Last week’s New York Times report on the CHOP lawsuit brought by a group of real estate companies and Pike/Pine and 12th Ave neighborhood businesses first reported by CHS in June paints the case as a test of this key question:
Can businesses still rely on local governments, which are now rethinking the role of the police, to keep them safe?
But the legal response from the City of Seattle filed in the case three weeks ago shows the lawsuit is really about a different question. Can a group of developers, real estate owners, and small businesses sue the city for actions it did not take to clear protesters?
“The plaintiffs simply do not, and cannot, allege that any City action directly injured them,” Seattle City Attorney Pete Holmes writes in his motion to dismiss the case filed late last month. “Rather, they complain of City inaction,” he says.
CHS first reported in late June on the lawsuit led by Capitol Hill-based developer Hunters Capital seeking to be determined financial damages for a group of businesses in the Pike/Pine and 12th Ave areas around CHOP. “This is not a step our clients have taken lightly,” lawyers at the firm Calfo Eakes said as the suit was filed in federal court while the protest camp was still active. “The rights of free speech and assembly are enshrined in our constitutional tradition, and our clients support protesters’ right to bring issues such as systemic racism and police brutality towards African Americans to the forefront of the national consciousness.”
A week later later, under executive order from Mayor Jenny Durkan, SPD raided CHOP and swept away the camp.
The list of plaintiffs has now grown. It includes developers Hunters Capital, Redside Partners and Madrona Real Estate, businesses Northwest Liquor, Bergman’s Lock and Key, Car Tender, Tattoos and Fortune, Sage Physical Therapy, Richmark Label, and property owners including Onyx Homeowners Association as well as a handful of individual residents.
The owner of Cafe Argento, another business, from the list spoke with the New York Times about the situation around CHOP:
The impact of the occupation on Cafe Argento, Mr. Khan’s coffee shop on Capitol Hill, has been devastating. Very few people braved the barricades set up by the armed occupiers to come in for his coffee and breakfast sandwiches. Cars coming to pick up food orders would turn around. At two points, he and his workers felt scared and called 911. “They said they would not come into CHOP,” said Mr. Khan, referring to one of the names that protesters gave to the occupied Capitol Hill area. “It was lawless.”
Khan says he worries about retaliation after stepping forward. After CHOP’s clearance, E Pine’s Rancho Bravo, 12th and Pike’s Sway and Cake boutique, and Nagle’s Cure cocktail bar joined the roster. You can read individual plaintiff accounts of damage, abuse, and lost revenue the owners attribute to CHOP — and the city’s inaction — in the amended complaint below:
The city has now responded to the lawsuit with its bid to push the case into a new arena. The Holmes office filing maintains that a case like this seeking damages against Seattle City Hall “require allegations that the government directly caused harm.”
“Here, while City officials were unmistakably supportive of peaceful protected speech and seriously concerned about accompanying criminal activity, even had they exhibited the total nonchalance about CHOP activities which Plaintiffs’ claim, “[a]ction taken by private entities with the mere approval or acquiescence of the State is not state action,” Holmes writes.
“The plaintiffs simply do not, and cannot, allege that any City action directly injured them,” the City Attorney’s argument reads. “Rather, they complain of City inaction. Under well-established case law, their Complaint falls short of raising any legally viable claim.”
So, can citizens and businesses sue their city for damages over “inaction”? Holmes and the City Attorney office will make their case in front of the Hon. Thomas S. Zilly in a Friday hearing later this month. UPDATE: While an oral argument has been requested by the City Attorney’s office, the judge in the case has not yet requested a hearing. The judge could decide on the motion without a hearing, according to a representative for the City Attorney’s office.
You can review the complete motion to dismiss here.
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