Judge sanctions City of Seattle over CHOP missing text messages

A federal judge has handed down sanctions against the City of Seattle for deleting tens of thousands of missing text messages from the phones of top officials, including the former mayor and police chief, during the Capitol Hill Organized Protest (CHOP) in the summer of 2020.

U.S. District Judge Thomas Zilly issued two orders on Jan. 13 regarding an ongoing lawsuit from residents and business owners who alleged the three-week protest and the city’s decision to abandon the Seattle Police Department’s East Precinct caused extensive property damage, monetary losses, and public safety concerns. The lawsuit additionally claimed the City of Seattle supported and encouraged the protests that lasted from June 8 to July 1, 2020, otherwise known as the “CHOP” period.

The judge sent the lawsuit to trial on two of five claims, dismissing three others. He also ordered the city to pay the attorneys’ fees for those affected by the missing text messages. Those suing the city will also be allowed to present evidence at trial that the city destroyed relevant information regarding the CHOP protests.

In his first order, Zilly wrote there is evidence of “gross negligence” by the city and significant evidence that the destruction of CHOP evidence was intentional and city officials attempted to hide the deleting of texts for months in the face of opposing lawsuits.

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“City officials deleted thousands of text messages from their city-owned phones in complete disregard of their legal obligation to preserve relevant evidence,” Zilly wrote. “Further, the city significantly delayed disclosing … that thousands of text messages had been deleted” and could not be reproduced or recovered.

The ruling states there is enough evidence to impose a “severe sanction” on the city. As such, the judge will instruct the jury at trial that they may presume that city officials’ missing text messages were “unfavorable to the City,” an action that could prove damaging to the city’s legal defense of decisions made during CHOP.

What’s become known as the “Hunters Capital” lawsuit was filed on June 24, 2020 by local businesses in the eight-block area later known as “CHOP.” Zilly’s ruling noted the plaintiffs’ attorney sent letters to the mayor’s office and other officials informing them of the lawsuit, but the city didn’t order officials to preserve relevant evidence, written and electronic, until July 22.

By that time, former Mayor Jenny Durkan, former Police Chief Carmen Best, Fire Chief Harold Scoggins, and four other key city officials at the time — assistant Police Chief Eric Greening; Seattle Public Utilities official Idris Beauregard; SPD’s chief strategy officer Chris Fischer; and Seattle Emergency Operations Center coordinator Kenneth Neafcy — had deleted thousands of text messages, according to the judge’s order.

“Notably, all text messages sent directly between these officials during the CHOP period cannot be reproduced or recovered,” wrote Judge Zilly. “As a result, substantial evidence has been destroyed by the city.”

The order also questions former Mayor Jenny Durkan’s reasons for her phone being purged. Durkan claimed she dropped her phone in water in July of 2020 and that “someone” set the phone to delete text messages older than 30 days. However, a forensic report filed in September 2022 as part of the Hunters Capital lawsuit found around 200 messages from the “CHOP period” had been deleted manually from the former mayor’s phone.

The report also said the texts of several other key officials were destroyed through phone resets clustered within the same month. In his order, Zilly wrote, “Mayor Durkan’s various reasons for deleting her text messages strain credibility.”

Notably, former Police Chief Carmen Best’s phone was also set to delete text messages after a month, despite her obligation to keep them due to pending litigation. Judge Zilly noted that the former chief apparently deleted more than 27,000 of those text messages by hand. By the time Best resigned on Sept. 2, 2020, no texts remained on her phone prior to that date, the order stated.

Additionally, Zilly ruled city officials were aware of their obligation to preserve messages on both city-owned and personal devices. He pointed to an earlier lawsuit filed by Black Lives Matter against the city on June 9, 2020, over allegations that police were using excessive force against protesters. Following that lawsuit, the mayor’s office issued a memorandum on June 19, 2020, to city employees, informing them of their responsibility to retain public records such as text messages.

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The tens of thousands of texts were deleted or destroyed after that memorandum was issued, and it was done despite “a well-established legal duty to preserve all text messages relevant to the litigation,” according to the judge.

While the city has been able to recover around 161,000 text messages from that period, key text exchanges from the “CHOP period” between Durkan, Best, and Scoggins cannot be restored.

“Mayor Durkan, Chief Best, Chief Scoggins, and other key city officials purged (through factory resets, changed retention settings, or manual deletions) thousands of CHOP-related text messages from their phones after they were under a clear legal obligation to preserve such information and without confirming that all of their text messages had been preserved through other means,” the judge wrote.

Further, the city did not disclose the missing messages to opposing attorneys until March 2021, despite Mayor Durkan allegedly becoming aware of the deleted messages in August 2020.

In addition to the city, the order also sanctioned Michael Malone of Hunters Capital for also deleting texts that should have been preserved. City attorneys will be able to present that evidence to a jury. Hunters Capital claims CHOP cost them close to $3 million in business.

In his second order, Judge Zilly ruled two of the claims against the city can go to trial, specifically the allegations that the city “directly participated” in creating CHOP through its decision to provide portable toilets, hand-washing stations, dumpsters, and other accommodations during the three-week protest.

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He also ruled a jury should decide whether the city’s actions amounted to a “right-of-access taking” by allowing the protesters to disrupt access to local businesses.

The lawsuit also alleged a violation of due process rights by the city, as well as negligence and illegal taking of property and civil rights. Zilly dismissed those claims.

In a statement, City Attorney Ann Davison’s office emphasized the three claims dismissed by the judge and also said, “the city undertook significant efforts to locate potentially missing text messages between City Officials related to this matter and provided a massive amount of discovery to the plaintiffs in this case.”

Durkan and Best have yet to respond to requests for comment.