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Do business owners and residents in the CHOP have legal recourse?

Tents sit outside of the Seattle Police Department's vacated East Precinct in the area known as the Capitol Hill Organized Protest (CHOP) on June 25, 2020 in Seattle, Washington. (Photo by David Ryder/Getty Images)

Local business owners and residents filed a class action lawsuit against the City of Seattle Wednesday, alleging the city created conditions that led to “extensive harm” done by the CHOP.

Business owners, residents sue city over formation of CHOP

But what does the law have to say about something like the Capitol Hill Occupied Protest area? It could be viewed as a form of trespassing, but it’s not necessarily that easy.

Dave Ross talked to former Washington State Attorney General Rob McKenna to find out more.

“What’s happening in Cal Anderson Park violates the Seattle Municipal Code, which prohibits camping in city parks,” McKenna said. “The code also prohibits sleeping on high traffic sidewalks.”

There are a lot of places in Seattle that do not prohibit camping, but it does specifically mention parks and high traffic sidewalks.

“So those laws for sure are being violated,” McKenna added. “But laws are only as good as the enforcement behind them.”

What about barricades that were not set up by the city?

“We can’t obstruct the streets or take control of them,” McKenna said. “I assume it’s a form of trespass. It’s an unusual situation, so I’m not sure there’s a specific line of the Seattle Municipal Code that addresses it and says you cannot put up a barrier across the street, it probably didn’t really occur to people that could happen.”

“But these are publicly owned rights of way and therefore … members of the public can’t simply commandeer them because they exist for everyone’s use, not to be commandeered by a handful of people,” he added.

Is there legal recourse then for residents and business owners in the CHOP?

“Filing a lawsuit to force the city to clear the barricades out; litigation is slow, uncertain, and expensive,” McKenna said. “So it would be much better to work the process as a political problem and put pressure on the mayor and the City Council to have law enforcement go back in to open the streets up and to prevent people from setting up a camp in the middle of the city as they’ve done.”

It could be possible to go after individual organizers.

“For example, if I own a business in that area and effectively had to shut down because of what’s going on, can I bring a suit against the individuals who are blocking that? … The short answer is yes,” McKenna said. “Anyone who harms your property is subject to private civil liability, if you bring a suit, the question here is, who would you sue?”

With a lack of any formal organization in the CHOP, you would have to determine the organization or individuals to sue to seek damages, if you can prove harm. There are individuals who have moved barricades in the way to make business traffic near impossible, who Dave said would seem to be liable.

“I think they would be because they’re causing the harm, they’re causing the disruption,” McKenna agreed. “I know they have their reasons, they’ve got their agenda, but that doesn’t mean you have a legal right to do it any more than I would have a right as a developer to start building a house or an apartment building in the park across the street from my home.”

“I think it would be important to be able to show that you’re being affected. In other words, you have standing to bring the suit. You can show that there’s harm,” he added.

McKenna said it seems someone could use for injunctive relief to stop making it impossible for a person to operate their business or easily get to and from their home. But, he said, this shows why it’s important to have the rule of law.

“You should feel like you have recourse to the legal system without fear of retribution, and that you should be able to defend your rights, protect those rights using the legal system, if you decide it’s important to do that,” McKenna said. “And you also should have a city government, wherever you live, that’s responsive and that allows you to actually enjoy the benefits of paying your taxes and being a resident of that community.”

He also believes you could have a cause of action rooted in tort.

“I think that would probably be more successful, in terms of surviving in court, surviving a dismissal motion than trying to soothe the city itself because municipal governments are not very susceptible to those kinds of suits where you’re just unhappy with their performance,” he said. “The reason is, the courts say if you’re unhappy with your local government’s performance, the solution is in the next election.”

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