The legal fight between the City of Seattle and a group of Capitol Hill real estate developers, property owners, and small businesses over CHOP continues with a decision over whether  the class action lawsuit should be dismissed in the hands of a federal judge.

Lawyers representing Capitol Hill developer Hunters Capital and the real estate and business group of plaintiffs responded last week to the Seattle City Attorney’s bid to have the case dismissed with an argument countering the city’s position that you can’t sue over a city’s “inaction” to protest.

“It was foreseeable that local residents and businesses would suffer harm if the City provided barriers and supportive services to an indefinite and unpermitted gathering of thousands of people in public streets and sidewalks, and then made public declarations of support for those in the area,” lawyers at the Calfo Eakes argued in the filing in U.S. District Court last week. “It was also foreseeable that vandalism, property damage, and other crimes would skyrocket if the City facilitated such an occupation by modifying its public-safety response to not enter the area. And the City knew it was happening and did not intervene.”

The group of businesses and plaintiffs are seeking to establish a class action against the city with damages to be determined if the legal process moves forward.

The attorneys say a “deliberate indifference” argument counters the effort from Seattle City Attorney Pete Holmes to have the case dismissed. “The plaintiffs simply do not, and cannot, allege that any City action directly injured them,” Holmes wrote in the motion to dismiss. “Rather, they complain of City inaction.”

The plaintiff attorneys counter that the city “acted with full knowledge that its actions would and did harm residents, business owners, and property owners.”

“The City was inundated with formal and informal complaints, lawsuits, and tort claims, and the City repeatedly acknowledged that its actions caused crime and vandalism to increase in the area,” the response to the motion reads. “Yet the City let the situation exist for nearly a month before it finally decided to cease its support for CHOP.”

In an update to the motion, the City Attorney contends the case should also be dismissed because the group of real estate companies and small businesses “do not identify a particular risk that the City intended to expose them to.”

“Plaintiffs appear to argue that the City can be deliberately indifferent to a neighborhood where the City is aware of a general risk of increased crime or ongoing crime,” the filing from Holmes’s office reads. “That is not the law. Plaintiffs’ theory would remove governmental discretion in law enforcement and require the City to act whenever laws were violated or face liability.”

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. The list of plaintiffs has now grown. It includes developers Hunters Capital, Redside Partners and Madrona Real Estate, businesses Cafe Argento, 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. 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.

While the City Attorney’s office had asked for oral arguments over the motion to dismiss last week, federal judge Hon. Thomas S. Zilly did not request a hearing. A spokesperson for the City Attorney’s office said Zilly could still make the request or rule on the city’s motion based on the written arguments.

The next deadline in the case procedures is scheduled for mid September.

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