Where We’re At: A Candid Look Into Our Legal Case

Where We’re At: A Candid Look Into Our Legal Case

Elliott Harvey is Chair of The Committee to Recall Jenny Durkan and Legal Director of Fire the Mayor.

On July 10th, 2020, Superior Court Judge Mary Roberts ruled that one of our campaign’s seven charges against Seattle’s Mayor Jenny Durkan could go to the voters. 

Judge Roberts re-wrote the remaining charge to say that the Mayor violated her duties when she didn’t create new policies for Seattle Police (SPD) after the Mayor found out that chemical agents were being used on peaceful protestors during the pandemic.

On July 14th, 2020, the Mayor filed a “Motion for Reconsideration.” This means they want the same judge (Judge Roberts, in this case) to change their ruling.

There are specific rules for when you can ask for a reconsideration (same judge) instead of an appeal (higher court). 

Durkan used rules that say you can file a motion if the Judge’s decision: 1) had no evidence to support it, or 2) wasn’t legal, or 3) it wasn’t “substantially just”. 

I’ll let you draw your own conclusions about whether any of those apply here (we argued that they didn’t.)

The content of Durkan’s motion spent a bunch of time on a Statement of Facts. This is interesting because for a recall, the judge doesn’t consider the facts, they consider “factual sufficiency.” This means that if the judge assumes the allegations are true, the charge has to support a case for misconduct.

Other interesting things in this motion:

  • Durkan quotes the Chief of Police talking about the decision to use CS (tear) gas when Chief Best says: “… I own that decision.” (pg. 7)
  • Durkan got a quote from the DOJ on July 13th, 2020 (the day before filing) to say that she’s not allowed to change policy because of the Consent Decree (oversight agreement) she placed on the SPD in 2012 when she was a district attorney. (pg. 2)
  • Durkan says that no one can prove she wanted the police to break the law. (pg. 13)

On July 16th, 2020, Judge Roberts asked us to file a response.

On July 21st we filed a response, as requested. In the same document, we included a cross-motion for reconsideration, which just means that we said, “we also want the Judge to reconsider.”

Some things we said to Durkan in the filing:

  • You have created police policy when you feel like it. (Executive order on body cams.)
  • The City Charter places final responsibility on the mayor for law and order.
  • Plenty of very intelligent people and agencies thought you had power over the SPD.

On July 23rd, 2020, Durkan filed a response-to-our-response. There’s a lot of fun stuff in this one (and so much attitude).

I think my favorite part is when they stop trying to throw Chief Best under the bus and instead put blame on the rank-and-file:

“…[I]n the event individual officers are found to have violated constitutional rights, they did so in contravention of Mayor Durkan’s and Chief Best’s actions[.]”

– Mayor Durkan’s Response-to-our-Response

Another significant change is that they don’t mention the consent decree once this time.

I can’t say for certain, but here’s my guess about why that is:

The Mayor and the SPD tried to block City Council’s recent ban on crowd control weapons by saying the City Council violated the Consent Decree. 

This happened on July 17th, 2020.  On July 22nd, 2020, Judge James Robart ruled, saying that the Mayor and SPD hadn’t met the minimum requirements for a temporary restraining order (TRO). 

He also pointed out that Durkan hadn’t tried to block Chief Best’s 30-day limit on tear gas or the TRO put in place by Judge Jones on June 12th, 2020 AND that the Mayor/SPD failed to show that blocking the City Council was in the public interest.

Judge Mary Roberts hasn’t asked us for a response, which seems unlikely, so now we wait for her ruling.

My favorite quote from our Motion:

“The law as it stands on tear gas and pepper spray as crowd control measures is currently under review in a number of jurisdictions, and correctly so, as it is an indiscriminate weapon, banned by international law in wartime. 

Mayor Durkan spends time arguing that the use of CS gas is not wholly forbidden by law, but a request to outlaw CS gas was not present in the charges, nor was it the intent.

The use of tear gas, pepper spray, pepper bombs, and other such devices on peaceful protesters and residents in their homes alike was particularly cruel both to those at risk of death by suffocation and to a healthcare system strained with the task of saving lives.

If this life-threatening inaction is what the Mayor deems to be “political”, the petitioners shudder to see what degree of loss of life and liberty to be reasonable grounds for recall petition.

Fortunately, we need not find out, as this role falls to the courts and then, ultimately, the voters.”

– Fire the Mayor’s Response to Motion of Reconsideration

See ya in court ?

Elliott Harvey

Committee Chair