Will Seattle officials use the same lawsuit defense they want to take away from police?
A year ago, Seattle was in the midst of what its mayor, Jenny Durkan, called a “summer of love” with the establishment of an “autonomous zone” called “Capitol Hill Occupied Protest,” or “CHOP.” Rioters took over a police station and were allowed to occupy an entire section of the city. At the time, I wrote that if someone sued over the resulting mayhem, Durkan and Seattle could find themselves clinging to the very legal doctrine they denounced in police brutality cases: immunity.
That has now happened with a number of state and federal lawsuits. In the latest, a suit by the mother of a young man killed during the reign of CHOP, the city is likely to argue that it has immunity for its discretionary decision-making, including abandoning parts of the city to a mob.
Donnitta Sinclair lost her son, Horace Lorenzo Anderson, across from Cal Anderson Park, which was a focus of the mob’s “re-imagining” government. City officials did nothing as the park and surrounding area became rife with crime and drugs. On June 20, Anderson, who had graduated the day before from an alternative youth-education program, was allegedly gunned down by Marcel Long, 18, after an altercation.
Due to the autonomy granted to CHOP by Durkan and the city, emergency treatment for Anderson was delayed since medical crews were treated as “foreign” in the occupied zone. Eventually, the dying Anderson was placed in a private vehicle to try to get him out of CHOP. Sinclair’s suit alleges that a “Medic One ambulance was about a block and a half away from where Anderson lay bleeding” and its crew repeatedly radioed for permission to enter the autonomous zone. When police and medical teams tried to gain entrance, they reported being met by protesters asserting their sovereign rights.
The violence in CHOP continued. A little over a week later in another shooting, a 16-year-old boy was killed, and a 14-year-old was seriously wounded. Crimes in CHOP included homicides, shootings, robberies and sexual assaults — as city officials watched and did nothing.
While first celebrated in the media as a fun “block party” with colorful art and gathering places like the “No Cop Café,” the truth about CHOP soon became clear and less popular. Durkan then belatedly ordered the police to restore control of the area.
For police officers, the city’s defense may seem as familiar as it is frustrating. This is the flip side to lethal-force cases such as last month’s shooting of Ma’Khia Bryant, 16, in Columbus, Ohio, in which Officer Nicholas Reardon used lethal force to stop the stabbing of another girl. In the case of CHOP, Durkan and other Seattle officials decided not to act despite deaths, sexual assaults and other crimes. They will now argue that their inaction was a well-intended but admittedly unsuccessful attempt at de-escalation.
The difference, however, is that they made their decision over weeks, as victims mounted — while, in Columbus, Officer Reardon literally had seconds to decide.
As Seattle council members and Durkan were praising CHOP, there also were calls by council members to defund the police, to fire white officers, and to repeal the immunity doctrine protecting police officers. Congresswoman Pramila Jayapal (D-Wash.), Seattle City Council President Lorena González, council members Teresa Mosqueda, Tammy Morales and Kshama Sawant, and other elected officials in the state all called for an end to the immunity defense for police officers.
They are not alone. New York City’s council voted to end the practice, and President Biden is pushing for the U.S. Senate to enact the George Floyd Justice in Policing Act, which includes the elimination of qualified immunity for police officers.
The immunity doctrine protects government officials from lawsuits over their discretionary decisions and actions. In 1982, in Harlow v. Fitzgerald, the Supreme Court ruled that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”
How “established” is abandoning a whole section of a city to mob rule as a social experiment? A similar question could face a court if, as expected, Seattle claims it cannot be sued over deaths caused by Durkan’s decision to abandon the CHOP area.
Fortunately for Durkan, no leader previously has been so open in ceding territory to a mob. And no one had reason to state the obvious — that the first obligation of a government is to actually govern.
Some past “sovereign immunity” cases turn on the “public duty doctrine” that shields government from liability when it refuses to act to enforce laws. This applies not just figuratively but literally to citizens held hostage due to the inaction of public officials. In 1855, the Supreme Court ruled in South v. Maryland that a sheriff was not liable after allowing a gang to hold a man hostage over unpaid money; the court held that the sheriff owed his duty to the public rather than to individual citizens.
While sovereign immunity claims and “public duty” defenses have been curtailed in some states, there remain ample protections for governments and government officials in carrying out discretionary duties. Even without immunity, the standard of negligence affords protection for officials in not just “re-imagining policing” but in re-imagining governing.
Then again, we have never encountered the likes of CHOP, or a city that wanted to imagine itself out of existence. This was not just some hostage-taking that lasted a few hours but a weeks-long self-proclaimed, government-recognized occupation by a mob. Trapped within that ceded zone were some citizens who labored under the quaint notion that the government is required to afford them basic protections and not choose between them and a popular mob.
If Seattle gets chopped in court, it will be due not to a failure of government but to a failure to govern.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates online @JonathanTurley.
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