition to that, we have the -- I guess 14 what Plaintiffs would call a targeting of Mr. Gardner for 15 his beliefs and his association with -- the clear 16 association with the Black Lives Matter movement and his 17 testimony, you know, about his reasons for being there, why
18 he was there. It was clear he was associated with the -19 with the protesters. 20
And I don't -- I'm trying not to repeat myself and I
think I'm failing, so I'm just going to stop there. So I
think -- I mean, I think all of those facts, the declaration
of Mr. Hicks, the testimony of the plaintiffs, the
inferences which you can draw from the testimony and the
other facts, all support denial of the City's motion for
1 summary judgment.
2
THE COURT: Ms. Kilpatrick, will you speak to the May 30 3 incident, which was -- which involved being stopped by a 4 police line, essentially, when he and his partner were on
their way to the protest and then there was a deployment of 6 some kind of gas, and he left and felt some effects from it
7 and others around him did, as well.
8
9
MS. KILPATRICK: I mean --
THE COURT: But Mr. Groshong has argued -- and I believe
10 it's correct -- that the plaintiffs didn't respond to this
11 particular incident at all in its responsive briefing.
12
MS. KILPATRICK: Correct. No, we did not address the May
13 30th incident. Our focus is on the July 25th. Now I'm 14 getting my dates mixed up. I mean, certainly that adds 15 flavor to his claims, but it's not something we're focusing
16 on as recovering for, you know, damages, and maybe that's
17 why.
18
THE COURT: All right. So it's not an incident on which
19 your damages claims is based as much as providing context of
20 his involvement over time?
21
MS. KILPATRICK: Correct. 22
THE COURT: Okay. All right. Thank you. 23
Mr. Groshong, any brief reply? 24
MR. GROSHONG: Yes. Thank you, Your Honor. Just a few
points. The first that I wanted to respond to is the notion
1 that there was no warning prior to the use of force at issue
2 here. Plaintiffs do not dispute that there were dispersal
3 order issues throughout that afternoon and, in fact, the
4 crowds had been dispersed or SPD had attempted to disperse
5 those crowds multiple times. This use of force occurred
6 following that dispersal as SPD officers were trying to back
7 up towards the precinct, and Mr. Gardner was following them,
8 advancing on them as they did so.
9 And so the notion that another warning might -- was
10 required here or might have somehow deterred Mr. Gardner
11 from continuing to engage in this assaultive behavior just
12 isn't supported.
13
Second, Your Honor, with regard to Counsel's point that
14 there was no evidence of OC powder on the ground on July
15 25th, the first thing that I will note is that Mr. Gardner
16 testified -- and I believe Counsel acknowledged -- that his
17 purpose in operating the leaf blower was to spray chemical
18 irritants that he believed to sit close to the ground.
19
And then, moreover, Your Honor, the relevant analysis for
20 purposes of determining the reasonableness of a use of force 21 is the risk that a reasonable police officer would have
perceived at the time under the circumstances, without the
benefit of hindsight. This is the Fourth Amendment analysis 24 spelled out in Graham v. Conner.
25 And Officer Anderson stated in his declaration that, based
1 on his understanding of the prior deployments of blast balls
2 and the components that they contained, OC powder remained
3 on the ground that day and, presumably, Mr. Gardner had some
4 same understanding. Otherwise, he would not have focused
5 his blowing of the leaf blower on the ground as the video
6 evidence shows him doing.
7
And then, third, Your Honor, with regard to the assumption
8 of the risk defense, I'll again note that Counsel frames the
9 assumption of the risk argument as the risks inherent in
10 protesting, as though Mr. Gardner at the time of his injury
11 was marching, chanting, carrying a sign, even yelling mean
12 things at police officers. The undisputable video evidence
13 shows that that's not what he was doing at the time of his
14 injury. He had a gas mask on. He was using his leaf blower
15 to spray police officers with debris. That's the activity
16 from which the assumption of the risk analysis has to be
17 guided, not some notion of the risks inherent in peaceful
18 protesting. Mr. Gardner wasn't a peaceful protester.
19
And so for all these reasons, Your Honor, we request that 20 Mr. Gardner's claims be dismissed.
21
THE COURT: All right. Thank you.
MS. KILPATRICK: Your Honor, could I just add one thing 23 that I forgot to mention earlier? 24
22
THE COURT: Yes. 25
MS. KILPATRICK: The City raised in its briefing the idea
1 that Hicks' opinions should be disregarded because they
2 weren't based on the totality of the circumstances, and 3 Counsel just referenced that concept here again. I just
4 wanted to point out that in his declaration, paragraph 7, he
5 actually explicitly says that his opinions are based on the
6 reasonable police officer standard under the totality of the 7 circumstances at the time of the incident.
8 So I just wanted to point out that he was using the right 9 analysis and he reaches a different conclusion than the 10 City, and that's the basis for our request that you deny the 11 motion for summary judgment.
12 Thank you, Your Honor.
13 THE COURT: All right. Thank you. 14 Well, I am prepared to give you my rulings on this 15 situation. There's no question, and based on my comments 16 earlier, having reviewed all of the material that was 17 submitted, that this is an extraordinary situation that was
very chaotic over an extended period of time and provided 19 some certainly unique, if not unprecedented, challenges for
both sides, frankly; for the members of the community that
were frustrated and outraged and wanted to express their
frustration and outrage to the establishment, people in
control and particularly directed toward law enforcement;
and law enforcement, who had obligations and duties to
protect the entire community, as well as the rights of the
people protesting, which peaceful protest, obviously, is a
fundamental right of members of the community. And so this
really -- this is a tough situation.
I do want to begin by reiterating the reminder that
Ms. Kilpatrick made that we are in the context of summary
judgment, and everyone knows the standard well, that summary
Mr. Zachary Gardner.
I want to start out by saying what is not opposed, and
that is that Plaintiff has not opposed the defendant's
motion with regard to four claims that it asserted in its
amended complaint, and those are claims for false
imprisonment, intrusion into seclusion, injunctive relief
that is sought based on constitutional violations and
Seattle Municipal Code claims for biased policing and
communicating false or derogatory information.
These claims come as to Plaintiffs Farmer and Gardner are
dismissed as unopposed by the plaintiffs and as brought in
the City of Seattle's motion.
So let me turn to the negligence claim, and I believe it's
been properly framed by the defendant here and the
1 plaintiff. As explained in Beltran-Serrano v. City of 2 Seattle -- of Tacoma, 193 Wn.2d 537. It's a 2019 case. 3 That for the negligence claim it -- the plaintiffs have to 4 establish the standard negligence elements that lead up to 5 the use of excessive -- of what is argued to be excessive 6 force, that it's not an excessive force claim, per se; it's 7 that the Seattle Police Department breached its duty to use
8 care in not -- in avoiding the use of excessive force and 9 either deescalating or creating circumstances that led to
10 the claim of unreasonable use of force. And so I've tried 11 to focus my attention on those issues and not, per se, the 12 force that was used so much as the circumstances surrounding 13 and leading up to it. 14
And I will note -- and Ms. Kilpatrick just noted it in her 15 response -- that the defendant has argued that the expert 16 declaration of Mr. Hicks, Russ Hicks, that he is not 17 qualified as an expert because he is not qualified in crowd 18 management, which was the unique situation presented here, 19 and also for failing to consider the totality of the 20 circumstances in which these activities occurred. 21
As Ms. Kilpatrick points out, Mr. Hicks specifically said
that he did take the totality of the circumstances into
account. And for our purposes here today, I believe his CV
and his expertise as it pertains to police policies and
practices in a broad range of circumstances are sufficient
1 to qualify him and for the Court to rely on his affidavit,
2 declaration under these circumstances.
3 The City says that it will challenge him as an expert
4 should these claims go to trial, and my reliance on his
5 declaration doesn't affect that, that I'm not finding him
6 qualified for all purposes, but I am finding that, in this
7 context and in response to the summary judgment, that he has
8 training and expertise that the Court has relied on in
9 weighing the issues that are raised here and whether or not
10 material questions of fact have been raised.
11 And let me turn first, then, to Plaintiff, Mr. Farmer, Ned
12 Farmer. And, here, I find that the plaintiffs have created 13 questions of fact that would prevent entry of summary 14 judgment on his negligence claim. There are no articulable 15 suspicion of criminal conduct certainly on his part. And 16 even though the officer describes the situation of noting a 17 character, a suspicious character, wearing a backpack and 18 beginning to rummage through the backpack in the same 19 vicinity, that very close vicinity by these dumpsters as 20 Mr. Farmer, I think, through Mr. Hicks' declaration,
there's -- it's very hard, giving reasonable inferences to 22 the nonmoving party here, the plaintiff, it's very hard to
see where rummaging through a backpack is unique and
suspicious enough to justify an escalation through the blast
ball response by Officer San Miguel.
1 She also reports in her report that she had an obstructed
2 view. She couldn't -- she didn't have a good view of what 3 that individual was doing. And I understand that
4 Mr. Groshong has recited and talks about the fact that
5 there was suspicion that someone in the area had a gun and
6 there had been a shooting. And certainly, unquestionably,
7 there is a very chaotic situation going on, but the
8 directing the blast ball to the vicinity in which Mr. Farmer
9 was located when he wasn't exhibiting any kind of criminal
10 activity, other than he did fail to disperse. There's no
11 question about that; he failed to disperse. But he reports 12 that he didn't hear the dispersal orders. He arrived after 13 they had -- several of them had been given. He was 14 surprised to learn that he was present for one, which he 15 purports to having no recollection of.
16 And that -- all of those factors are sufficient to create 17 questions of fact simply to overcome the summary judgment 18 standard that must be met to grant judgment as a matter of 19 law. 20
I, of course, throughout this, am not commenting on the 21 ultimate standard of proof or the ultimate claims. 22
The defendant also argues that Mr. Farmer impliedly,
voluntarily assumed risk because he chose to come to the
site after hearing blasts and knowing that there were
protests, and he was aware, certainly, of the police
1 activity, the crowds that had gathered. And he came out of
curiosity. He came to document, in his own words, the
proceedings by taking photographs and experiencing the
situation for himself. 5
And here, again, in the summary judgment context where
reasonable inferences benefit the nonmoving party, I think 7 there is a question of fact as to whether Mr. Farmer fully 8 appreciated, understood the risk that he may have been
9 assuming or voluntarily accepted it. He -- the risk here is 10 for physical harm, you know, rather than simply 11 participating in a very large-scale protest in which 12 criminal activity had occurred in other parts of the city or 13 at other times of the protest, but I do think that there is
a valid question of fact as to whether Mr. Farmer 15 appreciated that that was the situation that he was entering
and that something beyond a large-scale public protest was a
risk that he assumed.
I'm not going to go so far as to say that applying
assumption of risk here would violate a public policy, but I
do think that it raises that specter, and that's something
that will have to be determined at another time. 22
I do think that -- and going back to the issue of
negligence that when the force, the use of force rose to the
level of the blast balls, et cetera, that there are
questions whether Mr. Farmer understood that he was exposing
1 himself to that level of force. The assault and battery
2 charge claim and the arguments for dismissing it are
3 relatively the same arguments that, again, there are
4 questions of fact regarding the justification for -- I'm
5 not -- I keep -- I'm at a loss of what the right word is.
6 I guess just throwing, you know, introducing the blast ball
7 into the area at the time that it was discharged and whether
8 there was justification as to that being proportionate force
9 under the risk that the police perceived at that time, the
10 explanation of someone who was in the same vicinity of
11 Mr. Farmer with a backpack and, therefore, that raised 12 suspicion.
13
There, clearly -- I mean, throughout all of the body-worn 14 cam -- virtually everybody among the protesters or many, 15 many of the protesters were wearing backpacks. So a 16 backpack, in and of itself, it's hard to see where that is a 17 justification, and here there is an equivocal description of 18 what that particular individual was doing. 19
With regard to the law against -- Washington law against
discrimination, the WLAD claim, the City argues that
Mr. Farmer was not there to advocate or to be a protester on
behalf of the protected class and, therefore, even a
derivative association with that is not established and is
worthy of dismissal. This is a hard one. This is a hard
one under the circumstances, I think, because we have these
1
mass protests, and so it's very difficult to carve out
2 individual situations, although I know that that's what will
3 need to be done. This is a mass tort. It's not a class
4 action, and so individual plaintiffs are going to have to
5 establish their -- the merit of their claim and what needs
6 to be established to do that. And I think this is
7 challenging in the WLAD claim.
8 But I'm not going to do it here. And the reason I'm not
9 going to do it here is that SPD wasn't making those
10 distinctions in the course of these protests. It wasn't in
11 a position where it could attempt to say, well, what's this
12 person's purpose for being here versus another person's
13 purpose for being here? And the plaintiffs' argument is 14 that the discriminatory practices were directed at the 15 entire protest because they were premised on protections for
16 African-Americans and treatment of African-Americans.
17
Mr. Farmer did testify, and his statements are in the
18 record on this motion, that he -- while he was not an active
19 protester in general, he supported the Black Lives Matter 20 protests, that he joined in chants while he was there and 21 that he was there generally in support of the protests; 22 although on this particular evening there is contrary
testimony, as well, that he was there simply to chronicle,
document what was going on. 25
But in this context, in the summary judgment context, I
1 believe that these factual questions would prevent me from
2 making a finding on summary judgment that Mr. Farmer has no
claims through the derivative association with the racial
discrimination that the plaintiffs assert is the basis for
the use of force, the escalation of force in this
circumstance.
7
And so I am going to deny the motion as to Mr. Farmer.
8 With Mr. Gardner, as we've described, the legal context is
9 very similar. The facts differ. And I agree with the
10 defendant that the plaintiffs minimize Mr. Gardner's own
11 conduct in this situation. The problem, however, is that
12 the use of a leaf blower, per se, is not illegal. There
13 really isn't a -- there are questions of fact, at a minimum, 14 and maybe more than that, that the presence of the leaf 15 blower created any actual danger for law enforcement. 16
And, yes, Mr. Gardner had on a gas mask. He was -- he was
17 an active protester. I don't think that is at question, but 18
questions of fact are raised as to why the presence of the 19 leaf blower changed the context or justified a further
escalation of force on the part of law enforcement. There
are questions of fact about the insult, and certainly
Mr. Gardner believes that that was a precipitating event.
There's no question that there was -- that there was just a
steady stream of profanity and verbal assaults at law
enforcement, and that those were disregarded routinely.
And as Mr. Groshong says, the officer in this case, his
testimony is that he didn't even hear the particular insult
of being called a Nazi, and that didn't have anything to do
with it. But, again, there's a question of fact, as 5 Mr. Gardner himself believes, that -- that it was only after
6 he yelled that to the officer that immediately then the 7 projectile struck him. He had the leaf blower, as
8 Mr. Groshong even says -- I believe Mr. Groshong said it --
9 for some period of time before that. 10
There is no showing, as Mr. Hicks says in his declaration, 11 that churning up particles from the ground had a more
deleterious effect or increased any risk of harm for either 13 the protesters or the police for that matter. There did not
seem to be any reaction from either side by the use of the
leaf blower.
16 And so I recite all of these things only to say that, in 17 the summary judgment context, I believe there are questions 18 of fact as to whether the actions of the officer here 19 improperly violated a standard duty of care not to escalate 20 the situation in terms of the use of force.
And that goes also to the assumption of risk. Clearly,
Mr. Gardner was a voluntary participant in the protest, and
he says that he was present on many occasions. I do think
that this entire context creates questions of fact as to
whether individuals understood they were assuming --
1 voluntarily assuming a risk of physical harm versus perhaps 2 misdemeanor violations of orders to disperse.
3 I want to clarify that the plaintiff has provided on this 4 record that the May 30 events do not form an independent
basis for Mr. Gardner's claims, that they only provide 6 further context of his participation in protests and his 7 knowledge of the circumstances that the protests provided.
8 The assault and battery claim is the same as it was for
9 the analysis with Mr. Farmer, that the issues that raised 10 questions of fact as to the negligence claim also raised 11 questions of fact as to whether the force was proportional 12 to the risk posed by Plaintiff's conduct and the fact that 13 he had the leaf blower for an extended period of time and 14 was not directly confronted about that or experienced an 15 increase in force against him until he insulted the officer. 16 That, at least, is a question of fact.
17
And the analysis as to the Washington Law Against 18 Discrimination claim also is the same as it was with 19 Mr. Farmer, that he -- and perhaps it's more --
Mr. Gardner's claim here may be stronger in that he was an
ongoing participant in these protests. He has a personal
interest and experience in advocating on behalf of persons
subjected to racial discrimination. And he clearly had been
actively participating. Even though he himself is
Caucasian, he was there in a derivative and associated way
1 to protect and to stand up for the rights of 2 African-Americans, and believed that he was subjected to
discrimination in the context of the larger protests. 4 And so for that reason, the claim -- the motion against 5 Mr. Gardner also will be dismissed. 6
7
Any questions about my rulings?
(No audible reply)
8 THE COURT: There's another matter I want to raise with
9 you all. And I don't know how far the word has spread, but
10 I have announced my retirement and I am planning to retire
11 as of the end of June. We had -- and it's, frankly, a very 12 hard decision to me and I want you to know that I -- you 13 know, I hate to pass along this case, which I know is
important to everyone involved and is important to me, as 15 well, and it's been my distinct honor to be associated with 16 it. But we talked before about the need to transfer it, 17 given my rotation to Kent, and I just want you to know that, 18 combined with my announcement of my retirement, that I have 19 been speaking with the powers-that-be about finding a judge 20 to whom the case can be transferred before I leave. 21 And it's my intention, and at this point no new judge has
been identified, to keep presiding over it as long as I can
or until a new -- at least until another judicial officer
has been identified -- and I have forwarded to -- and it's
just Judge Thorpe who will make these decisions, as the
1 civil chief rather than Judge Bender, since her role only
2 really extends to the MRJC -- I've expressed my suggestions
3 and attributes that I would like to see a judicial officer
4 who takes this on have, you know, including just a level of
5 experience in complex civil litigation, I think would be
6 very helpful, particularly given that we have a large number
7 of new judges, some of whom have that experience and others
8 don't. And the same for the more seasoned judges and what 9 their backgrounds are.
10 I don't know what that will mean, whether it'll have any
11 influence or whether any of those individuals will be found
12 to be available to do this, but I wanted you to know that
13 that conversation is underway, and I'm available to help in 14 any way I can to try to find a judicial officer that -- and
15 I think one of the important things is that it's somebody
16 who can stick with you. I don't think that it's fair to
17 continue to, you know, give you new judicial officers to
18 pick up and carry on.
19 I know there's a motion to continue the trial date that 20 has been filed. It's not yet ripe for decision. And so,
you know, that is another factor here. But I hope that we 22 can find a judge who can be the next judicial officer who 23 helps you carry this case to completion. 24
I can't hear you, Mr. Groshong. 25
MR. GROSHONG: Mute again. I know that I speak for
1 everyone affiliated with the City who -- and K&L Gates who's
2 on the Zoom now and everyone who's not here, that we want to
congratulate you on your retirement and so appreciate 4 everything that you and your staff have done on this case. 5 We very much appreciate it, and it's an incredibly
6 well-deserved retirement.
7 I won't jump the gun on arguing our motion to continue
8 except to note that the reason for the timing of when we
9 filed it is that we were aware that you may be looking 10 for -- or that the Court may be looking for other judges
11 with availability. We didn't want another courtroom to 12 clear out three months of availability for a trial starting 13 in October only for us to then show up and say: We actually 14 don't think the case will be ready to try in October. So 15 that was the reason behind the timing of it. 16
THE COURT: Yeah, and I appreciate that. And people did
17 raise that issue, that there was a difference of opinion.
18
And so I think getting this resolved will be helpful in
19 finding another judicial officer who can anticipate how this 20 fits into the overall schedule. So I'm assuming that I will 21 continue to be the person that decides that. I don't have 22 the actual noting date, but it's this month -- the 24th.
Yeah, it's not that far away. Okay.
MR. GROSHONG: Yeah.
THE COURT: Okay. All right.
1
MS. KILPATRICK: And, Your Honor, on behalf of Plaintiffs,
2 I just wanted to echo what Mr. Groshong said. I know 3 Ms. Koehler would be very unhappy with me if I didn't
4 congratulate you on your retirement. She's very sorry she
5 couldn't be here, but -- and also just express how much
6 we've enjoyed working with you and with your staff. Our
7 paralegals regularly rave about your staff. So it's been
8 just a real pleasure to have -- you know, even though I'm
9 the newest one on the case, but I've heard all amazing 10 things about you, and we're very sorry to be losing you, but 11 you deserve to step away from all of this, as well. So 12 thank you. 13
THE COURT: Well, thank you. Thank you very much. I 14 appreciate it, and I know my staff appreciates it. And I 15 agree that I've been lucky. I don't want you to make me
16 cry. And I want people to know that it's not my intention 17 to withdraw from the legal community. So while I'm stepping 18 down from the bench, I hope to continue to see people and be
engaged in important activities, so I don't want to
disappear.
MS. KILPATRICK: That's good. We're glad to hear that.
MR. GROSHONG: Yeah, we look forward to that, Your Honor.
THE COURT: All right. Well, thank you very much,
everyone. And I do have proposed orders. As is my
practice, I'll get an order out, but I'll primarily
1 incorporate my oral findings. All right? Okay.
2 Thank you very much. Have a good weekend and we'll be at
recess.
MR. GROSHONG: Thank you, Your Honor.
MS. KILPATRICK: Thank you.
(Conclusion of hearing)
I, the undersigned, do hereby certify under penalty 7 of perjury that the foregoing court proceedings or legal 8 recordings were transcribed under my direction as a certified
transcriptionist; and that the transcript is true and accurate to
the best of my knowledge and ability, including changes, if any, 11 made by the trial judge reviewing the transcript; that I received 12 the electronic recording in the proprietary court format; that I 13 am not a relative or employee of any attorney or counsel employed 14 by the parties hereto, nor financially interested in its outcome. 15
IN WITNESS WHEREOF, I have hereunto set my hand this
18th day of April, 2023.
Marjorie Jackson, CET