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Lawsuit against Seattle over CHOP zone moving forward, alleges endangerment

Barriers in front of the CHOP. (Getty Images)

Do Seattle’s Capitol Hill business owners deserve compensation from the city for its inaction to stop the CHOP? That’s the focus of a class action lawsuit filed against Seattle over the so-called Capitol Hill Occupied Protest. Rob McKenna, former Washington state attorney general, joined Seattle’s Morning News to discuss.

“It’s brought by a group of business owners in the affected area of Capitol Hill, and by at least one individual who says his apartment was broken into several times — so he’s asserting his rights as an individual — and they’re asking for damages,” McKenna said. “They have three theories that have survived the city’s motion to dismiss this, so the case is alive. The federal judge who ruled on it said, ‘Yeah, if we assume everything you say in your complaint is true, we’re gonna let this case go forward.'”

The three primary complaints relate to use of property and endangerment as a result of the city’s apparent inaction, which McKenna says is a hard case to make, but is nonetheless moving forward.

“They’re arguing that they were deprived of the use of their property, at least temporarily, because the CHOP participants blocked off streets, blocked off sidewalks, set up their own security, wouldn’t let people in or out without permission,” he said. “They’re saying that they were subjected to danger by the city’s decision to not allow the police to go into the CHOP zone for that roughly three-week period. And they’re saying that they suffered a taking, that is to say that they were deprived of their protective property interests for a period of time.”

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“So it’s a difficult case to make to hold the city accountable when third parties create damages, vandalism, et cetera,” McKenna added. “But here the court has concluded that they’ve shown enough in the complaint that the class action participants can move forward to try this case.”

What is the city’s defense?

“Their defense going forward is that they were trying to maintain public safety in the CHOP,” McKenna explained. “They allowed the CHOP to be set up and operate for a period of time because they were concerned about more rioting … Ultimately, the city moved in and took down CHOP and it was done peacefully.”

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“Of course, the business owners say, ‘Well, that just shows you could have done it all along, that it wasn’t necessary to allow this to be set up, and wasn’t necessary for us to suffer tremendous revenue losses in our businesses because people wouldn’t come to our businesses. It wasn’t necessary for us to suffer the property damage that we did,'” McKenna said.

The core of the case relates to something called the state created danger doctrine, which revolves around a city or government appearing to show indifference to outright danger.

“It’s a very interesting case,” McKenna said. “It revolves around a fairly exotic idea or claim called state created danger doctrine, which I confess I had never heard of in those terms. But basically what that means is that if the if the plaintiffs can show that the city or a local government affirmatively places a plane of endanger by acting with deliberate indifference to a known or obvious danger, they can create a state created danger that may violate the constitutional rights of the citizen who’s affected, and that citizen could bring an action, as these plaintiffs have under the Civil Rights Act, Section 1983.”

With reporting from KIRO Radio. Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

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